Amicus Curiae Brief — United States, Petitioner v. Texas, et al.

Supreme Court briefOct 27, 2021

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No. 21-588

IN THE

Supreme Court of the United States

___________

UNITED STATES OF AMERICA,

Petitioner,

STATE OF TEXAS, ET AL.,

___________

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 27, 2021

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

Since the Early Days of the Republic,

This Court Has Recognized the Right

of the United States to Sue Even in

the Absence of Statutory

Authorization ........................................

This Court Can Recognize the United

States’ Right to Sue in This Case

Without Adopting a Broad or Novel

Reading of Debs ....................................

The Rationales Counseling Against

Recognizing a Public Right of Action

Do Not Apply Here ...............................

A. This Case Does Not Raise

Separation of Powers Concerns ......

B. This Case Does Not Raise

Federalism Concerns .......................

CONCLUSION .....................................................

II.

III.

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Arizona v. United States,

567 U.S. 387 (2012) ....................................

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) ....................................

Cooper v. Aaron,

358 U.S. 1 (1958) ........................................

Cotton v. United States,

52 U.S. 229 (1850) ...................................... 3, 7

Dugan v. United States,

16 U.S. 172 (1818) ......................................

Elrod v. Burns,

427 U.S. 347 (1976) ....................................

Ex parte Young,

209 U.S. 123 (1908) ....................................

Girouard v. United States,

328 U.S. 61 (1946) ......................................

Heckman v. United States,

224 U.S. 413 (1912) ....................................

In re Debs,

158 U.S. 564 (1895) ................................ passim

June Med. Servs. L.L.C. v. Russo,

140 S. Ct. 2103 (2020) ................................

Marbury v. Madison,

5 U.S. 137 (1803) ........................................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

McCulloch v. Maryland,

17 U.S. 316 (1819) ......................................

NLRB v. Plasterers’ Local Union No. 79,

404 U.S. 116 (1971) ....................................

Patsy v. Bd. of Regents of State of Fla.,

457 U.S. 496 (1982) ....................................

Planned Parenthood of Southeastern Pa. v.

Casey,

505 U.S. 833 (1992) ............................... 1, 14, 21

Roe v. Wade,

410 U.S. 113 (1973) ............................... 1, 14, 21

Roe v. Wade,

314 F. Supp. 1217 (N.D. Tex. 1970) ..........

Sanitary Dist. of Chi. v. United States,

266 U.S. 405 (1925) ....................................

United States v. Am. Bell Tel. Co.,

128 U.S. 315 (1888) .................................... 3, 9

United States v. Brand Jewelers, Inc.,

318 F. Supp. 1293 (S.D.N.Y. 1970) ............

United States v. City of Jackson,

318 F.2d 1 (5th Cir. 1963) ..........................

United States v. City of Philadelphia,

644 F.2d 187 (3d Cir. 1980) ........... 8, 16, 17, 19

United States v. Debs,

64 F. 724 (7th Cir. 1894) ............................

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Gear,

44 U.S. 120 (1845) ......................................

United States v. Mattson,

600 F.2d 1295 (9th Cir. 1979) ....................

United States v. Richardson,

418 U.S. 166 (1974) ....................................

United States v. San Jacinto Tin Co.,

125 U.S. 273 (1888) ............................ 3, 8, 9, 19

United States v. Solomon,

563 F.2d 1121 (4th Cir. 1977) ............ 12, 16, 17

United States v. Texas,

143 U.S. 621 (1892) ....................................

United States v. Tingey,

30 U.S. 115 (1831) ...................................... 3, 7

United States v. United Mine Workers of

Am.,

330 U.S. 258 (1947) ....................................

United States v. Wells,

519 U.S. 482 (1997) ....................................

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) ................................

Whole Woman’s Health v. Jackson,

141 S. Ct. 2494 (2021) ................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Statutes and Constitutional Provisions

15 U.S.C. § 1 ..................................................

42 U.S.C. § 3614 ............................................

52 U.S.C. § 10308(d) ......................................

An Act to Enforce the Provisions of the

Fourteenth Amendment to the Constitution of the United States, and for Other

Purposes, ch. 22, 17 Stat. 13 (1871) ..........

An Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870) ...............

An Act to Establish the Judicial Courts of

the United States, ch. 20,

1 Stat. 92 (1789) .........................................

Senate Bill No. 8, 87th Leg.,

Ch. 62 Reg. Sess. (Tex. 2021)................. passim

U.S. Const. art. II, § 3 ............................... 2, 9, 15

U.S. Const. art. VI, cl. 2 ........................... 5, 14, 20

Other Authorities

3 William Blackstone, Commentaries on

the Laws of England (1768) .......................

Br. of CAC as Amicus Curiae in Support of

Pet’rs, Whole Woman’s Health v. Jackson

(No. 21-463) ................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Complaint, June Med. Servs. L.L.C. v.

Kliebert, 158 F. Supp. 3d 473 (M.D. La.

2016) (No. 14-CV-00525) ............................

Cong. Globe, 42d Cong., 1st Sess. App.

(1871) ..........................................................

Meryl Kornfield et al., Texas Created a

Blueprint for Abortion Restrictions. Republican-Controlled States May Follow

Suit, Wash. Post (Sep. 3, 2021) .................

James Madison, Vices of the Political System of the United States (Apr. 1787), in 9

Papers of James Madison (Robert A.

Rutland & William M.E. Rachal eds.,

1975) ...........................................................

Note, Nonstatutory Executive Authority to

Bring Suit,

85 Harv. L. Rev. 1566 (1972) .....................

Note, Protecting the Public Interest: Nonstatutory Suits by the United States,

89 Yale L.J. 118 (1979) ..................... 6, 8, 12, 15

John F. Preis, In Defense of Implied

Injunctive Relief in Constitutional Cases,

22 Wm. & Mary Bill Rts. J. 1 (2013) .........

Norman W. Spaulding, Independence and

Experimentalism in the Department of

Justice,

63 Stan. L. Rev. 409 (2011) ........................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Seth P. Waxman, Twins at Birth: Civil

Rights and the Role of the Solicitor

General,

75 Ind. L.J. 1297 (2000) .............................

Larry W. Yackle, A Worthy Champion for

Fourteenth Amendment Rights: The

United States in Parens Patriae,

92 Nw. U. L. Rev. 111 (1997) .....................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank, public interest law firm, and action center

dedicated to fulfilling the progressive promise of the

Constitution’s text and history. CAC works in our

courts, through our government, and with legal scholars to improve understanding of the Constitution and

to preserve the rights and freedoms it guarantees.

CAC accordingly has a strong interest in the enforcement of the Fourteenth Amendment’s protections and

in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Over the past five decades, this Court has repeatedly recognized that the right to a pre-viability abortion is protected from state infringement by the Fourteenth Amendment. See, e.g., Roe v. Wade, 410 U.S.

113 (1973); Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833 (1992). Yet in a brazen and unprecedented attack on the supremacy of federal law

and the constitutional rights of its people, Texas enacted Senate Bill 8, banning abortion once a “fetal

heartbeat” can be detected—months before a fetus

reaches viability or most people even know that they

are pregnant. See Senate Bill No. 8, 87th Leg., Ch. 62

Reg. Sess. (Tex. 2021) (to be codified at Tex. Health &

Safety Code §§ 171.203(b), 171.204(a)) [hereinafter

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

S.B. 8] (defining “fetal heartbeat” to include embryonic

cardiac activity).

Texas intentionally crafted S.B. 8 to make it as difficult as possible for individuals and abortion providers to sue to protect their rights in court. By delegating enforcement of the law to the populace at large instead of to state authorities, the State sought to prevent private litigants from seeking pre-enforcement

injunctive relief—the standard method for challenging

state laws that deny constitutional rights. Pet. App.

3a.

To date, that tactic has been successful, and providers across Texas, fearing lawsuits seeking to enforce

S.B. 8, have ceased providing virtually all abortion services. Id. at 75a-78a. As a result, Texans seeking to

terminate their pregnancies must undertake oftendaunting trips to neighboring states’ clinics in the

midst of a pandemic, and those clinics have grown so

overwhelmed that they are now struggling to meet demand. Id. at 87a-89a. Texans unable to make the trek

to neighboring states or find a provider in one of those

states face an untenable choice: take matters into their

own hands or carry their unwanted pregnancies to

term. It is under these unique circumstances that the

United States has stepped in to defend its sovereign

interests in maintaining the supremacy of federal law

and the ability of the courts to review harmful and unconstitutional laws like S.B. 8.

It undoubtedly has the power to do so. In a long

line of cases, grounded in principles of sovereignty,

federal supremacy, and the duty of the executive to

“take care that the laws be faithfully executed,” U.S.

Const. art. II, § 3, this Court has repeatedly recognized

the right of the federal government to file suit in federal court to vindicate the public interest even where

Congress has not passed a law explicitly authorizing

the specific type of action pursued.

In the early days of the Republic, in order to give

meaning to the executive’s right to own property and

enter contracts, this Court recognized the implied

right of the United States to sue to vindicate its proprietary interests. See, e.g., Cotton v. United States,

52 U.S. 229, 231 (1850) (implying right to sue for trespass); United States v. Tingey, 30 U.S. 115, 122-23

(1831) (implying right to sue on contract). Shortly after the Civil War and the creation of the federal Department of Justice, the Court extended this doctrine,

holding that the federal government could also sue to

enforce a congressionally enacted scheme in service of

the public interest, even in the absence of a proprietary

interest or a statutory cause of action. See United

States v. San Jacinto Tin Co., 125 U.S. 273 (1888) (implied right to sue from statutory patent scheme);

United States v. Am. Bell Tel. Co., 128 U.S. 315 (1888)

(same).

And just a few years later, this Court unanimously

extended that principle in In re Debs, 158 U.S. 564

(1895), recognizing that just as the government could

sue to effectuate statutory rights, it could also sue to

vindicate constitutional rights in light of its own duty

to protect the public interest. As this Court explained,

“[e]very government, intrusted by the very terms of its

being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to

its own courts for any proper assistance in the exercise

of the one and the discharge of the other.” Id. at 584.

Therefore, the Court went on, the federal government’s “obligations . . . to promote the interest of all

and to prevent the wrongdoing of one, resulting in injury to the general welfare” are often “sufficient to give

it a standing in court.” Id. at 584.

Several courts of appeals have recognized the

“broad” language of the Debs decision, e.g., United

States v. City of Jackson, 318 F.2d 1, 14 (5th Cir. 1963),

yet this Court need not read Debs broadly to resolve

this case. Indeed, under even the narrowest construction of that decision, the United States has a right to

sue Texas because S.B. 8 imposes a substantial burden

on interstate commerce, creates a crisis for the rule of

law and our constitutional structure given the unique

threat it poses to the supremacy of federal law, and has

resulted in a scenario in which it is exceedingly difficult, if not impossible, for private individuals to enforce their own Fourteenth Amendment rights.2 This

Court can thus recognize the right of the federal government to sue under these unique circumstances

without reaching any broader or novel questions about

the scope of federal executive power to seek injunctive

relief.

And significantly, given the unique statutory design of S.B. 8 and its effects on the constitutional right

to abortion, permitting this suit to go forward would

vindicate separation of powers and federalism principles. As for separation of powers, Congress passed 42

2 In fact, the related challenge to S.B. 8 brought by abortion

advocates and providers fits squarely within the confines of this

Court’s Ex parte Young doctrine. See Br. of CAC as Amicus Curiae in Support of Pet’rs, Whole Woman’s Health v. Jackson (No.

21-463). But under Debs, suits by private individuals need not be

unavailable as a matter of law for the government to file suit; rather, this Court in Debs focused on the fact that there were significant barriers for individuals seeking to bring private actions.

Debs, 158 U.S. at 592. And equally significant barriers plainly

exist here: the federal government filed this suit only after the

Fifth Circuit stayed the related providers’ litigation and after this

Court itself refused to step in, citing “complex and novel antecedent procedural questions.” Whole Woman’s Health v. Jackson,

141 S. Ct. 2494, 2495 (2021).

U.S.C. § 1983 to create a new remedy to vindicate the

uniquely federal rights guaranteed by the Constitution against infringement by state officials. Texas has

sought to make an end run around that exercise of congressional authority by crafting S.B. 8 in a manner designed to preclude Section 1983 challenges and make

it impossible to enjoin a law designed to flout well-settled constitutional rights. By stepping in under these

unprecedented circumstances to defend the supremacy

of federal law and the rights of those individuals whom

Congress expected would have their day in court, the

federal government supports—not undermines—the

separation of powers. Indeed, the fact that there is no

explicit cause of action to enforce abortion rights

merely reflects that the efficacy of private enforcement

suits for injunctive relief under Section 1983 meant no

such cause of action was necessary until Texas passed

S.B. 8.

As for federalism, while the Constitution creates a

carefully balanced system of dual sovereignty between

the states and the federal government, it also makes

clear that in cases of conflict between state and federal

law, the Constitution reigns as “the supreme Law of

the Land.” U.S. Const. art. VI, cl. 2. Here, Texas has

flagrantly disregarded that principle, intentionally

crafting a law that deprives Texans of their long-established Fourteenth Amendment rights and seeks to prevent judicial review of those claims. Under such circumstances, permitting the federal government to intervene helps preserve the Constitution’s balance between state and federal power—a balance that Texas

has disrupted by flouting this Court’s precedent.

ARGUMENT

I. Since the Early Days of the Republic, This

Court Has Recognized the Right of the

United States to Sue Even in the Absence of

Statutory Authorization.

This Court has long recognized the right of the

United States to sue in federal court even in the absence of a statute authorizing it do so. As this doctrine

has evolved over the years, two principles have animated its development: the deep-seated rule that “equitable relief . . . is traditionally available to enforce

federal law,” Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320, 329 (2015); see John F. Preis, In Defense

of Implied Injunctive Relief in Constitutional Cases, 22

Wm. & Mary Bill Rts. J. 1, 5 (2013) (“federal courts

having jurisdiction over a dispute have, from the

Founding, enjoyed the power to create injunctive actions without explicit authorization from Congress”),

and the related concept, dating back to English common law, that “where there is a legal right, there is

also a legal remedy,” Marbury v. Madison, 5 U.S. 137,

163 (1803) (quoting 3 William Blackstone, Commentaries on the Laws of England 23 (1768)). In order to

ensure that the United States as a sovereign nation

can fulfill its duty to protect the constitutional rights

of its people, this Court has repeatedly recognized the

United States’ authority to file suit where Congress

has not otherwise barred such an action.

In the early days of the Republic, “[l]acking a guiding body of statutes, the judiciary faced the task of defining the rights of the United States, as a sovereign

and representative entity, in a system of law that

made few explicit provisions for government interests

and actions.” Note, Protecting the Public Interest: Nonstatutory Suits by the United States, 89 Yale L.J. 118,

120 (1979) [hereinafter Protecting the Public Interest].

Early statutes did not explicitly authorize the United

States’ right to sue in tort or contract, yet this Court

recognized the incongruity of recognizing the right to

own property or to enter into a contract without permitting enforcement of those rights in a court of law.

See United States v. Gear, 44 U.S. 120, 128 (1845) (permitting United States to maintain action of trespass);

Dugan v. United States, 16 U.S. 172, 181 (1818) (“In

all cases of contract with the United States, they must

have a right to enforce the performance of such contract, or to recover damages for their violation, by actions in their own name.”); Tingey, 30 U.S. at 122 (“If

the United States are competent to become parties to

such a bond without legislative requisitions, it is

equally true that the right to direct or require such a

bond belongs to the executive.”).

In these early cases, this Court relied primarily on

analogies between the United States and a private

plaintiff seeking to vindicate a proprietary interest in

court. See, e.g., Cotton, 52 U.S. at 231 (“As an owner

of property in almost every State of the Union, [the

United States] have the same right to have it protected

by the local laws that other persons have.”); Dugan, 16

U.S. at 181 (recognizing the right of the United States

to sue on a bill of exchange because “[i]t would be

strange to deny to them a right which is secured to

every citizen of the United States”). But in the wake

of the Civil War and the creation of the federal Department of Justice, see An Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870), empowering the Attorney General for the first time to litigate

cases in any federal court to protect the interests of the

United States, see id. § 5 (codified at 28 U.S.C.

§ 518(b)),3 this Court promptly recognized the flaws in

3 Prior to the creation of the Department of Justice, the first

Judiciary Act had granted the Attorney General such authority

such analogy—that, in fact, the federal government’s

right to bring lawsuits not expressly authorized by

statute was broader than that of private parties, in

light of its sovereign duty to protect its citizens and the

public interest, see Protecting the Public Interest, supra, at 121-22; United States v. City of Philadelphia,

644 F.2d 187, 215 (3d Cir. 1980) (Gibbons, J., dissenting from denial of rehearing) (“The analogy to private

litigants is in fact imperfect, for as the Court recognized, . . . the Executive has a duty to the public, which

no private litigant suing to enforce his property interests has.”).

The first cases to recognize this broader non-statutory right to sue were United States v. San Jacinto Tin

and United States v. American Bell Telephone. In San

Jacinto, the Attorney General filed suit to revoke a

fraudulently obtained land patent covering a tract of

land in the possession of the respondents. 125 U.S. at

274. The United States did not allege a pecuniary loss

as a result of the fraud, and the respondents claimed

that the government was a placeholder for the real

party in interest, a private claimant to the land. Id. at

286; see Protecting the Public Interest, supra, at 121

n.13. In upholding the right of the United States to

sue even in the absence of an authorizing statute, this

Court initially focused on the government’s asserted

proprietary interest in the action because revocation of

only for suits before this Court. See An Act to Establish the Judicial Courts of the United States, ch. 20 § 35, 1 Stat. 92 (1789).

Several scholars have argued that the Department of Justice was

created specifically to assist in enforcement of the Reconstruction

Amendments and the rights of formerly enslaved people and their

allies. See, e.g., Norman W. Spaulding, Independence and Experimentalism in the Department of Justice, 63 Stan. L. Rev. 409, 438

(2011); Seth P. Waxman, Twins at Birth: Civil Rights and the Role

of the Solicitor General, 75 Ind. L.J. 1297, 1300-01 (2000).

the patent would have resulted in reversion of the land

to the federal government. San Jacinto, 125 U.S. at

286. But this Court also acknowledged a presumption

in favor of executive authority to sue in the absence of

a congressional prohibition, see id. at 284 (“if restrictions are to be placed upon the exercise of this authority by the attorney general, it is for the legislative

body which created the office to enact them”), and

noted that the United States might claim standing to

sue to enforce an “obligation to the general public,” id

at 286.

This Court seized on that reasoning several months

later in American Bell, explicitly upholding the right

of the United States to sue to effectuate a congressionally established scheme, even in the absence of a statutory cause of action. 128 U.S. at 367-68. Like San

Jacinto, American Bell involved a fraudulently obtained patent (in American Bell, an inventor’s patent),

but this time, the United States could claim neither a

pecuniary loss nor a proprietary interest in the subject

of the patent. See id. at 350-51, 366-68. Even so, this

Court upheld the right of the United States to sue. Rejecting the respondent’s argument “that the government of the United States—the representative of

60,000,000 people, acting for them, on their behalf and

under their authority—can have no remedy against a

fraud which affects them all, and whose influence may

be unlimited,” id. at 357, this Court held that “the

right of the United States to interfere in the present

case is its obligation to protect the public from the monopoly of the patent which was procured by fraud,” id.

at 367—i.e., to “take care that the laws [including the

patent laws] be faithfully executed,” U.S. Const. art.

II, § 3.

On the heels of San Jacinto and American Bell

came the Debs decision, “the cornerstone for modern

judicial recognition of nonstatutory executive power to

bring suit.” Note, Nonstatutory Executive Authority to

Bring Suit, 85 Harv. L. Rev. 1566, 1568 (1972). Debs

arose out of the Pullman rail strike of 1894 and an injunction obtained by the Attorney General against the

strike’s leaders. Debs, 158 U.S. at 565-67. When those

leaders were held in contempt for violating the injunction and detained, they sought a writ of habeas corpus

on the ground that the federal government lacked the

authority to seek the injunction in the first place. Id.

at 570-73.

This Court disagreed. In explaining its decision,

this Court acknowledged that there were multiple possible grounds on which it could rule, some narrower

than others. For example, it could have rested its holding on the United States’ proprietary interest in ending the strike, as the strike had disrupted the federal

postal system. See id. at 583-84 (recognizing that “the

United States have a property in the mails, the protection of which was one of the purposes of this bill,” but

that “[w]e do not care to place our decision upon this

ground alone”). It also could have recognized a right

to sue to effectuate the guarantees of the Sherman

Anti-Trust Act, see id. at 600, which barred “[e]very . . .

conspiracy, in restraint of trade or commerce among

the several states,” 15 U.S.C. § 1. Indeed, the lower

court had relied on that ground in recognizing the government’s right to sue. See United States v. Debs, 64

F. 724, 745-55 (7th Cir. 1894).

But this Court unanimously chose to go further.

Citing San Jacinto and American Bell, the Court found

it “obvious from these decisions” that “while it is not

the province of the government to interfere in any

mere matter of private controversy between individuals, or to use its great powers to enforce the rights of

one against another,” the United States could sue in

cases that “affect the public at large, and are in respect

of matters which by the constitution are intrusted to

the care of the nation, and concerning which the nation

owes the duty to all the citizens of securing to them

their common rights.” Debs, 158 U.S. at 586. As this

Court explained, the courts should not “prevent [the

United States] from taking measures therein to fully

discharge those constitutional duties.” Id.

Alongside this sweeping language, this Court in

Debs also emphasized three special aspects of the Pullman strike that made suit by the United States both

appropriate and indispensable. First, the Court discussed the government’s special duties with respect to

enforcement of the Commerce Clause, the specific constitutional provision violated by the strike. See Debs,

158 U.S. at 586 (“The national government, given by

the constitution power to regulate interstate commerce,” has “the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers and duties

of a government to remove obstructions from the highways under its control.”). Second, the Court emphasized the disastrous and immediate effects of the

strike, requiring emergency intervention by the federal government. See id. at 592 (“If ever there was a

special exigency, one which demanded that the courts

should do all that courts can do, it was disclosed by this

bill.”). Third, the Court adopted the government’s

characterization of the strike as a “public nuisance.”

Id. at 591-94. Specifically, it found that the strike “affect[ed] the people at large” in the exercise of common

rights, id. at 593, meaning no individual might have

standing in his or her own right to challenge it, see,

e.g., United States v. Richardson, 418 U.S. 166, 171,

176-77 (1974) (dismissing suit that rested on an impermissible “generalized grievance”), and the Attorney

General thus had a special duty to step in on behalf of

the public, see Debs, 158 U.S. at 587; accord Protecting

the Public Interest, supra, at 123 & n.31. The Attorney

General having done so, this Court also recognized its

own duty to craft an equitable remedy to serve the public interest. See Debs, 158 U.S. at 589 (where there is

“an indictable nuisance, there must be a remedy . . . ,

and that remedy is by injunction” (internal quotation

marks omitted)).

II. This Court Can Recognize the United States’

Right to Sue in This Case Without Adopting

a Broad or Novel Reading of Debs.

While some lower courts have read Debs as authorizing suit by the federal government whenever a state

or private party takes an action that is contrary to the

Constitution and detrimental to the public interest,

e.g., United States v. Brand Jewelers, Inc., 318 F.

Supp. 1293 (S.D.N.Y. 1970), others have read the decision as limited to cases presenting at least one (or in

some cases, all) of the special circumstances of the

Pullman strike, e.g., United States v. Solomon, 563

F.2d 1121, 1129 (4th Cir. 1977).

Debates about the scope of Debs, however, need not

be resolved in this case. Just as in Debs, the federal

government here has demonstrated that S.B. 8 substantially burdens interstate commerce, creates a crisis for the rule of law requiring immediate intervention, and has made it exceedingly difficult for individual Texans harmed by S.B. 8 to vindicate their own

rights in court. Because all three special circumstances of Debs are satisfied, this case fits squarely

within the confines of existing precedent.

The interstate commerce effects of S.B. 8 are welldocumented by the government in a series of declarations from providers that the district court cited. See

Pet. App. 36a-37a, 48a. As those declarations describe,

Texas residents are flooding clinics in neighboring

states because of S.B. 8’s restrictions—indeed, at one

clinic in Oklahoma City, two-thirds of patient calls are

now coming from Texas. Id. at 91a. Clinics in neighboring states like Oklahoma and Kansas are so overwhelmed that they are scheduling abortions weeks

out—a threat to the abortion rights of even non-Texans, given the time-sensitivity of an abortion procedure. See id. at 94a & n.79 (describing how delaying

abortion increases the risk of medical complications

and that individuals will reach the legal gestational

limit in those states before they can obtain an abortion). Thus, S.B. 8 is directly causing Texas residents

to cross state lines to seek medical services, and in

turn, making it more difficult for people in neighboring

states to obtain abortions and other forms of reproductive healthcare.

Moreover, S.B. 8 purports to authorize lawsuits by

people anywhere in the United States against individuals or entities located anywhere in the United States

who aid or abet, or intend to aid or abet, the provision

of a banned abortion in Texas. See Tex. Health &

Safety Code § 171.208(a). For example, a person from

California who learns that a friend obtained an unlawful abortion in Texas and that the friend’s mother from

Oklahoma drove her to the clinic could sue the Oklahoma mother for monetary damages in Texas court.

The California resident might also sue the out-of-state

insurance company that covered the abortion or the

out-of-state pharmaceutical company that manufactured the drug used to induce the abortion. See Pet.

App. 36a-37a. In short, the interstate commerce effects of S.B. 8 are concrete and significant.

As for the emergency nature of the situation, S.B. 8

poses at least as urgent a crisis for the United State

and the rule of law as the Pullman strike did in Debs.

As in Debs, the impact of S.B. 8 has been immediate

and devastating, forcing people to take drastic

measures. Some Texans are driving thousands of

miles to neighboring states to seek abortions. See, e.g.,

id. at 94a n.78 (quoting a declaration from an Oklahoma provider describing treating a patient “who got

in her car at midnight in Texas so she could drive

through the night and make it to Oklahoma in the

morning for her abortion appointment, and then she

had to turn around the same day to travel back to

Texas”). Others are frantically trying to scrape together the funds for such a trip without their abusive

partners finding out. See, e.g., id. at 95a (quoting a

provider describing a Texas woman with an abusive

husband who was “selling personal items” to afford to

leave Texas “discreetly” for an abortion). Where the

right to abortion “is either threatened or in fact being

impaired,” Elrod v. Burns, 427 U.S. 347, 373 (1976),

there is plainly irreparable injury. Here the impairment of the right to abortion is obvious.

While the facts on the ground are enough to create

an emergency under Debs, the unprecedented and lawless nature of Texas’s crafting and enactment of S.B. 8

also creates a second urgency requiring intervention of

the federal government and equitable relief. Here,

Texas has avowedly and unapologetically disregarded

binding Supreme Court precedent recognizing the constitutional right to a pre-viability abortion, see Roe,

410 U.S. 113; Casey, 505 U.S. 833. In so doing, the

State has not only violated the Fourteenth Amendment, but it also has violated the most basic tenet of

the Supremacy Clause: that the federal Constitution is

“the supreme Law of the Land.” U.S. Const. art. VI, cl.

2; see Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he

federal judiciary is supreme in the exposition of the

law of the Constitution, and . . . [i]t follows that the interpretation of the Fourteenth Amendment enunciated by this Court . . . is the supreme law of the land.”).

Texas’s open defiance of federal law and its effort to

subvert judicial review threatens this fundamental

precept at the heart of our constitutional system and

serves as a blueprint for other states to undermine

constitutional rights and avoid accountability. If multiple states were to defy federal law in this manner—

as some are already threatening, see Meryl Kornfield

et al., Texas Created a Blueprint for Abortion Restrictions. Republican-Controlled States May Follow

Suit, Wash. Post (Sep. 3, 2021), https://www.washingtonpost.com/nation/2021/09/03/texas-abortion-banstates/—and get away with it, our executive’s ability to

“take care that the laws be faithfully executed,” U.S.

Const. art. II, § 3, would be rendered a hollow promise.

Finally, as in Debs, S.B. 8 presents a scenario

where individuals face significant barriers to their own

suits for equitable relief. In Debs, the public nature of

the strike and the fact that no private individual suffered a “special injury resulting therefrom” meant the

federal government was uniquely positioned to move

to enjoin it. 158 U.S. at 593; see Protecting the Public

Interest, supra, at 123 n.31 (calling the public-nuisance

mode of analysis in Debs “significant” because “[i]n traditional cases of public nuisance, . . . no one citizen

may suffer an injury distinguishable from those suffered by all others”). Here, Texas has capitalized on

the interplay of the doctrines of standing and sovereign immunity to craft a statute with a private enforcement scheme that, it has argued, renders Section 1983

lawsuits improper and the exception to Eleventh

Amendment sovereign immunity under Ex parte

Young, 209 U.S. 123 (1908), unavailable. In light of

that enforcement scheme, and the fact that the

Eleventh Amendment does not bar a suit by the

United States against a state, see United States v.

Texas, 143 U.S. 621, 642-46 (1892), the United States

is uniquely positioned to vindicate the rights of its people.

III. The Rationales Counseling Against

Recognizing a Public Right of Action Do Not

Apply Here.

Since Debs was decided, this Court has repeatedly

recognized the right of the United States to sue in the

absence of explicit statutory authorization. See, e.g.,

Arizona v. United States, 567 U.S. 387 (2012); Sanitary

Dist. of Chi. v. United States, 266 U.S. 405 (1925);

Heckman v. United States, 224 U.S. 413 (1912). Still,

in a handful of cases in which the United States has

sought to enforce its citizens’ constitutional rights,

lower federal courts have declined to imply a cause of

action, reasoning that under the specific facts

presented, recognizing a non-statutory cause of action

would raise separation of powers and federalism

concerns. See, e.g., Solomon, 563 F.2d at 1128-29

(refusing to grant government right to sue to enforce

rights of institutionalized persons); United States v.

Mattson, 600 F.2d 1295, 1297 (9th Cir. 1979) (noting

“substantial agreement” with Solomon in a factually

similar case); City of Philadelphia, 644 F.2d at 201

(refusing to grant government right to sue in police

reform case). But see City of Philadelphia, 644 F.2d at

207 (Gibbons, J., joined by Seitz, C.J., A.L.

Higgenbotham and Sloviter, JJ., dissenting from

denial of rehearing).

However valid those concerns were under the

particular circumstances of the cases in which they

were raised, they are not implicated here.

described below, this Court can recognize the United

States’ right to sue without treading on congressional

authority or traditional state powers. Indeed, allowing

the United States to sue here would vindicate, rather

than undermine, our constitutional system’s interest

in separation of powers and federalism.

A. This Case Does Not Raise Separation of

Powers Concerns.

Because the Constitution delegates the lawmaking

power to Congress, some lower courts have expressed

hesitancy about extending a cause of action to the executive branch where Congress has not done so itself.

See, e.g., Solomon, 563 F.2d at 1128-29; City of Philadelphia, 644 F.2d at 199-201. In this case, however, it

is Texas, not the federal courts or the executive

branch, that has usurped Congress’s power by crafting

a statute that attempts to prevent individuals from

vindicating their constitutional rights pursuant to the

express cause of action in Section 1983.

Congress enacted Section 1983 in the wake of a

bloody Civil War to “throw[] open the doors of the

United States courts to those whose rights under the

Constitution are denied or impaired.” Cong. Globe,

42d Cong., 1st Sess. App. 376 (1871) (Rep. Lowe); see

An Act to Enforce the Provisions of the Fourteenth

Amendment to the Constitution of the United States,

and for Other Purposes, ch. 22, § 1, 17 Stat. 13 (1871)

(codified at 42 U.S.C. § 1983) (authorizing “an action

at law, suit in equity, or other proper proceeding for

redress” against “every person” acting under color of

state law who causes the “deprivation of any rights,

privileges, or immunities secured by the Constitution”). Yet as described above, Texas specifically designed S.B. 8 to evade judicial review pursuant to Section 1983, attempting to render that statute a dead letter in the abortion context. Cf. City of Philadelphia,

644 F.2d at 192 (declining to recognize public right of

action for unconstitutional police conduct because

“[p]ersons denied constitutional rights may sue state

officials for damages or injunctive relief under [Section] 1983”). In so doing, Texas has robbed federal

courts of their “paramount role in protecting constitutional rights,” Patsy v. Bd. of Regents of State of Fla.,

457 U.S. 496, 503 (1982), and frustrated the text, history, and purpose of a duly enacted law. By stepping

in with this lawsuit, the executive branch here attempts to vindicate Section 1983’s promise of access to

the courts.

The fact that Congress has enacted causes of action

for the federal government to vindicate the public interest in other areas of law where Congress expected

the Attorney General to litigate regularly does not

change that calculus. See, e.g., 52 U.S.C. § 10308(d)

(voting); 42 U.S.C. § 3614 (housing). For the past fifty

years, from the foundational case of Roe v. Wade to last

year’s decision in June Medical Services L.L.C. v.

Russo, 140 S. Ct. 2103 (2020), Section 1983 has been

the chief vehicle through which individuals and abortion providers have sought injunctive relief to prevent

enforcement of state laws that infringe on their constitutional rights, including the fundamental right to a

pre-viability abortion. See Roe v. Wade, 314 F. Supp.

1217, 1219 n.1 (N.D. Tex. 1970) (specifying Section

1983 as the cause of action); Complaint at 2, June Med.

Servs. L.L.C. v. Kliebert, 158 F. Supp. 3d 473 (M.D. La.

2016) (No. 14-CV-00525) (same). Thus, Congress has

never encountered the need to create a cause of action

for the federal government to challenge restrictive

abortion laws. It is only under the unprecedented circumstances of this case—where Texas has attempted

to insulate S.B. 8 from pre-enforcement judicial review

in suits brought by private parties—that the federal

executive has needed to step in, relying on its power to

do so pursuant to Debs and the constitutional precepts

that Debs rests upon.

Nor is it relevant that the Reconstruction-era Congresses, which “gave extensive consideration to the

creation of remedies to enforce the [Thirteenth, Fourteenth, and Fifteenth] amendments,” City of Philadelphia, 644 F.2d at 194, never created a cause of action

for executive enforcement of those amendments. First,

as described above, supra Section II, this Court could

recognize the government’s right to sue here based on

S.B. 8’s burden on interstate commerce without deciding whether a broader implied cause of action exists

for the Attorney General to enforce the Fourteenth

Amendment. Indeed, although the effect of an injunction against S.B. 8 would be to vindicate Texans’ Fourteenth Amendment right to abortion, the ground for

the United States’ authority to sue lies in its right to

enforce its own sovereign interests in maintaining the

supremacy of federal law and the right to judicial review.

Second, as this Court made clear in San Jacinto, “if

restrictions are to be placed upon the exercise of this

authority by the attorney general, it is for the legislative body which created the office to enact them.” 125

U.S. at 284; see Larry W. Yackle, A Worthy Champion

for Fourteenth Amendment Rights: The United States

in Parens Patriae, 92 Nw. U. L. Rev. 111, 129-34

(1997) (collecting authorities suggesting that a clear

congressional statement is required to displace, rather

than to create, the United States’ right to sue to enforce its citizens’ constitutional rights); cf. United

States v. United Mine Workers of Am., 330 U.S. 258,

272 (1947) (“There is an old and well-known rule that

statutes which in general terms divest pre-existing

rights or privileges will not be applied to the sovereign

without express words to that effect.”).

And third, even in the absence of any presumption

in favor of a cause of action or clear statement rule,

“[i]t is at best treacherous” to infer meaning from “congressional silence alone.” NLRB v. Plasterers’ Local

Union No. 79, 404 U.S. 116, 129-130 (1971) (quoting

Girouard v. United States, 328 U.S. 61, 69 (1946)). Indeed, “even if silence could speak, it could not speak

unequivocally to the issue here,” United States v.

Wells, 519 U.S. 482, 496 (1997), so this Court should

honor its longstanding precedents that permit the executive to sue Texas under the unprecedented circumstances of this case.

B. This Case Does Not Raise Federalism

Concerns.

Under the Supremacy Clause, the Constitution

reigns as “the supreme Law of the Land.” U.S. Const.

art. VI, cl. 2; see McCulloch v. Maryland, 17 U.S. 316,

326-27 (1819). The Framers intended the Supremacy

Clause to serve an important function in establishing

the relationship between the federal government and

the individual states in our Constitution’s federalist

system. As James Madison noted, because the Articles

of Confederation lacked a federal supremacy rule,

“‘[w]henever a law of a State happened to be repugnant

to an act of Congress,’ it ‘will be at least questionable’

which law should take priority, ‘particularly when the

latter is of posterior date to the former.’” James Madison, Vices of the Political System of the United States

(Apr. 1787), in 9 Papers of James Madison 345, 352

(Robert A. Rutland & William M.E. Rachal eds., 1975).

The Constitution corrected this deficiency.

Here, Texas has flagrantly disregarded these principles of federal supremacy, intentionally crafting a

state law that deprives Texans of their long-established Fourteenth Amendment rights and is designed

to evade traditional forms of judicial review. Indeed,

S.B. 8 admits its defiance of federal law on its face.

Section 2 of the law acknowledges this Court’s ruling

in Roe v. Wade, yet notes that “the state of Texas never

repealed, either expressly or by implication, the state

statutes enacted before [that decision] that prohibit

and criminalize abortion unless the mother’s life is in

danger.” S.B. 8 § 2. It then articulates its substantive

provisions banning abortion after embryonic cardiac

activity, in furtherance of those earlier state laws that

Roe v. Wade indisputably overruled.

Despite the mandates of the Supremacy Clause,

the Constitution does reserve a vital role for states in

our government’s structure, charging them with ensuring the health and wellbeing of their citizens in exercise of their historic police powers. For this reason,

this Court has long “recognize[d] that the ‘State has a

legitimate interest in seeing to it that abortion, like

any other medical procedure, is performed under circumstances that insure maximum safety for the patient,’” Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292, 2309 (2016) (quoting Roe, 410 U.S. at 150), provided that state abortion regulations, when thoroughly

scrutinized, do not have the “purpose or effect of presenting a substantial obstacle to a woman seeking an

abortion,” id. (quoting Casey, 505 U.S. at 878).

No such scrutiny, however, is required here. Texas

has asserted no historic state interest in regulating the

health of its citizens to defend its enactment of S.B. 8.

Nor could it: S.B. 8 does not merely regulate abortion;

rather, it is an outright ban on most constitutionally

protected abortions with no health and safety justification whatsoever, infringing on a long-established

federal right. Under such circumstances, permitting

the federal government to intervene in defense of that

right and the supremacy of federal law helps preserve

the Constitution’s delicate balance between state and

federal power.

CONCLUSION

For the foregoing reasons, this Court should grant

Petitioner’s requested relief.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 27, 2021

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.