Reply Brief — United States, Petitioner v. Texas, et al.

No. 21-588

In the Supreme Court of the United States

_____________

UNITED STATES, PETITIONER

v.

TEXAS, ET AL.,

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

REPLY BRIEF FOR

INTERVENOR-RESPONDENTS

_____________

HEATHER GEBELIN HACKER

Hacker Stephens LLP

108 Wild Basin Road South

Suite 250

Austin, Texas 78746

(512) 399-3022

heather@hackerstephens.com

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue, Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

GENE P. HAMILTON

Vice President &

General Counsel

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

D. BRYAN HUGHES

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702-7221

(903) 581-1776

bryan@hughesfirm.com

Counsel for IntervenorRespondents

TABLE OF CONTENTS

Table of contents .................................................................... i

Table of authorities ............................................................... ii

I. The United States lacks authority to bring

this suit in equity against Texas .............................. 2

A. Texas cannot be sued for allowing its

courts to hear claims brought by private

litigants ................................................................ 2

B. The United States has no cause of action

to sue texas over SB 8 ........................................ 4

C. The United States’ attempt to derive a

cause of action from equity is foreclosed

by Grupo Mexicano ........................................... 8

Conclusion ............................................................................ 12

(i)

TABLE OF AUTHORITIES

Cases

Alexander v. Sandoval, 532 U.S. 275 (2001) ...................... 4

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421

U.S. 240 (1975)................................................................... 3

Arizona v. United States, 567 U.S. 387 (2012) .................. 4

Cotton v. United States, 52 U.S. (11 How.) 229

(1851) .................................................................................. 5

DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189 (1989) ............................................... 3

Estelle v. Justice, 426 U.S. 925 (1976) ................................ 7

Grupo Mexicano de Desarrollo S.A. v. Alliance

Bond Fund, Inc., 527 U.S. 308 (1999) ........................ 8, 9

Hollingsworth v. Perry, 570 U.S. 693 (2013) ..................... 3

Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir. 2001)

(en banc) ............................................................................. 2

In re Debs, 158 U.S. 564 (1895) ........................................... 4

King Street Patriots v. Tex. Democratic Party, 521

S.W.3d 729 (Tex. 2017) ...................................................... 4

Monroe v. Pape, 365 U.S. 167 (1961) .................................. 3

Muskrat v. United States, 219 U.S. 346 (1911) ................. 2

New York Times Co. v. United States, 403 U.S. 713

(1971) .............................................................................. 1, 2

United States v. City of Philadelphia, 644 F.2d 187

(3d Cir. 1980) ...................................................................... 7

United States v. Mattson, 600 F.2d 1295 (9th Cir.

1979).................................................................................... 7

United States v. San Jacinto Tin Co., 125 U.S. 273

(1888) .................................................................................. 5

(ii)

United States v. Solomon, 563 F.2d 1121 (4th Cir.

1977)................................................................................ 5, 7

Whole Woman’s Health v. Jackson, 141 S. Ct. 2494

(2021) .................................................................................. 2

Wyandotte Transp. Co. v. United States, 389 U.S.

191 (1967) ........................................................................... 5

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) ........................................................................... 2

Statutes

18 U.S.C. § 241 ...................................................................... 7

18 U.S.C. § 242 ...................................................................... 7

42 U.S.C. § 1983 .............................................................. 6, 11

42 U.S.C. §2000b(a) ............................................................... 7

42 U.S.C. §2000c-6(a) ............................................................ 7

Tex. Health & Safety Code § 171.207(a) ............................ 3

Tex. Hum. Res. Code § 36.101(a) ........................................ 3

Other Authorities

Jack M. Balkin, Abortion and Original Meaning,

24 Const. Comment. 291 (2007) ..................................... 10

Paul M. Bator et al., Hart and Wechsler’s The

Federal Courts and The Federal System (2d ed.

1973).................................................................................... 7

Richard H. Fallon, Jr. et al., Hart and Wechsler’s

The Federal Courts and The Federal System

(7th ed. 2015) ..................................................................... 6

Henry M. Hart, Jr. & Albert M. Sacks, The Legal

Process 137 (William N. Eskridge, Jr. & Philip P.

Frickey eds., 1994) ............................................................ 4

(iii)

Henry M. Hart, Jr. & Herbert Wechsler, The

Federal Courts and The Federal System 1114–20

(1953) .................................................................................. 5

Henry P. Monaghan, The Protective Power of the

Presidency, 93 Colum. L. Rev. 1, 61 (1993); Note,

Nonstatutory Executive Authority to Bring

Suit, 85 Harv. L. Rev. 1566 (1972)................................... 5

William F. Young, Jr., Book Review, 32 Tex. L. Rev.

483 (1954) ........................................................................... 7

(iv)

In the Supreme Court of the United States

_____________

No. 21-588

UNITED STATES, PETITIONER

v.

TEXAS, ET AL.,

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

REPLY BRIEF FOR

INTERVENOR-RESPONDENTS

_____________

In another case featuring tight briefing deadlines,

this Court famously declined the United States’ truly urgent request to enjoin publication of the Pentagon Papers. See New York Times Co. v. United States, 403 U.S.

713 (1971) (per curiam). There, as here, the Attorney

General could point to no Act of Congress that authorized him to bring his suit in equity — a fact that was not

lost on the Justices. See, e.g., id. at 718 (Black, J., concurring); id. at 720–22 (Douglas, J., concurring); id. at

730 (Stewart, J., concurring); id. at 740 (White, J., concurring).

Justice Harlan complained that more time should

have been taken to consider, among other questions,

“[w]hether the Attorney General is authorized to bring

(1)

2

these suits in the name of the United States.” Id. at 753–

54 (Harlan, J., dissenting) (citing In re Debs, 158 U.S.

564 (1895), and Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)). But Justice Marshall had already

answered that separation-of-powers question for himself:

“It is not for this Court to fling itself into every breach

perceived by some Government official nor is it for this

Court to take on itself the burden of enacting law, especially a law that Congress has refused to pass.” Id. at 747

(Marshall, J., concurring). A half-century later, the Court

should heed his words in this case.

I.

THE UNITED STATES LACKS AUTHORITY TO

BRING THIS SUIT IN EQUITY AGAINST TEXAS

A. Texas Cannot Be Sued For Allowing Its Courts To

Hear Claims Brought By Private Litigants

The United States does not even try to dispute that

“federal courts enjoy the power to enjoin individuals

tasked with enforcing laws, not the laws themselves.”

Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021)

(citing California v. Texas, 141 S. Ct. 2104, 2115–16

(2021)). And its justiciability troubles cannot be solved by

naming the State of Texas as the defendant. Under

Muskrat v. United States, 219 U.S. 346 (1911), a sovereign government cannot properly be sued over a law that

regulates relationships between private parties without

any enforcement on the government’s part. See also

Hope Clinic v. Ryan, 249 F.3d 603, 605 (7th Cir. 2001) (en

banc) (per curiam).

Grasping for a distinction, the United States argues

that the law in Muskrat “merely allocate[d] private

rights,” U.S. Br. 25, whereas SB 8 supposedly creates an

3

enforcement interest and “delegate[s]” it from Texas to

private parties, U.S. Br. 13. The statute does no such

thing. SB 8 plaintiffs are not agents under the State’s

control. See Hollingsworth v. Perry, 570 U.S. 693, 710,

713 (2013). Nor are they qui tam relators who have been

assigned the State’s own pecuniary interest. Cf. Tex.

Hum. Res. Code § 36.101(a) (“A person may bring a civil

action for [Medicaid fraud] in the name of the person and

of the state.”).

SB 8 plaintiffs exercise private rights, not public

powers. Specifically, SB 8 confers on each person an interest in a private tort action that presumes emotional

distress over the killing of an unborn child. See Tex.

Health & Safety Code § 171.207(a) (referring to these

“private civil actions” (emphasis added)). This innovation

by the Texas Legislature simply exercises “the freedom

of the States to fashion their own laws of torts in their

own way.” Monroe v. Pape, 365 U.S. 167, 245 (1961)

(Frankfurter, J., dissenting); see also DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 203

(1989) (“The people of Wisconsin may . . . chang[e] the

tort law of the State in accordance with the regular lawmaking process.”).

It is no answer to say that SB 8 reflects “Texas’s preferred public policy.” U.S. Br. 25. Of course it does — was

the Acting Solicitor General expecting to get Delaware’s

public policy out of the Texas Legislature? Any piece of

legislation that survives bicameralism and presentment

should reflect public policy of some sort, even if it deals

purely in private rights. See, e.g., Alyeska Pipeline Serv.

Co. v. Wilderness Soc’y, 421 U.S. 240, 263 (1975) (noting

4

instances where “Congress has opted to rely heavily on

private enforcement to implement public policy”); King

Street Patriots v. Tex. Democratic Party, 521 S.W.3d 729,

732 (Tex. 2017) (noting “the Legislature’s public policy

choice to authorize a private right of action”). Smuggling

in the word public like this does not fix the United

States’ Muskrat problem.

B. The United States Has No Cause Of Action To Sue

Texas Over SB 8

Unlike in Arizona v. United States, 567 U.S. 387

(2012), Texas did not neglect to demand that the United

States show some cause of action. See U.S. Br. 15–16

(conceding lack of a holding on this point in Arizona).

And without a cause of action, the United States cannot

invoke federal judicial authority to pursue the extravagant remedies it desires. Cf. Henry M. Hart, Jr. & Albert

M. Sacks, The Legal Process 137 (William N. Eskridge,

Jr. & Philip P. Frickey eds., 1994) (“A right of action is a

species of power — of remedial power.”).

Instead of looking to Congress for a cause of action,

however, the United States is hoping this Court will just

make one up as a matter of equity. But see Alexander v.

Sandoval, 532 U.S. 275, 286–87 (2001). Why bother with

section 5 of the Fourteenth Amendment, when there

might be one last drink left inside of In re Debs, 158 U.S.

564 (1895)?

The United States urges the Court to do Congress’s

job on the strength of Debs, which it describes as “canonical.” U.S. Br. 14. But that opinion has been more aptly

called “perplexing,” “unclear,” “difficult to fathom,” and

“remarkably lacking in specificity.” United States v. Sol-

5

omon, 563 F.2d 1121, 1127 (4th Cir. 1977); Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 61 (1993); Note, Nonstatutory Executive

Authority to Bring Suit, 85 Harv. L. Rev. 1566, 1569 &

n.23 (1972). Hence the United States’ vague assertion

that “Debs endorsed and embodied the ‘general rule that

the United States may sue to protect its interests.’ ” U.S.

Br. 15 (quoting Wyandotte Transp. Co. v. United States,

389 U.S. 191, 201 (1967)).1

In proffering the interest that allows for a suit in equity, the United States disclaims, as it must, a broad “authority to sue merely because a State has violated its citizens’ constitutional rights.” U.S. Br. 10. But its attempt

at a limiting principle is a head-scratcher: The United

States can sue, we’re told, over “a manifest sovereign interest in protecting the supremacy of the Constitution

and preventing a State from nullifying this Court’s precedents by thwarting judicial review under Section 1983

1.

The Wyandotte Court did not actually cite Debs for the quoted

proposition, opting instead for cases that betray Debs’s outlier

status. 389 U.S. at 196 n.5, 201 (giving Debs a pair of “cf.” cites);

see, e.g., Cotton v. United States, 52 U.S. (11 How.) 229 (1851)

(allowing suit in equity against loggers trespassing on federal

land); United States v. San Jacinto Tin Co., 125 U.S. 273 (1888)

(allowing suit in equity to annul fraudulent federal-land patent);

Henry M. Hart, Jr. & Herbert Wechsler, The Federal Courts

and The Federal System 1114–20 (1953) (recounting the early

line of cases).

6

and Ex parte Young.” U.S. Br. 10; see also id. at 16. For

several reasons, that cannot be right.2

First, words like nullification and thwart falsely

suggest that an SB 8 defendant will never get into a federal court. E.g., U.S. Br. III, 2–3, 10, 12–14, 16–20, 22, 24,

30, 33, 36, 39, 41–42, 45–46; see also id. at 12 (fretting

that “no decision of this Court is safe”). Of course, Texas

courts’ “[f]inal judgments or decrees” will be subject to

certiorari review in this Court, 28 U.S.C. § 1257(a), so

the United States’ scare tactics are over a century out of

date. See Richard H. Fallon, Jr. et al., Hart and

Wechsler’s The Federal Courts and The Federal System

474 (7th ed. 2015) (recounting other States’ resistance to

Section 25 of the Judiciary Act of 1789). In the meantime, Texas’s judges swear the same “Oath . . . to support

this Constitution” as federal judges, and are bound by

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

SB 8 is “plainly” unconstitutional under this Court’s

precedent, U.S. Br. 17, then it is “particular[ly] insult[ing] to the state courts to suggest that they will be

unable to detect patent unconstitutionality in state statutes.” Fallon, supra, at 1142.

Second, any perceived gaps in Section 1983 are for

Congress to fill, not the Court. Congress has enacted a

broad array of procedural mechanisms to protect constitutional rights in the federal courts, some of which empower the Attorney General. See, e.g., 42 U.S.C. §§ 1983,

2.

And even if it were, the necessary implication would be that the

United States cannot win unless the petitioners lose in Whole

Woman’s Health v. Jackson, No. 21-463 (U.S.).

7

2000b(a), 2000c-6(a); 18 U.S.C. §§ 241, 242. If he needs an

even broader array due to SB 8, then he should write to

Congress in accordance with Section 5 of the Fourteenth

Amendment. By resting instead on Debs, the Attorney

General suggests that Congress wasted its time by authorizing him to sue in the Civil Rights Acts of 1957,

1964, and 1965:

Does the principle of Debs render such statutory authority unnecessary in suits for injunction

or other specific relief whenever the President

or the Attorney General considers that there is

an important public interest in the deprivation

alleged?

Paul M. Bator et al., Hart and Wechsler’s The Federal

Courts and The Federal System 1307 (2d ed. 1973); cf.

William F. Young, Jr., Book Review, 32 Tex. L. Rev. 483,

484 (1954) (reviewing first edition of Hart & Wechsler)

(“It is clear, is it not, that some of these question marks

are gratuitous?”).

Third, the United States fails to distinguish a number

of opinions that persuasively refused its statute-free requests for injunctions to protect individuals from constitutional violations. See United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980) (refusing to enjoin unconstitutional police practices); United States v.

Mattson, 600 F.2d 1295 (9th Cir. 1979) (refusing to enjoin

unconstitutional institutionalization practices); United

States v. Solomon, 563 F.2d 1121, 1127 (4th Cir. 1977)

(same); see also Estelle v. Justice, 426 U.S. 925, 929

(1976) (Rehnquist, J., dissenting from denial of certiorari) (“If Debs, which held that a federal court had authori-

8

ty to issue an injunction against an armed conspiracy

that threatened the interstate transportation of the

mails, is to be extended to the [inmate litigation] situation presented by this case, I think the decision to do so

should be made by this Court.”). As those opinions suggest, inviting a separation-of-powers violation as the

United States does here is an odd way of “protecting the

supremacy of the Constitution.” U.S. Br. 10.

C. The United States’ Attempt To Derive A Cause Of

Action From Equity Is Foreclosed By Grupo

Mexicano

There is yet another fatal problem with the United

States’ proposed cause of action: It is incompatible with

this Court’s holding in Grupo Mexicano de Desarrollo

S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999),

which prohibits courts from invoking “equity” to create

remedies and causes of action that did not exist when the

original Judiciary Act was enacted in 1789. See id. at 318

(“[T]he equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary

Act.”).

The United States is proposing a cause of action that

would allow it to sue a state over an allegedly unconstitutional statute, but only when that statute cannot be challenged pre-enforcement under 42 U.S.C. § 1983 and Ex

parte Young. See U.S. Br. 10. In other words, the United

States wants this Court to recognize a cause of action in

equity that would allow the United States to sue, but only in situations where the traditional equitable cause of

9

action from Ex parte Young is unavailable. That confesses a violation of Grupo Mexicano. Equity cannot be used

to expand or fill gaps in traditional equitable remedies,

even when the proposed expansion or gap-filling seems

consistent with overarching purpose of a traditional equitable cause of action.

Consider the facts of Grupo Mexicano. The litigants

in that case sought to extend a traditional form of equitable relief — which allowed a post-judgment creditor to

restrain a debtor’s assets — into a similar but slightly

different situation, which would have allowed a prejudgment creditor to restrain a debtor’s assets and prevent transfers or dissipation that might frustrate the collection of the debt. The dissenters in Grupo Mexicano

thought this proposed extension was reasonable and

warranted, invoking “the grand aims of equity,” and noting that the available legal remedies were not “practical

and efficient.” See id. at 342 (Ginsburg, J., dissenting).

But the majority would have none of it, despite the fact

that the protection of pre-judgment creditors would have

been only a minor extension of the traditional equitable

remedy, and despite the fact that this proposed extension

would have furthered the overall purpose of the traditional equitable relief available to post-judgment creditors. All that mattered was that the particular remedy

sought — an injunction allowing pre-judgment creditors

to restrain a debtor’s assets — was not traditionally

available in equity. And no amount of “analog[y]”3 to a

See id. at 319 (“The United States as amicus curiae, however,

contends that the preliminary injunction issued in this case is

(continued…)

3.

10

traditional equitable remedy could allow a court to adopt

this proposed variation.

The United States tries to get around Grupo Mexicano by omitting relevant details about its proposed

“equitable” cause of action, by characterizing it as a

member of the broad family of remedies that seek “an

injunction against enforcement of an unconstitutional

statute.” U.S. Br. at 27. By that logic, the dissenters in

Grupo Mexicano should have prevailed by characterizing their proposed remedy as an injunction that merely

seeks to “restrain a debtor’s assets,” without regard to

whether the injunction protects a pre-judgment or postjudgment creditor, and then claiming that an equitable

remedy defined at that level of abstraction is deeply

rooted in historical practice. But the majority of Grupo

Mexicano specifically rejected this abstraction maneuver, which can always be used to characterize a novel

remedy (or a novel right) as grounded in history and

tradition.4

***

The most remarkable feature about the United

States’ argument is that it attempts to justify its proposed cause of action by invoking the existence of a con-

4.

analogous to the relief obtained in the equitable action known as

a ‘creditor’s bill.’ ”).

See, e.g., Jack M. Balkin, Abortion and Original Meaning, 24

Const. Comment. 291 (2007) (asserting that the original meaning of the Fourteenth Amendment encompasses a right to abortion, despite the fact that abortion was criminalized shortly after

the Amendment’s ratification, by boosting the level of generality

at which the relevant right is defined).

11

gressional statute that it claims does not go far enough

(42 U.S.C. § 1983), as well as the existence of a traditional cause of action (Ex parte Young) that it likewise claims

is insufficient because it cannot accommodate preenforcement lawsuits against private rights of action. See

U.S. Br. at 10 (“[T]he United States has a manifest sovereign interest in protecting the supremacy of the Constitution and preventing a State from nullifying this

Court’s precedents by thwarting judicial review under

Section 1983 and Ex parte Young — the mechanisms that

Congress and this Court have long recognized as essential to protect federal constitutional rights from state interference”). And the United States claims that this

Court should recognize an equitable cause of action to fill

the gaps in this existing remedial scheme. But this runs

headlong into the congressional-preclusion and Grupo

Mexicano problems. If the United States’ grievance is

that Congress created a remedy to vindicate constitutional rights in 42 U.S.C. § 1983 that does not far enough

to for pre-enforcement challenges to private rights of

action, then it cannot ask a court to invoke “equity” to fill

those statutory gaps. That is the very definition of congressional preclusion, and the executive must seek its

remedy from Congress and not the courts. And if the

United States is frustrated with the limited reach of Ex

parte Young — a cause of action that is traditionally rooted in equity — then it cannot invoke equity to “fix” that

problem given the holding of Grupo Mexicano.

12

CONCLUSION

The district court’s preliminary-injunction order

should be vacated, and the case should be remanded with

instructions to dismiss.

Respectfully submitted.

HEATHER GEBELIN HACKER

Hacker Stephens LLP

108 Wild Basin Road South

Suite 250

Austin, Texas 78746

(512) 399-3022

heather@hackerstephens.com

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue, Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

GENE P. HAMILTON

Vice President &

General Counsel

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

D. BRYAN HUGHES

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702-7221

(903) 581-1776

bryan@hughesfirm.com

October 29, 2021

Counsel for IntervenorRespondents