Congress has the power to stop bounty-hunting laws like Texas’ abortion ban. It must use it. - The Boston Globe
Congress is not a party in either of the Supreme Court challenges to Texas’ new, expansive abortion law, which places enforcement in the hands of individuals in order to evade scrutiny by the courts or the Department of Justice. But it looms large over the case.
In fact, “Congress” was mentioned 52 times during oral arguments Monday in the cases, which pit the Justice Department and abortion providers against Texas officials. And one thing parties in the case agree on is that federal lawmakers have the power to pass laws that ensure Texas’ tactics to end-run judicial review and federal oversight are not mimicked by other states in efforts to undercut other court-protected rights, from gun ownership to same-sex marriage. Congress must assert that power to make clear that judicial review and executive enforcement of constitutional rights are not things states can simply opt out of with clever tactics.
To be clear, Congress should not be in this position. The Supreme Court itself could and should rule that principles of equity require that states not be allowed to shield themselves from scrutiny from courts or the Justice Department, particularly when exacting state laws that violate individuals’ protected rights, as the Texas ban — which clearly violates the court’s precedent in Roe v. Wade — does. The Texas law is not enforced by state officials, but instead through private civil actions of at least $10,000 against anyone who so much as assists someone seeking an abortion, therefore preventing state officials from being sued to stop it.
“I mean, that was something that, until this law came along, no state dreamed of doing,” Justice Elena Kagan said during arguments in the case.
Kagan correctly noted that other states could copy that approach in laws that go far beyond abortion. If the court rules in Texas’ favor, Kagan said, it would essentially be telling those other states: “You’re open for business.”
Kagan added: “There’s nothing the Supreme Court can do about it. Guns, same sex marriage, religious rights — whatever you don’t like, go ahead” .
But while the justices seemed willing to allow a group of providers to challenge the law, they expressed far less confidence that the Justice Department could assert a constitutional challenge to the law as it is written. Without a statute giving the DOJ authority to make a constitutional challenge to a law, the court demonstrated no appetite to extend that authority based on legal principles.
That could prove disastrous, even if the right of individuals to assert constitutional challenges is preserved. Individuals are not in the same position as the Justice Department to guard against the kind of broadside attack on individual rights that the Texas law represents. From voting rights to school desegregation, history is replete with examples where Justice Department action was needed to protect individual rights.
Congress shouldn’t idly allow laws that intentionally tie the agency’s hands to stand unchallenged. Unless it makes crystal clear in statutory language that the rights of individuals and the responsibility of Justice Department officials to challenge unconstitutional laws can’t be circumvented by crafty state law maneuvers, then, as Solicitor General Elizabeth Prelogar said in her argument: “no constitutional right is safe.”
It won’t be an easy task. First, it will require including language in future legislation clarifying the rights of individuals to challenge, courts to review, and, where necessary, the Justice Department to take enforcement action against state laws that violate individuals’ protected rights.
As Jonathan F. Mitchell, a former Texas solicitor general who helped write the state’s abortion law, explained to the court, Congress could solve the problem “by enacting the Women’s Health Protection Act, which would preempt S.B. 8 and also abrogate state immunity and give the attorney general the explicit cause of action.” He is betting that Congress won’t, but lawmakers should call his bluff.
It would also require that Congress amend the existing federal law that gives individuals the right to sue over constitutional violations under Section 1983 of the US Code. Texas officials argued that because that law does not expressly state a right to sue over laws crafted as Texas’ is, such a right must not exist. Congress can correct that misinterpretation with a single sentence.
Texas may have opened a new frontier for state lawmaking, but Congress can assert its power to stop it.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
source: https://www.bostonglobe.com/2021/11/07/opinion/congress-has-power-stop-bounty-hunting-laws-like-texas-abortion-ban-it-must-use-it/
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