It is encouraging to see good legal analysis blow potential legal avenues in the Texas abortion law, as even the common man knows that this law is screwed up 6 ways from Sunday.
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Aside from the obvious civil rights violations sanctioned by the 5 Freds and OfFreds on the court, It still blows me away that they can argue with a straight face that SB 8 is too complicated for it to take up, given that 1) it’s not at all complicated and 2) there’s precedent for overturning such a transparent sidestep. It’s almost as insane as the idea that a law being “too complicated” is a great reason to allow it to be implemented rather than enjoined until someone can fucking “explain” it to them.
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In the 1982 case Larkin v Grendel’s Den, the issue before the Supreme Court was a Massachusetts statute that allowed a church to deny a liquor license application of a neighboring restaurant. Section 16C of Chapter 138 of the Massachusetts General Laws stated:
“Premises . . . located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto.”
SCOTUS noted in its decision to invalidate the Massachusetts statute:
§ 16C delegates to private, nongovernmental entities power to veto certain liquor license applications. This is a power ordinarily vested in agencies of government.
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This only makes the decision of the Republican Supreme Court to allow the law to go into effect even worse…they didn’t just ignore Roe v Wade and Casey, they ignored nearly a century of jurisprudence that said this kind of law was unconstitutional. The fact that it was formerly used to uphold racial segregation makes it stink that much more.
If they are willing to pull this kind of garbage, then it’s really a question of how far they will go to do whatever they want. It’s clear that the law does not matter to five of the justices (Roberts does care about the law and the SC’s reputation, even as he tries to find ways to put his own spin on it), which means that there may be no bounds to what they will do to our society in their push to install a white supremacist Christian theocracy on the nation. It’s just another way we’re back in the 1850s, with justices that will declare laws from the bench that serve their desires instead of the Constitution and the people.
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It’s pretty common for folks to create a God in their own image.
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It stinks for sure, but the sense I’m getting is that the Fanatic Five on the court just whiffed on the first complaint because they want a better one to use for striking down the Texas law. Like maybe the DOJ lawsuit. This Texas case probably isn’t the state law they want Roe to be decided on. The Mississippi law under review is a cleaner kill shot.
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But Larkin does not stand for the proposition that a state cannot delegate its power to any private person or entity, notwithstanding Larry Tribe’s current efforts to spin it that way. The Court specifically held that this specific delegation at issue was unlawful because it violated the Establishment Clause to give veto power to the church. There is no Establishment Clause problem with SB 8.
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No, there is no such body of jurisprudence.
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… or perhaps the ever-delightful game of grabbing your arm and flipping it back towards you while chanting “stop hitting yourself! Why are you hitting yourself?”
There is no “private right of action” without the apparatus of the state courts
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Dear Texas, It’s kind of hard to pitch yourself as the state for the 21st century economy when you insist on governing like it’s the 19th century.
— Dan Rather (@DanRather) September 12, 2021
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“19th century”? Dan Rather is being far too kind. Texas is acting as though Ferdinand and Isabella are still in power.
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It seems obvious that either these private citizens acting to enforce SB8 are ‘deputized’ by the legislature and therefore are state officials prohibited by SB8 itself, or they are simply vigilantes acting under false color of the law and as such are violating constitutional civil rights. What other alternative analysis is there?
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By the end of September, the administration is anticipating the arrival of 65,000 Afghan refugees to the United States.
“And how was your day, dear?”
“Same-o same-o. We’re planning to attack Biden for the invasion of the refugees.”
“Is there an invasion? Should we build a cellar?”
“Hell no, there’s no invasion. We have to convince everyone that Biden is evil incarnate.”
“Oh, Same-o. Same-o. Would you like a burrito, dear?”
The civilians would plainly be acting as authorized agents of the state in enforcing the state’s prohibition on post-heartbeat abortions. That makes the state amenable to suit as the principal of its vigilante agents.
And even if you don’t construe the vigilantes as agents of the state, they have no standing to pursue claims in court because they have no suffered any individualized injury from anyone else’s abortion. Vigilante standing is not a thing.
And finally, the courts would plainly be state actors enforcing an unconstitutional statute. All the more reason the state is a proper defendant, despite its attempt to disclaim enforcement power.
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Yes…
The prevailing SCOTUS jurisprudence…
IOKIYAR…
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Really like your argument, and completely agree : - ) However…
Vigilantes are people too, no?
As are virtually all criminals. 
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