USA v Texas - a deeper dive into the Complaint

I mean how dare my actual J-O-B get in the way of my Substack work -note my dripping sarcasm. So now that it’s COB let’s get down into the nitty gritty of the complaint

Entirely Optional Background

• September 3, 2021 Facts v Fiction concerning Texas SB8 and Roe v Wade implications

• September 3, 2021 Texas State Court 459th Judicial Branch, TRO granted

• September 6, 2021 Attorney General Garland’s statement on Texas SB8

• September 8, 2021 -data, statistics, and a brief overview of USA v Texas -I provided you with numerous original sourced documents that not only affirm the tweet below but also gives you the quantitative and qualitative facts to support the assertion…

Julián Castro @JulianCastro

Greg Abbott’s abortion ban does not even make an exception for rape. But he says we shouldn’t worry because his #1 goal is to “eliminate all rapists.” Texas leads the nation in the number of rape incidents. Clearly Abbott hasn’t made preventing rape a priority.

Attorney General Garland - “The act is clearly unconstitutional under longstanding Supreme Court precedent..”

In further reading of today’s USA v Texas complaint — it appears the Government has zeroed in on numerous aspects of the constitutionality of SB-8 but let’s drill down a little bit more. https://www.justice.gov/opa/press-release/file/1431596/download

S.B. 8’s design is to stymie judicial review…

S.B. 8 Deputizes Private Parties to Act as State Actors in a Public Enforcement Scheme and Uses the Judicial System to Deprive Women of Their Constitutional Rights. The DOJ actually highlighted various public statements from the Chief architects of SB-8. For Example @SenBryanHughes —,it would be a shame if his tweets ended up being used in future litigation, but if nominations are being accepted than here’s my entry:

Senator Bryan Hughes @SenBryanHughes

Great news from @govkristinoem. #HeartbeatBill #txlege

Governor Kristi Noem @govkristinoem

Following the Supreme Court’s decision to leave the pro-life TX law in place, I have directed the Unborn Child Advocate in my office to immediately review the new TX law and current South Dakota laws to make sure we have the strongest pro life laws on the books in SD.

Pages 8 thru 12 (paragraphs 28 thru 35) I would like to explain what the Government is doing - the aforementioned sections of the Complaint goes to the materiality and intent of those who chiefly wrote SB-8. And while some might say that’s irrelevant —I’d argue it’s actually relevant because the Government is attempting to establish the predicate for the “intent” —specifically the State of Mind for the architects of SB-8 and let me tell you if this complaint survives the Defendants predictable Motion to Dismiss - discovery is going to be lit AF. Meaning the fact that the Government has, appropriately points out (see paragraph 31) of State Senator Bryan Hughes public comments;

• Behind Texas Abortion Law,an Attorney’s Unusual Enforcement Idea, Published September 4, 2021 by The Wall Street Journal - Bryan Hughes stated that the intent of Texas SB-8 was “to avoid the fate of other “heartbeat” bills that have been struck down as unconstitutional….We were going to find a way to pass a heartbeat-bill that was going to be upheld.”

• Crafty lawyering on Texas abortion bill withstood SCOTUS challenge in that September 5, 2021 Reuters Article State Senator Bryan Hughes stared; “very elegant use of the judicial system.”

Moving on to paragraphs 32 thru 35 - I am genuinely glad that the DOJ cited the following cases because the construct of their argument is pretty rock solid - in non=legalese the Government’s argument is irrespective that the State of Texas has vested the enforcement to private citizens that means they are still acting as “agents” of the State of Texas and that they are still bound by the Constitution. I genuinely enjoy reading well written briefs.

• Shelley v. Kraemer, 334 U.S. 1, 14 (1948) ¹ a landmark ruling where SCOTUS held; “…that standing alone, racially restrictive covenants do not violate the Fourteenth Amendment. Private parties may abide by the terms of such a covenant, but they may not seek judicial enforcement of such a covenant, as that would be a state action. Thus, the enforcements of the racially restrictive covenants in state court violated the Equal Protection Clause of the Fourteenth Amendment.”

• The State Action Doctrine (sometimes referred to as the Parker Immunity) the Government cites Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531U.S. 288, 295 (2001) ² SCOTUS held: “…that the pervasive entwinement of state school officials in the ostensibly private organization, which regulated school sports, and the state education board's acknowledgment of the organization, indicated that the organization is a state actor for civil rights purposes…”

• Supreme Court has deemed individuals to be state actors where they exercise “powers traditionally exclusively reserved to the State.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928-29 (2019) ³… S.B. 8 vests individuals with law-enforcement authority—a power traditionally reserved exclusively to a sovereign—in a manner that appears to be “unprecedented,” Whole Woman’s Health v. Jackson, 2021 WL 3910722, at *2 (Roberts, C.J., dissenting) ⁴

Again the observation that the Government makes that the “private citizens” are effectively agents of the State of Texas, but SB-8 doesn’t offer any meaning oversight yet overly restricts a defendant’s affirmative defense while severely limiting both the State of Texas Courts and Federal Courts, that’s not creative lawyer writing that’s actually weaponizing the Judicial System while simultaneously putting a chilling effect on a woman’s lawful right to seek an abortion…I’d call it subterfuge and bullshit…

These individuals are also state actors to the extent they are significantly involved in conduct that would be unconstitutional if engaged in by the State itself or Texas has sanctioned their conduct. See, e.g., Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967) (finding state action where law “authorize[d] . . . racial discrimination in the housing market”)…S.B. 8 implicates this doctrine by expressly authorizing—indeed, empowering—individuals to engage in conduct that violates the constitutional rights of women throughout Texas, in a manner in which the State itself would not be able to engage…

Even I can say I didn’t have Interstate Commerce on my SB-8 Bingo-Bango card. But I’m glad that the DOJ sure did because this helps buttress potential future federal funding claims that might be an issue —let’s say with Medicaid, Medicare and other HHS Healthcare Austerity programs

Really read these paragraphs closely because it all but affirms the previous assertion. Especially paragraph 39 -because the overreach of SB-8 is far more pernicious than many first thought

..S.B. 8 purports to require the United States to terminate existing monetary contracts and agreements that involve the insurance of or reimbursement of the abortion services S.B. 8 bans.

Let me translate the legalese here - Texas SB-8 basically says “shove SCOTUS’ undue burden” doctrine and further we the great flaccid misogynistic douche baguettes, that is the old White Conservative men of Texas matter more than women. Your uterus is ours and you’ll like being handmaiden because your duty is to submit to your husband and your sole value to Texas is your uterus. Can you tell I’m completely over the over-reach and recalcitrant & flagrant misogyny —because I am…,

…constitutional rights of the public at large and seeks to block the injured members of the public from challenging that law in court. The United States may sue to vindicate its interest in preventing Texas from effecting such a constitutional violation.

The President also has the duty to “take Care that the Laws be faithfully executed,” U.S.Const., art.II,§ 3, a duty that is carried out in part by the Attorney General of the United States. See, e.g., Ponzi v. Fessenden, 258 U.S. 254,262 (1922).

S.B. 8 Unconstitutionally Restricts the Operations of the Federal Government and Conflicts with Federal Law

Paragraph 40 speaks directly to the interstate commerce injury that the Federal Government will likely suffer -specifically increased cost with contractors, particularly 3rd party vendors…because it’s clear SB8 liability would have pretty wide reaching effects on the Federal Government and various Agencies, who by law are obligated to provide abortion related services. If Texas thinks they can tell the Federal Government what they can and can not do —then either SB-8 should be struck down “in toto” or Texas should forgo all future federal funding and just go forward with secession because SB-8 is beyond extreme it’s radical and it endangers the lives of tens of thousands of Texan Women…

“…S.B. 8 exposes federal personnel and grantees to liability for carrying out their federal obligations to provide access to abortion-related services to persons in the care and custody of federal agencies and interferes with federal contracts and grants with third-party providers who are obligated under their agreements to provide abortion- related services but refuse to do so to avoid liability under S.B. 8.”

Summary:

The DOJ complaint seeks a declaratory judgment that SB8 is invalid under the Supremacy Clause and the Fourteenth Amendment. SB-8 is preempted by federal law, and violates the doctrine of intergovernmental immunity.

• order, preliminarily and permanently, enjoining the State of Texas, including its officers, employees and agents, including private parties who would bring suit under the law, from implementing or enforcing SB8.

•  Texas enacted SB8 in open defiance of the Constitution by banning abortion at approximately six weeks in nearly all cases.

• law violates individuals’ rights to have an abortion procedure prior to viability, which is usually around 24 weeks.

• no exceptions for pregnancies that result from rape, sexual abuse, incest or for pregnancies involving a fetal defect incompatible with life after birth.

• SB8 apply to anyone who performs or induces a prohibited abortion, anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited abortion, and even anyone who “intends” to perform or aid a prohibited abortion.

• the state has deputized ordinary citizens to serve as bounty hunters, statutorily authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her own constitutional rights.

“The Act is clearly unconstitutional under longstanding Supreme Court precedent..The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.”  Attorney General Garland

Again you can read the full complaint; https://www.justice.gov/opa/press-release/file/1431596/download

What happens next?

Well that’s easy, we have to wait and see how Texas will respond —as in can they prove or disprove the arguments the Government lays out. The State will likely file a motion to dismiss. And I genuinely hope the DOJ’s complaint survives the MTD but I’m a little bit concerned that the DOJ didn’t filed in DDC and instead opted to filed in Federal District Court in Austin TX but I kind of understand why the DOJ filed in Texas -as that would immediately inoculate Texas’ jurisdiction and venue counter argument.

At any rate I hope this follow up article provides you with actual useful information and as always if you have questions—please feel free to leave a comment. And remember I’m of the the only dumb question is the question that’s not asked -school of thought..

1. Shelley v. Kraemer, 334 U.S. 1 (1948) - was a landmass SCOTUS ruling, see Law Library of Congress Link https://tile.loc.gov/storage services/service/ll/usrep/usrep334/usrep334001/usrep334001.pdf - last accessed September 9, 2021

2. I’d actually argue that Brentwood is a progeny of Parker v. Brown, 317 U.S. 341 (1943) See Law Library of Congress link https://tile.loc.gov/storage-services/service/ll/usrep/usrep317/usrep317341/usrep317341.pdf -last accessed September 9, 2021 which established the doctrine that “actions taken by state governments were exempt from the scope of the Sherman Act” - Brentwood Academy v. Tennessee Secondary School Athletic Assn. (n.d.). Oyez. Retrieved September 9, 2021, from https://www.oyez.org/cases/2000/99-901

3. Manhattan Community Access Corp. v. Halleck. (n.d.). Oyez. Retrieved September 9, 2021, from https://www.oyez.org/cases/2018/17-1702 - holding; “…Under established doctrine, a private entity may qualify as a state actor if it exercises “powers traditionally exclusively reserved to the State,” but admittedly “very few” functions fall into that category. Operating public access channels on a cable system is not a power “traditionally exclusively reserved to the State.”

4. I’ll keep saying this but reading dissents are often far more instructive than the majors opinion and I walked you through what I thought was relevant in Chief Justice Roberts’ dissent -so it’s not at all surprising the Government actually cites his dissent.

Roe v Wade in Jeopardy- maybe? Remember the judicial triangle; District Court —> US Circuit Court of Appeals —> Supreme Court -MAJOR UPDATE-TRO GRANTED