In the law, there is a concept known as a “chilling effect.” Put most simply, it means that the potential reach of the law intimidates people into not exercising a potential constitutional right for fear of the severity of the legal consequence if a court finds that the law is constitutional and covers your proposed activity. The claim of a chilling effect is most often made in the context of the First Amendment when a statute covers speech or expressive conduct. A person challenging a broad law can claim that — even if their activity could be barred by a valid law and potentially violates the law under some reasonable interpretation — the law is subject to other reasonable interpretations that would bar constitutionally protected speech. But the concept of a chilling effect exists in other contexts too.
One remedy to preclude the chilling effect of an unconstitutional law is to allow the subjects of regulations raise “pre-enforcement” challenges to the law. The essence of a pre-enforcement challenge is that the plaintiff: 1) has been doing X; 2) would continue doing X but for the law; 3) is unable to continue doing X because she does not know if the new law is valid; and 4) believes that the law is unconstitutional. A pre-enforcement action can lead to a “stay” which allows effected individuals to continue with their activities until the challenge is resolved with no legal consequences. In the absence of a pre-enforcement challenge, somebody has to be brave enough to violate the law and risk the consequences if the law is upheld. In essence, they volunteer to be the “test” case for the statute. While test cases are not unusual as the exact operation of any new law or rule is unclear until after a couple of cases have worked their way through the system, the consequences of being wrong in your belief about how the law should be interpreted can be devastating for the person alleged to have violated the law.
After the passage of the Bill of Rights, the next amendment adopted was the Eleventh Amendment. Article III allows a federal court to hear a case based on “diversity” jurisdiction. One early case involved a resident of one state to sue a different state. Now, traditionally, a government was immune from being sued in its own court (commonly referred to as “sovereign immunity”). The Eleventh Amendment overturned that initial case. By its plain text, the Eleventh Amendment only eliminates diversity jurisdiction by barring a non-resident from suing a state. For true textualists, nothing in the text of the Eleventh Amendment bars a suit filed by a resident of a state against his own government. However, over the years, the court have created their own rules for what the Eleventh Amendment means.
The judge-created alternative Eleventh Amendment creates three basic rules. First, you can only sue a state and local government for damages in federal court under very limited circumstances (typically involving the violation of statutory rights); 2) a party may not obtain an injunction in federal court directed to the state government and any such injunction can only be directed to individual state officials charged with enforcing the law; and 3) such an injunction may not be directed against state judicial officials charged with hearing cases brought under the law (i.e. in their judicial capacity).
Until recently, these rules allowed pre-enforcement challenges to most dubious state laws. Almost all laws that create a penalty assign some government official the responsibility for investigating and prosecuting any violations of the law. But over the past several years, conservative legal scholars seized on the old concept of private attorneys general to find a way to avoid pre-enforcement challenges. Under this new scheme, the enforcement of the new regulation would be left to private individuals. Since these no government official had any authority to enforce these new regulations, there was no state official to sue.
Which brings us to the (potential) death of the Constitution — or, at least, the part of the Constitution that protects certain individual rights like free speech, a free press, gun rights, and other aspects of personal liberty. Under this new idea, the government can pass all types of regulations that limit personal freedom. For example, imagine this regulatory scheme: 1) barring commenting about public officials on the internet using any handle other than a person’s true handle; 2) allowing any person (in the interest of defending the truth) to seek a civil penalty against any person who makes a “less than fully true” statement on the internet and against any website that permits its users to post such less than fully true statements or does not verify the identity of all individuals making such posts; and 3) putting the burden on the person who made the statement to prove that the statement was one hundred percent true (i.e. factually accurate and including all relevant details to put the claim in the proper context). Now this law is clearly unconstitutional, but only big internet companies will have the ability to fight the multitude of cases that could be brought under such a statute.
The first test case of this new theory was decided on Friday — Whole Women’s Health vs. Jackson. This case involved a pre-enforcement challenge to Texas’s Senate Bill 8 which abortions after eight weeks (effectively less than four weeks after the missed period). While some in the media are portraying this decision as a win for abortion providers, it was not. It was a massive loss with a crumb tossed at the end to give a fig leaf to cover the reality of the decision.
Senate Bill 8 generally leaves enforcement to private citizens with a big penalty provision. Under the statute, anybody who helps a woman get an abortion after eight weeks is subject to a significant civil penalty. Court costs defending a case could easily exceed the potential penalty, but, if a defendant wins the first case, they can still be sued multiple times. Not wanting to have to wait until they are sued to find out if this law is invalid (which it clearly is under current law, but reactionaries want to have the Supreme Court overturn the current law), an abortion provider in Texas brought a challenge against state court clerks, state court judges, the Texas Attorney General (Ken “I am not a crook” Paxton), the state medical board, and a person involved in the passage of the law who might bring a case under the law.
By a 5-4 vote (the three Trump Justices plus Justices Thomas and Alito) the majority sided with the State of Texas with a very limited exception. The Supreme Court, faced with a novel legal situation that exploited a loophole in the prior case law, reaffirmed its nontextual interpretation of the Eleventh Amendment. Because judges (and court clerks) merely hear cases and do not “enforce” the law, judges and court clerks are not proper defendants in a pre-enforcement challenge. Because the Texas Attorney General has no role in enforcing the law, he is not a proper defendant even as the attorney for the State of Texas. And because the private individual disavowed any current intent to bring a case under the statute (which may change), he is not a proper defendant. In short, if a statute eliminates any state official from enforcing its provisions, a pre-enforcement challenge is not permitted in federal court. (In some states, there might be a state law mechanism to file such an action in state court. Apparently, Texas may — and may can’t be overemphasized — allow such pre-enforcement action as a state court has entered a stay on Senate Bill 8 for now.)
By an 8-1 vote (everyone but Justice Thomas), the Supreme Court found a loophole in the statute that allows the pre-enforcement challenge to proceed. Not having read Senate Bill 8, I am not sure how valid the loophole is. From everything that I have read, the loophole is not expressly in the statute and the Supreme Court did some creative reading of Texas law to hold that there is a loophole. The basic theory of the loophole is that Senate Bill 8, by barring medical personnel from providing abortions after eight weeks, creates a regulation of medical personnel. In other parts of Texas law, the state medical board has the authority for disciplining medical personnel who violate any law regulating the medical profession. Therefore, even if Senate Bill 8 does not expressly allow the state medical board from disciplining a doctor for violating Senate Bill 8, such discipline is possible. And because such discipline is possible, doctors and medical centers can sue the state medical board in a pre-enforcement action challenging the validity of this new law regulating the medical profession.
By allowing this loophole, the four-justice plurality (Justices Alito, Barrett, Gorsuch, and Kavanaugh) get to say that they are not blocking pre-enforcement challenges, but the basic holding creates the pathway forward for any interest group that wants to create a regulation that infringes constitutional right. The fix for a future Senate Bill 8 is to include language expressly providing that no regulatory body can discipline a person for violating the provisions of the bill. With such a fix, there would be no loophole to assign some executive branch official the authority to enforce some part of the new law. And since this decision reinforces the inability to sue a state (or its legislature) for an unconstitutional law or to sue the judicial personnel who would hear any case brought under the law, there would be no door into federal court for such challenges. And, if a new unconstitutional law primarily impacts mid-size organizations that do not have the resources to fight the law (or risk the consequences of losing), there will be nobody in a position to prevent the deprivation of constitutional rights.
And so, the Constitution dies, one small step at a time. The Constitution is not dead yet, but a potentially fatal wound has been inflicted. There are numerous authors of this death over the past decade, but the route to kill freedom has been laid out for those who wish to walk the path toward an authoritarian government. The time is dwindling to take back our country from Chairman Trump and his supporters because soon the Constitution may only exist on paper.
