Tuesday Talk*: Tribe’s Fix For Texas’ “Private Attorneys General”

After once-respected Harvard Prawf Larry Tribe’s imaginative if disastrous journey down the road to eviction moratorium 2.0, which lasted all of about 12 minutes until he embarrassed a president (who wasn’t Trump) for deliberately engaging in unconstitutional conduct and himself for being Dersh’s bookend, one would have expected a bit of circumspection. Perhaps even humility, given how flagrant his indulgent exercise in fantasy proved. But no. Larry Tribe is back, and he’s got another brilliantly imaginative idea!

The Texas legislature and five Supreme Court justices have joined forces to eviscerate women’s abortion rights — the legislature by creating and the justices by leaving in place a system of private bounties designed to intimidate all who would help women exercise the right to choose. But the federal government has — and should use — its own powers, including criminal prosecution, to prevent the law from being enforced and to reduce its chilling effects.

Much as I disagree with the Supreme Court’s decision not to preserve the status quo ante, to characterize the decision as evisceration of women’s abortion rights is disingenuous. Not that a great many have chosen to claim that this interim ruling has “effectively” reversed Roe v. Wade, and not that many have bought into the narrative that hasn’t remotely happened, but that the failure to enjoin Texas’ law did expose women who choose to exercise an extant right (whether you like it or not) to peril under this terrible law.

But if and when some warrior takes up arms against it, the case will ripen into controversy, at which point the courts will be tested. But Tribe isn’t prepared to wait for a merits ruling. Rather, he wants to make a different sort of federal case out of it.

The attorney general should announce, as swiftly as possible, that he will use federal law to the extent possible to deter and prevent bounty hunters from employing the Texas law. If Texas wants to empower private vigilantes to intimidate abortion providers from serving women, why not make bounty hunters think twice before engaging in that intimidation?

For example, Section 242 of the federal criminal code makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

The law, originally directed toward the KKK, presents some intriguing possibilities.

Again, the Texas scheme could hardly be more perfectly designed to match the language of that section. The whole point of the Texas law, after all, is to intimidate abortion providers and others by threatening them with penalties of at least $10,000, plus legal fees, in the form of bounties to be paid to the vigilante. Even jurists who believe the Constitution does not protect abortion rights might be given pause by this seizure of private property, with unlimited penalties not tied to any actual harm suffered by the bounty hunter.

The use of “private attorneys general” is novel in this context, but not unheard of in law. Many laws against discrimination and environmental harms provide similar enforcement schemes, allowing unharmed plaintiffs to sue and collect a bounty for their efforts under the guise of it serving the public interest. Texas seized the opportunity to use this scheme for the purpose of shutting down access to abortion.

But is prosecuting “vigilantes” for depriving women of their constitutional rights under Roe and Casey a viable solution? The right solution? Granted, the left’s anti-carceral views seem to ebb and flow with stunning hypocracy, but that’s neither here nor there. The right to an abortion remains a constitutional right, even if unenumerated, until such time as the Supreme Court holds otherwise. And I think it’s highly unlikely it will, even though it failed to enjoin this misbegotten Texas law in the meantime.

Should the United State prosecute any Texan who seeks to avail himself of the cause of action, not to mention remedy? Can it? Did Larry get one right for once? And if Tribe has a point this time, what are the ramifications for other states enacting laws favoring the rights of some over the constitutional rights of others, such as free exercise becoming subservient to transgender  anti-discrimination? Should that too subject its litigants to federal prosecution, or will the government only prosecute people for pushing unfashionable rights over enumerated rights?

*Tuesday Talk rules apply.

11 thoughts on “Tuesday Talk*: Tribe’s Fix For Texas’ “Private Attorneys General”

  1. Mike

    I, for one, cannot wait for President DeSantis to use this line of reasoning against Twitter et al. for depriving the rights of so many that were banned.

    It’s quite amazing that both parties have thoughts that amount to “this can’t possibly go wrong and be used against us”.

    Have the feds ever used 242 in response to laws that are seemingly unconstitutional?

      1. PseudonymousKid

        But you just said I should get off my ass and work. Where does that leave time for engaging with your interesting questions? I can’t be funny and illuminating everywhere at once.

  2. Rengit

    If Tribe’s plan is plausible, this is an absurd result: if government officials deprive people of their constitutional rights, they almost always get qualified immunity, and in some cases retain sovereign immunity. So no civil or criminal consequences. Meanwhile, if the private attorneys general option is used, a citizen who believes he is enforcing the law as encouraged by the state, but who is mistaken on the constitutionality of that law (the average citizen being even less informed on constitutional rights and legal questions than government officials), will be criminally prosecuted by the feds, provided of course that the federal government favors the constitutional right in question.

    This result seems inappropriate for the conduct that the drafters of Section 242 had in mind, flagrantly illegal conduct under state and federal law like bombings, murder, direct threats of violence, kidnappings, and arson, but done with the tacit approval or even collusion of state and local officials, to prevent black people from voting or engaging in political organizing.

  3. szr

    If Tribe’s proposal were adopted, it would terrify me.

    Acts done under “color of law” generally refers to acts by federal, state, or local officials within their lawful authority, or acts beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his or her official duties. Whatever else these citizen bounty hunters might be, the Supreme Court does not consider them state or local officials. Tribe is proposing a massive expansion of Section 242 criminal liability.

    I am outraged by the Texas legislature’s cynical attempt to outsource an abortion ban by encouraging private parties to sue abortion providers into financial ruin. But Tribe’s solution is worse than the disease!

  4. Christopher Best

    Would it work? Sure, it might. Even if they couldn’t reliably get convictions, it might have a chilling effect on filing the cases in the same way the threat of these lawsuits is apparently chilling abortion providers… But it really feels like letting a genie out of the bottle. Once you cross this threshold, a future administration who has a less sanguine view of e.g. anti-discrimination or environmental protection laws might find this a useful tool to protect “innocent businesses” being preyed upon by “greedy lawyers.”

    Just like Trumplaw injunctions re: the administrative procedures act have been very helpful monkey wrenches to toss in Biden’s agenda, I imagine this practice would be gleefully adopted under a not-too-unrealistic Trump 2024 Presidency for uses that would make Mr. Tribe very very sad.

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