Anything Texas can do California can do.
Oregon, too.
How about Oregon allow private party lawsuits of coal miners?
Texas created a law which effectively voids a Constitutional right. Texas created a private right to sue in state courts and collect $10,000, plus attorney fees, from anyone performing or "abetting" an abortion of a fetus of 6 weeks or older. The Texas legal strategy meant that the state of Texas didn't ban abortions; they just made doing them financially catastrophic. The political strategy was to target abortion providers, but not the woman seeking the abortion, potentially a sympathetic victim.
The Court let the law stand because a majority of the Justices liked the outcome, stopping abortions. It is a dangerous precedent because it opens the door to other states making their own Constitutional carve-outs.
California Governor Gavin Newsom just announced that California is starting work on a law identical to the Texas law, targeting AR15-type rifles instead of abortions. They won't allow private party lawsuits against gun owners, only the less sympathetic and deeper-pocketed gun manufacturers and sellers. This time the Court won't like the result--lawsuits against the gun industry. This forces the hand of the Court. Newsom tweeted:
SCOTUS is letting private citizens in Texas sue to stop abortion?! If that’s the precedent, then we’ll let Californians sue those who put ghost guns and assault weapons on our streets. If TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives.
His communications office published this:
The Court's legitimacy comes from its reputation for integrity and neutrality. Circumstances allowed Trump to appoint three Justices who changed the makeup of the Court. The Justices are fully understood to have been appointed to fulfill the political agenda of reducing or ending abortion. They were also appointed to fulfill the political agenda of preserving or expanding gun rights. That is why California creates a dilemma for the Court.
The Supreme Court may act faster to disallow the Texas suit strategy if they perceived there is a bandwagon underway. Action by Oregon would change the narrative from California tit-for-tat into one of an idea going viral.
Oregon can target coal. Oregon has a Democratic governor and a legislative super-majority of Democrats all of whom understand climate change to be a major problem. The Oregon legislature likely has the votes to copy the Texas and California strategy exactly, and allow private right of action to sue in Oregon courts and collect $10,000 from any manufacturer of coal burned as fuel that enters the state of Oregon. They could declare coal to be a hazard to air quality and public health. The only coal-fired electrical generation in Oregon ended in October, 2020, and there is no commercial coal mining in the state. https://www.eia.gov/state/analysis.php?sid=OR
Doesn't the Constitution's Commerce Clause, giving Congress sole power to regulate interstate commerce, make such an Oregon law impossible? Yes, of course, IF it were Oregon law banning coal. Instead this uses the Texas strategy of Constitutional circumvention.
Realistically, this is just a gesture, something to float into the news cycle as a credible threat, given the politics of Oregon. It need only require the governor, some candidate for governor, or some legislator to make a public request of Oregon's Attorney General for an opinion on whether such a law is possible, and to request one be drafted. That would be the news story:
"Oregon explores using Texas strategy to sue coal companies to protect Oregon environment."
Oregon would be sending a body-language-type message to the Supreme Court that their decision to let the Texas abortion law stand risks Texas-style laws from state-specific interests. Such an inquiry would also be a multi-pronged body-language message from whoever makes the public inquiry. It positions that person as someone concerned about both climate and abortion rights, and that the person wants actions, not words. It is a performance. It calls Texas' bluff. It shows that person is comfortable with the national attention this would draw, and that Oregon need not be me-too of California.
I suspect it is a low-risk-high-reward action for a Democratic officeholder or candidate. Environmentalists and abortion rights advocates would enjoy seeing the fighting spirit and the direct action against Texas's law. I am aware of no Oregon constituency who cares much about out-of-state coal miners. Whoever proposes this need not defend implementing an unconstitutional law--and should not. Admit right out that it has an unconstitutional effect. That is the point. He or she need only defend taking action to protect the environment and put a spotlight on the Supreme Court's constitutional abuse of the rights of women. That is a pretty safe place to be for an Oregon Democrat.
15 comments:
"I love it!" - Don Jr.
When the Texas law, which I think was done cynically, first was announced legal scholars pretty much unanimously called it unconstitutional, yet the SCOTUS allowed it, to everyone's shock and dismay. The precedent issue was mentioned then.
However, what's to stop this court from similarly banning a law? Certainly not integrity.
The Supreme Court has not ruled on the constitutionality of Texas’ new abortion law. All it has done so far is refuse to put a stay on that law. That makes sense because the court needs a case in order to make a ruling. If they put a stay on that law, how would there ever be a case?
Peter‘s idea could make for some interesting politics. :-)
On the surface it appears Trump was successful in destroying the American justice system - full stop!
No matter what the final outcome of the Mississippi abortion ruling is there is enough angst at the blatant partisan behavior of the court to essentially ask ourselves "how is this court different from Putin's Russian court?"
On a careful read of the news we can see the Congress is effectively muzzled (unable to pass legislation) and now the court has lost it's nonpartisan veneer (turned it's back on settled law), the way is now clear for an all-powerful POTUS to emerge in the January 20, 2025 inauguration.
California, going after 2nd Amendment Rights and Oregon taking on the Federal Interstate Commerce provisions only magnifies the partisan nature of recent rulings by the court.
Peter, that is such a great idea to have states use the citizen lawsuit to scare the Supreme court into acting!! Hope it works!
The Supreme Court is making an excellent case for Democrats stacking it while they have a chance.
"The Court's legitimacy comes from its reputation for integrity and neutrality".
Er, no. The Court's legitimacy comes from the Constitution, duly cemented as a co-equal branch and the final word in constitutionality in Chief Justice Marshall's opinion in Marbury v. Madison (1803).
The Court's integrity and neutrality overall does not rise and fall with leftists today being unhappy with recent outcomes, any more than it did during the perceived leftward bent of the Warren court.
To the extent procedural fairness IS important to leftist folks, "We think X. is bad. So we'll do X. too!" gimmicks hardly warrant praise, and are just as telling as the ersatz Biden plan to pack the Court.
To Low Dudgeon
I am unhappy that the Court is leaving something that s blatantly unconstitutional, based on the Supreme Court"s decisions, in place for over 3 months. They aren't enforcing their own rules. I expect a reversal of Roe v Wade. If that is what they are doing they should do it. But don't leave Texas' mechanism on the books--unless they like it, in which case California and Oregon and everyone else should do exactly what I propose.
Peter Sage.
Low D,
Given your knowledge of the law, do you think my reasoning is correct? That in order to rule on the Texas law the Supreme Court has to allow a case to occur? Could that be part of why they didn’t block it to begin with?
To L.D.
The Supreme Court's authority comes from the Constitution. Its legitimacy comes from its reputation for integrity.
It has no army. If VP Pence tossed out some electoral votes and declared Trump the winner, it would go to the Supreme Court. They would rule. Would their decision, perhaps, to say that VP Pence had no authority to do that, would their decision then cause GOP leaders to back down, even in the face of Trump being adamant that he won? There is is: the rubber meets the road. The power of the Supreme Court is its legitimacy, in the face of other sources of power, e.g. the states, the military, the president.
Peter Sage
Peter,
What you point out is how close we came to going the way of the Weimar Republic.
As for the Supreme Court’s authority, in a speech at Harvard Law School last April, Justice Breyer said the court’s authority depends on trust that it is guided by legal principles, not politics.
Michael—
I think you are correct—there must be a live. justiciable conflict between discrete parties—but it’s over my pay grade to know. The ridiculous Texas law is new territory. I suspect they plan a kitchen sink ruling which modifies Roe. Mr. Sage’s guests like Weisbard or commenters like Arnold have actual expertise here.
Mr. Sage—
Fair enough, points well taken. We must first define “legitimacy”, which etymologically denotes who is or is not entitled, by “birthright”, as it were, with the required standing. That overlaps with your sense of it, as in who is respected or treated as legitimate by others, for all practical purposes. For me, the second still follows and is reliant upon the first. The SCOTUS is not reliant upon goodwill and deference, as the Pope in Stalin’s famous quip, “How many divisions has he?”.
Say hypothetically Trump and his foot soldiers had prevailed on Pence to not certify Biden on 1/6, and refused to release the White House on time. Within hours of the inevitable SCOTUS ruling, U.S. Marshals would have arrived to escort Trump out, with Secret Service cooperation, because SCOTUS rulings have the immediate and categorical force of law as against any and all facets of government, and that’s not dependent upon transactional reputation, since 1803.
Low Dudgeon-
The Supreme Court issued a statement giving their rationale, available online, and it wasn't for lack of a live, justiciable conflict between discrete parties. The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions.
The SCOTUS is a joke.
People are disobeying whatever laws they feel like, and often using religion as an excuse.
Perhaps the state will restrict all firearms ownership and let us citizens file suit against those who break the law.
Remember Andy Jackson's comment when Marshall made his ruling on the Indian Removal Act: "Mr Marshall has made his ruling. Now let him enforce it."
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