Can DoJ Overcome The Injunction Dilemma of Texas’ SB8?

For all the drama, lawprof Howard Wasserman has been dissecting what he calls the “procedural puzzles” that confront the pre-emptive efforts to enjoin Texas’ abortion law, SB8. For the non- and unduly passionate lawyers, this all seems silly, as such details ignore the only real legal issue, that the law is unconstitutional and so something must be done. But what, by whom and against whom? This is where the United States steps into the fray.

The Justice Department argued in its emergency motion that the state adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights,” reiterating an argument the department made last week when it sued Texas to prohibit enforcement of the contentious new legislation.

“It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’” the department said in the lawsuit. “But Texas has done just that.”

There is no serious question that the law is unconstitutional under existing precedent, although likelihood of prevailing on the merits is a factor in seeking preliminary equitable relief, so it’s a necessary component of the argument. The problem is that it’s not the sticking point.

As such, the department asked Judge Robert L. Pitman of the Western District of Texas to issue a temporary restraining order or a preliminary injunction that would prevent enforcement of the law.

“This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States,” the Justice Department said in its brief.

It may come as a shock to non-lawyers, but there is no such thing as enjoining enforcement of a law. Courts can enjoin a party, whether it’s the Republic of Texas or some individual bent on claiming his bounty from an abortion provider, but not a law. And this is the problem Wasserman addresses, that nobody has as yet stepped forward to be the test case for the law.

This will likely require providers and advocates to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8. But providers so far have not performed or announced an intent to perform a prohibited post-fetal-heartbeat abortion that could trigger suit.

It’s not that one can blame either providers or activists for not wanting to be the test case against SB8, but that without an actual case and controversy, an actual defendant against whom an injunction can be imposed, the procedural puzzle remains. But what about the United States? Has the DoJ found the magic sauce to seek an offensive injunction against Texas?

The civil actions that S.B. 8 incentivizes are an appropriate target of injunctive relief. Although the Anti-Injunction Act generally provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State,” 28 U.S.C. § 2283, that rule “does not apply when the United States seeks the injunction[.]” In re Grand Jury Subpoena, 866 F.3d 231, 233 (5th Cir. 2017). Federal courts may therefore enjoin state court proceedings that the Constitution prohibits. See Dombrowski v. Pfister, 380 U.S. 479, 485-86, 497 (1965) (where “defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights” but, rather, would entail “a substantial loss or impairment of freedoms of expression,” equitable relief restraining state prosecution is appropriate). Here, it is appropriate for the United States to essentially “obtain[] a stay of state court proceedings” where doing so would “prevent threatened irreparable injury to a national interest.” Leiter Minerals, Inc. v. United States, 352 U.S. 220, 290-91 (1957).

The “national interest” at stake here is the impairment of a right guaranteed under the Constitution, no small matter in itself and manifested in more explicit government policies, laws and funding. But this goes to the United States’ interest as movant. But they move not against any defendant seeking to employ the law, but Texas, which can’t enforce the law.

First, the Court could enjoin any person who files suit under S.B. 8 from prosecuting his or her claim. Here, an injunction against Texas can run to the individuals who file civil enforcement
actions because, at a minimum, those individuals would qualify as “persons who are in active concert or participation with” the State. Fed. R. Civ. P. 65(d)(2)(C). The purpose of Rule 65 is to prevent defendants from creating schemes to evade judicial review and enforcement by ensuring that injunctive relief “not only binds the parties defendants but also those identified with them in interest, in ‘privity’ with them, representedby them or subject to their control.” See RegalKnitwear Co. v. N.L.R.B., 324 U.S.9,14(1945). This rule is based on the principle that “defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.” Id. Accordingly, an injunction may run against a nonparty that is in “‘privity’ with an enjoined party,” including a “nonparty whose interests were represented adequately by a party in the original suit.” Texas v. Dep’t of Labor,929 F.3d 205, 211(5th Cir.2019).

DoJ argues that any potential individual seeking to enforce the law is in privity with Texas based on this scheme to evade pre-emptive review, and as Texas can adequately represent their interests, it’s a proper party to enjoin.

Second, an injunction against the State—enjoining proceedings initiated under S.B. 8—could
specify that it runs to the state judiciary. It has “long been established by decisions of th[e] [Supreme] Court” that “the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

The government’s secondary argument is that an injunction against Texas will flow to its courts and judges, precluding them from conducting proceedings under the law. And if these arguments weren’t sufficiently imaginative, the DoJ then points at a very interesting group of state employees who are necessary to making any enforcement action happen.

Finally, an injunction prohibiting the State of Texas from enforcing S.B. 8 could also specify
that it enjoins all state employees and officers needed to administer civil actions regarding S.B. 8 or to enforce judgments arising from those actions. Relief against the State could bind, for example, clerks that would docket complaints seeking S.B. 8 damages, as well as officers of the State charged with enforcing any money judgment pursuant to the statute.

If clerks were enjoined from docketing cases, they would die on the vine. This last argument is not only the most imaginative, but perhaps the best hook into justifying an injunction against a state that can’t enforce a law, but then can’t proceed on a law without its employees doing the clerical work to make it happen. Did the United States find the magic way to obtain an injunction against SB8 without any provider or activist putting themselves at risk of loss? It will be very interesting to see whether Judge Pitman bites.

20 thoughts on “Can DoJ Overcome The Injunction Dilemma of Texas’ SB8?

  1. Quinn Martindale

    There’s no authority cited for the proposition that an injunction could bind court clerks, and it would be a nightmare to implement since they don’t read the filings.

    1. SHG Post author

      I’m reliably informed by the best and brightest law students that the only time courts rule against what they like is when it’s partisan and evil, because otherwise they wouldn’t be so very wrong.

  2. DaveL

    Here’s what concerns me:

    Although the Anti-Injunction Act generally provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State,” 28 U.S.C. § 2283, that rule “does not apply when the United States seeks the injunction[.]

    The Texas legislature has created a Frankenstein monster of a law that they can use to chill the exercise of an established constitutional right while evading judicial review. This law represents a template that could be used by any state to chill virtually any right enjoyed under the Constitution.

    The DOJ has now presented a plausible answer as to how an injunction could be targeted so as to cut through the Texas law’s obfuscation, but it’s an argument only the DOJ is allowed to make. If they’re successful, they can ride to the rescue regarding any constitutional right thus threatened. What happens if a state targets a right not favored by the current federal administration? Will a Republican DOJ intervene to stop the next anti-abortion bill? Would the Biden DOJ bring the hammer down on a state using the same tactics against the 2nd Amendment?

    1. SHG Post author

      As lawmakers eschew concern for constitutional constraints, this is going to be an increasingly serious problem. Your point is well taken, but that’s the nature of politics.

  3. PseudonymousKid

    No. There’s not a “sufficiently close” legal relationship between Texas and those citizens who would enforce a state law to conclude that they are in privity. Parallel interests aren’t enough. “Adequate representation does not exist where a nonparty is merely interested in the same issue or same set of facts, ‘or because the issue being litigated is one that might affect their interests by providing a judicial precedent that would be applied in a subsequent action.'” That 5th Cir. case. This is beside the fact that the argument that a state could be in privity with every single one of its citizens because each citizen could individually enforce a state law destroys my strict understanding of the concept of privity and motivated me to actually look at the 5th Circuit case cited.

    I’d love a clean workaround to what Texas did, but privity isn’t it, I hope. I also see the potential for vast unintended consequences from expanding the concept of privity, but down those rabbit holes I will not go.

    1. Quinn Martindale

      We’ll see, but I think the motion does a good job of explaining why Texas v. Department of Labor, 929 F.3d 205 (5th Cir.2019) doesn’t prevent an injunction affecting individual citizens. In that case, the Eastern District of Texas had enjoined the Department of Labor from enforcing a new overtime rule then held a plaintiff who filed an FLSA lawsuit that relied on that rule in contempt. The 5th circuit overturned the court and held that that the plaintiff wasn’t bound by the injunction because she had suffered a “private legal wrong” and had an independent private action. Id. at 212-213.

      The SB8 litigation is much closer to the case the 5th Circuit was distinguishing in Texas v. Department of Labor. In that earlier case, the 5th Circuit held that an injunction against the City of Dallas barred airlines from filing suit on the same grounds. Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84 (5th Cir. 1977). The holding in that case is directly on point: “In their attempt to apply the 1968 Bond Ordinance to Southwest, the CAB airlines assume the role of private attorneys-general. In effect, they would enforce the ordinance’s phase-out provision by excluding Southwest from Love Field. The City of Dallas has already failed in its attempt to effect such an exclusion. We hold that the carriers should be bound by that failure.” Id at 97.

  4. RTM

    It’s early and I haven’t thought about it until now but perhaps a reverse Obergefell injunction against the clerks? If there’s a constitution right to have an abortion then state clerks may be susceptible to an injunction if their actions in docketing cases under the unconstitutional state law stymie that right. Maybe the post Obergefell decision injunctions against clerks who refused to issue marriage licenses would provide a precedent for doing so.

    1. SHG Post author

      Obergefell required the performance of an affirmative duty. Does that change the analysis? Does that fix the untenability problem of clerks having to vet pleadings rather than stamping papers in?

      1. RTM

        I believe the clerks must take an oath to, among other things, defend the Constitution and laws of the United States. I assume that extends to acts of both commission and omission. As to onerous task vetting papers, maybe they would just have to review the relevant civil case information sheet to see if the case is brought under SB8. Or perhaps the injunction could require post-filing rejection of the complaint after a defendant brings the filing to the clerk’s attention. Interesting issues which require more analysis than my off-the-cuff chiming in here can supply.

  5. Jardinero1

    In the meantime, Texas abortion providers are not providing abortions, not collecting the fees thereof, and wondering how they will pay staff, rent, and utilities. The clock continues its ceaseless tick, tick, tick until the clinics are shuttered… 30, 60, 90 days, tops. Starting a new clinic is no trivial matter. Yet, no citizen has presented a single case against an abortion provider. Go ahead, enjoin the clerks, I tell you! It’s so crazy, it just might work.

  6. Paleo

    I live in Texas, do not wish to discuss abortion, and have no desire to ever sue anybody for anything.

    But just for the sake of discussion, let’s say that I’m frothing the mouth to file one of these suits at the first opportunity. How will I know? Presumably abortions have regularly been done around where I live for years and years and I’ve never anything heard about any of them, much less specifics like who was the mother and how far along they were. Planned Parenthood is not like McDonald’s with the “5 billion served” signs.

    Without proof, how does the plaintiff win? Will people be forced into discovery with no info suggesting something has occurred? With all the drang and sturm about this law, does it really have teeth?

    1. SHG Post author

      Perhaps someone “zealous” enough will wait outside a clinic for their deft or ask around at cocktail parties? Beats me.

  7. Captain Bligh

    This is intended as a serious, though naive and ignorant question. I understand that Texas SB8 gives enforcement authority to anyone who wishes to bring suit. Could “The People of Texas” (or “The People of the US”) not be enjoined against enforcing the law? Flip the criminal-indictment formulation and style the suit DoJ vs The People of the United States? If anyone can enforce, then everyone must be enjoined to prevent enforcement. Obviously there would be questions of practicality before the court, but the trying judge could determine appropriate representation for the defendants etc.

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