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  • Balancing TX Abortion Law, Citizen Suits & Personal Liberty

Balancing TX Abortion Law, Citizen Suits & Personal Liberty

William L. Kovacs

September 2021

Balancing TX Abortion Law, Citizen Suits & Personal Liberty

The Texas abortion law is a 21st c. version of what the 18th c. called Personal Liberty Laws. These were laws enacted by Northern states from the founding of the Republic to the Civil War, to protect fugitive slaves. They were grounded on the principle that states can protect the rights of individuals within their borders from the oppressive laws of the Federal government and other states.

To avoid federal supremacy rendering inconsistent state laws void, States enacted laws grounded in purely local procedure to make it difficult for bounty hunters to capture fugitive slaves. These laws restricted the use of state resources by bounty hunters. For example, bounty hunters could not hold fugitive slaves in local jails, and local jurisdictions imposed high court costs to secure the “legal transfer” of a fugitive slave, to substantially reduce the value of the bounty.

It is not necessary, however, to enter the abortion debate in order to compare the characteristics of the Texas abortion law to the 18th c. Personal Freedom Laws. Both create procedural hurdles to protect the rights of an unprotected class from what is deemed abhorrent federal policy. While the Texas abortion law is unlikely to be decided by the U.S. Supreme Court since the Mississippi abortion case is scheduled for argument, the fact that Texas has enacted such a law suggests states are more willing to resist federal overreach.

The two most prominent features of the Texas law address the viability of the fetus, and the right of private citizens to sue anyone involved in aiding or abetting abortions and receive a bounty of $10,000. The citizen suit provision has been described as deputizing “bounty hunters.” The pro-abortion groups and the political Left believe the enforcement provision denies women of their constitutional right to an abortion under Roe v. Wade.

But the political Left’s opposition to the citizen suit provision of the Texas statute may severely backfire on them if they prevail. Specifically, the political Left routinely uses the “citizen suit or “private right of action” provisions in environmental statutes to stop private parties from producing oil and gas, building pipelines and new industrial facilities, roads, and airports. In every federal environmental statute, the political Left is able to seek injunctions and attorneys’ fees, which many times vastly exceed $10,000. By using citizen suits, the political Left shuts down thousands of private projects and receives payment for doing so. This makes them “bounty hunters” as much as the $10,000 reward under the Texas Abortion law.

The sixteen primary federal environmental statutes all have these “bounty hunter” provisions that “allow citizens to sue as ‘private attorneys general to force compliance.”  A 2018 study found since 1993 citizen suits have averaged 350 annually. Since 1970, environmentalists have filed more than 2000 citizen suits, and more than four thousand notices of intent to sue regulated private parties. In some areas like Clean Water, most of the reported cases are citizen suits brought by environmental groups.

Most states also have environmental “citizen suits,” statutes. As expected, there are many different versions.

The stronger the Left’s constitutional challenge to the private right of action in the Texas abortion law, the more pressure the Left puts on courts nationwide to restrict the private right of action in all citizen suits, for lack of standing, i.e., citizens cannot establish sufficient individual harm to move the controversy forward.

For decades federal courts have allowed citizen suits to proceed if any member of the environmental community  alleges a “health, aesthetic, and recreational interest.” However, a 2016 U.S. Supreme Court decision, required more “concrete and particularized” injury to proceed with the case. Federal courts may be courts of limited jurisdiction, but many state court judges follow much of their reasoning.

State courts are another matter. Many states do not place limits on who has the standing to sue in their courts. In Texas, it appears some courts are moving toward the federal approach of limiting standing, however, its Supreme Court has concluded that, if authorized by statute, plaintiffs do not have to show particularized injury. For example, the Texas Medicaid Fraud statute allows anyone to sue to prevent fraud. In 2019 a Texas Appellate court reaffirmed the Texas Supreme Court’s holding that “a party does not have to show particular interest or damage to establish standing because the statute at issue authorized “any citizen” to bring an action to enjoin the operation…” of illegal activity.

The political Left is wedged between being the overwhelming beneficiary of “citizen suits” and “private enforcement” of laws, and a U.S. Supreme Court that seeks limits on who can file a citizen suit. The political Left will need to decide what is more important – open access to the courts or denying Texans the right to enforce the Texas abortion law. By continuing the legal challenge to the Texas law, the Left will develop significant legal theories and court precedent, which will be used against it when seeking standing on environmental issues.

As more states provide greater protection of their citizens by enacting Personal Liberty Laws, they will rely on citizen suits and local courts, to enforce those protections. As the federal courts deal with an ever-increasing docket, they will devise more reasons to restrict citizen suits for lack of standing. The Texas abortion law is only the start. States will protect many activities they believe need protection, i.e.,  the Second Amendment, treatment of illegal immigrants, free speech, and the teaching of Critical Race Theory. In the end, it is likely blue states will legislate to protect blue values and red states will legislate to protect red values. This is actually positive since it allows citizens to select where and how they want to live.

The U.S. will continue evolving into a more divided nation of Free States and Socialists States. Free States will try to protect what they view as the constitutional rights of citizens. Socialists States will promote more borrowing, spending, and subsidies for expanded social programs.  At the federal level, the policy positions of presidents seem to be swinging more wildly with the political winds. The Biden administration for example deeply resents states like Florida for its efforts to expand privacy rights and protect free speech on social media. Inflicting punishment on “objectionable” states will become the norm for the federal government. Biden has already started what seems to be a war on many parts of America; states, the unvaccinated, border patrol agents, conservatives, and many others. Every time high-ranking officials attack different parts of society; it makes it harder to bring political balance to our nation.

William L. Kovacs, author of Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens, Winner of the 2021 Independent Press Award for Social/Political Change. Former senior vice president, U.S. Chamber of Commerce, chief counsel on Capitol Hill.












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  • Supreme Court Rules Some States More Equal than Texas

Supreme Court Rules Some States More Equal than Texas

William L. Kovacs

January 2021

Supreme Court Rules Some States More Equal than Texas

January 6, 2021, the electoral college elects Joe Biden the 46th President of the United States. The Republic still stands, although worse for wear due to the siege of the Capitol and the fact one-third of citizens lack trust in the election results. Polarization will intensify dramatically due to “Big Tech’s” purge of conservatives on social media and its de facto synchronized shutdown of Parler.  If the Democrats allow Big Tech’s communication blackout of conservatives to continue, the Achilles Heel of democracy will be the U.S. Supreme Court’s decision in Texas v Pennsylvania that some states have more standing in the union than others, which makes some states more equal than others. This decision eliminates the ability of states and their attorneys general to protect citizens, even citizens that move to states seeking freedom from oppression in other states.

By failing to provide any explanation for denying Texas an opportunity to prove its citizens were denied the same voting rights as afforded other states, the Supreme Court took away the right of a state to argue for its equality in the union, at a time when it needed to instill trust in government.

The U.S. Supreme Court’s summary dismissal, for lack of standing, of the lawsuit brought by Texas and supported by 18 other states, to overturn the asserted fraudulent election practices in PA, WI, MI, and GA, is inconsistent with its seminal decision on the standing of states. In Massachusetts v. EPA, the court ruled “…States are not normal litigants’ for the purposes of invoking federal jurisdiction.” States “… retain the dignity…of sovereignty… [and are] entitled to special solicitude in our standing analysis.”

More troubling, however, by refusing to explain its decision, the court misleads the American people on the constitutional responsibilities of state legislatures and Congress in the electoral process.

Before getting to the substance, however, media gossip suggests there may be a simple explanation for its actions? Is chief justice Roberts being influenced by the liberal media’s warning of damage to the court? Is he influenced by the “unidentified mobs” who threaten to riot? Or does he vote, however necessary, to avoid any suspicion of voting ideologically? As one commentator “freely admit[s]” he writes to pressure Roberts to acquiesce to threats. The fact that opinion writers believe Roberts is influenced by criticism creates the very distrust of the judiciary the chief justice wants to avoid. If these rumors are even slightly true, Democracy is at great risk.

An alternative constitutional approach the court could have taken without helping Trump, if that was its concern, would be to dismiss the case as a “political question.” The Supreme Court could have avoided deciding the controversy by explaining the constitution and federal statutes commit “the issue to a coordinate political department,” i.e., state legislatures and Congress. By taking this approach the court would have clearly informed the other branches of government it was their responsibility to resolve the conflict as guardians of the Constitution. Could it be the Supreme Court relied on “standing” rather than “political question” to maintain the appearance of an all-powerful court, rather than acknowledging the limits of its power? According to Professor Tokaji, there are “…no federal laws allowing judicial contest proceedings over disputed federal elections.”

Another failure of the U.S. Supreme Court was a complete lack of consistency in the handling of presidential election disputes.

The U.S. Supreme Court decided two disputed presidential elections (2000 and 2020) in diametrically different ways.  In the 2000 electoral dispute in Bush v. Gore, Florida’s 25 electoral votes were in dispute over the validity of incompletely punched paper ballots.  These ballots were being counted differently by different election officials. The U.S. Supreme Court directly usurped Florida law by blocking the Florida Supreme Court’s order authorizing a recount. It also found the Florida Supreme court’s order standardless, a violation of the Constitution’s equal protection clause. The court noted, “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”

In 2020, Texas petitioned the U.S. Supreme Court alleging that the four contested states failed to provide equal protection to voters and electors in other states by counting votes in a manner contrary to the state legislatures as directed by the constitution. If the equal protection clause protects the votes of Florida citizens in different counties, as in Bush v Gore, it is essential that equal protection applies to the votes of presidential electors in different states, since it is the combined weight of their votes that elect the president. Simply, each elector’s vote must be equal to the vote of electors in other states, otherwise, the votes of electors from different states have different weight in electing our president.

The electoral college consists of 538 electors. To win the presidency, the candidate must receive 270 electoral votes. Citizens do not vote for president, state electors do. Most state legislatures select electors based on the winner of the popular vote in their state.

Using Pennsylvania as an example, its legislature allowed all votes to be counted if the votes were received by 8 pm on election day. Contrary to state law, state election officials counted votes received for three days after the election. The petitioning states like Texas counted only votes cast on or before election day. Texas followed the intent of its legislature.  The four defendant states followed the rules of election officials and state courts. This disparate process raises equal protection concerns.

Immediately after the Supreme Court’s decision, Colonel West, chairman of the Texas Republican Party, suggested: “…law-abiding states should bond together and form a Union of states that will abide by the constitution.” His comment acutely captures the fact one set of states operates according to state legislative intent while others disregard state legislative intent, a distinction the Supreme Court failed to recognize.

West’s suggestion, creating a compact of states that follow constitutional directives, is sanctioned by the Compacts Clause, Article I, section10, of our Constitution. Presently, a group of 15 Democrat states is forming the National Popular Vote Interstate Compact to require all states in the compact to cast their electoral votes for the winner of the national popular vote, notwithstanding the winner of the election in any specific state. The Democrats’ compact, when ratified by states having 270 electoral votes, would elect presidents by the national popular vote, a radical change to the current electoral college which assigns electoral votes by the winner of specific states.

By ruling states have no standing to challenge the different standards for selecting electors in the respective states, the U.S. Supreme Court sanctions an electoral process that allows electors from different states to cast their votes for president based on different standards, some established by the state legislature, others by unelected election officials and perhaps soon, by interstate compact.

Ensuring the votes of electors in the respective states are all equal when cast is essential to electing a president since citizens can only vote for electors.

How does a Republic continue governing itself if some states are more equal than others?