Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

NOT ABOUT ABORTION

This column is not about abortion. But it is about the new Texas abortion law.

As you’ve probably heard, Texas recently enacted the most restrictive abortion law in the United States. In one respect the law is not unique: It seeks to ban abortions long before fetal viability, a clear violation of the standard established in Roe v. Wade1 and refined in Casey v. Planned Parenthood. 2 Other states have enacted similarly restrictive statutes. Some of those statutes are currently being challenged in court. While those challenges are pending, the courts have enjoined their implementation.

The Texas statute is also being challenged. This time, however, the Supreme Court has refused to enjoin its implementation while the challenge is pending.3 That’s because the Texas statute differs from other abortion bans in the manner of its enforcement. Texas will not enforce the statute directly. Instead, it has delegated enforcement to, well, anyone—anyone enticed by a bounty of $10,000, plus legal fees and costs, per violation.4

This creates a practical question: Whom should opponents of this law sue? There’s no state official in sight. So should they sue the people, whoever they are, who file enforcement claims? Well, okay, but upon what basis? A constitutional violation? The Constitution only protects us against government action. Are these private plaintiffs acting privately, or upon behalf of the state government? For the record, I think it’s pretty clear that they are, effectively, state actors,5 but Texas has muddied the waters—muddied them enough, apparently, that five members of the Supreme Court don’t know what to do.6

I must admit, the Texas statute has confused me, too. So I was very glad to see a recent Facebook post by my friend and colleague, Ben Vernia, a former federal prosecutor, and a graduate of Tennessee’s own Vanderbilt Law School. Ben spells it out: The Big Lie of the Texas abortion case (Whole Woman’s Health v. Jackson) is that Texas was clever in creating a “statutory scheme before the Court [that] is not only unusual, but unprecedented”—to quote from Chief Justice Roberts’ dissent. Nonsense. It’s not at all unprecedented. But that doesn’t make it legal. It just makes the Court’s refusal to enjoin it an enormous leap away from the rule of law. The Texas law is a classic example of a “qui tam” statute, one which empowers private citizens with the enforcement of a law. “Qui tam” is short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” or “he or she who sues on behalf of the sovereign as much as for him- or herself.” The majority (plus Roberts) acts as if Texas has come up with some astonishing innovation, when in fact qui tam laws go back hundreds of years, both here and in England. But that doesn’t make this law constitutional; it just means that the majority’s head-scratching at whether the state can be sued is either ignorant (quite possibly, because, on average, each of these five justices has less than ten years’ experience practicing law) or it’s gaslighting. Qui tam citizen-plaintiffs (called “relators”) stand in the shoes of the state, and there’s no logical or legal reason to conclude that the state, as a named defendant, is incapable of representing the state’s interest in the law’s viability.

You may recall that the executive branch (the president, federally; the governor, in Texas) is assigned the duty to “take care” that the laws are faithfully executed. Some courts have upheld qui tam laws (e.g., the federal False Claims Act, with which I’ve worked for about 25 years) against challenges that they impermissibly delegate the executive’s “take care” obligations, on the basis that the law includes provisions to ensure oversight of citizen suits by the executive branch.

Those provisions seem to be entirely absent in the case of Texas’s law, despite the fact that Texas’s constitution (like the United States Constitution), assigns the job of enforcing its laws to the executive. Tex. Const. Art. IV, Sec. 10. So, this is not some clever new loophole that Texas has discovered. It’s just a blatantly unconstitutional law (probably regarding both the right to abortion under federal law and the separation of powers under the Texas constitution). The Supreme Court’s bewilderment at how to deal with it is nonsense.

Okay, so, according to Ben, who has worked in this area for decades, the essential problem with this statute, beyond its immediate and continuing violation of Roe and Casey, is that it delegates unfettered executive authority to private citizens.7 I might add that this delegation has some pretty serious implications.

For example, what if California, with its democratic supermajority, were to borrow the Texas statute and substitute “gun” for “abortion?” The protections of the Second Amendment would instantly disappear in California. What if some other state were to use such a scheme to severely limit religious practices, or perhaps free speech—no more MAGA signs in New York?

As I said, this column is not about abortion, it’s about allowing a state—any state—to decide which of the individual rights protected by the U.S. Constitution it will honor, and which it will destroy. And that ain’t the way the Constitution works.8

1 410 U.S. 113 (1973). 2 505 U.S. 833 (1992). 3 594 U. S. ___ (2021), available at: https://www.supremecourt.gov/ opinions/20pdf/21a24_8759.pdf. 4 Texas Senate Bill 8, 87th Legislature (2021), available at: https://legiscan.com/TX/ text/SB8/id/2395961. 5 Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982). And even if the plaintiff in one of these enforcement cases were not a state actor, the state courts who will hear those cases certainly are. Shelley v. Kramer, 334 U.S. 1 (1948); New York

Times v. Sullivan, 376 U.S. 254 (1964). 6 Attempting to cut through this ambiguity, the Department of Justice has just filed a lawsuit directly against the State of Texas. United States v. Texas, Civil No. 1:21-cv796 (W.D. Texas, 2021). Complaint available at: https://www.justice.gov/opa/pressrelease/file/1431596/download. 7 The Court criticized such a delegation of executive power in Larkin v. Grendel’s

Den, Inc., 459 U.S. 116, 122 (1982). 8 U.S. Const., Art. VI.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.