Problems about judicial review as revealed by Texas SB8
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  Problems about judicial review as revealed by Texas SB8
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Author Topic: Problems about judicial review as revealed by Texas SB8  (Read 313 times)
David Hume
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« on: September 07, 2021, 02:16:59 AM »

I read the court's order regarding Texas SB8, the paper writ of erasure fallacy https://www.supremecourt.gov/opinions/URLs_Cited/OT2017/16-476/16-476-3.pdf
and some legal analysis. If I understand correctly,

1, the judicial has no power to nullify a duly enacted statute, no matter how unconstitutional it is. What it can do is to enjoin the one sued from enforcing the statue.

2, those not sued are not bounded by the court's order to not enforcing the statue.


If so, even without the creative SB8, there are already problems.

Say AL passed a law banning all abortions, and ordered the state police to close any abortion clinics. Planned parenthood sued the AG Tom, and the court declared the law unconstitutional, and enjoined Tom from enforcing it.

1, Tom resigned and Peter becomes the next AG. Since he was not sued and the order did not include his name, why is he bounded by the court's order that enjoined Tom from enforcing it?

2, Peter orders state law enforcement to stop enforcing that law. But some policeman John decided to ignore Peter's order, and closed several abortion clinics, claiming he was enforcing the law. What can be done against John? And based on what?
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Torie
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« Reply #1 on: September 07, 2021, 06:50:12 AM »

1. Can the court enjoin the enforcement arm, the AG's office, rather than limiting it to an individual person?

2. If not, presumably another lawsuit would be filed, and the court would issue an emergency ex parte preliminary injunction against the new AG on the block.
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« Reply #2 on: September 07, 2021, 12:45:01 PM »

Id assume  this case would be against the state of Alabama and particularly the Alabama justice department and not any individual AG. The reason Texas's law didnt get blocked is the state if basically not enforcing the law, as it more or less just got rid of some civil immunity protections
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David Hume
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« Reply #3 on: September 07, 2021, 01:55:19 PM »

1. Can the court enjoin the enforcement arm, the AG's office, rather than limiting it to an individual person?

2. If not, presumably another lawsuit would be filed, and the court would issue an emergency ex parte preliminary injunction against the new AG on the block.

My understanding is only the person sued is enjoined. Otherwise the SB8 lawsuit can be against all the state courts in TX.
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David Hume
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« Reply #4 on: September 07, 2021, 01:56:54 PM »

Id assume  this case would be against the state of Alabama and particularly the Alabama justice department and not any individual AG. The reason Texas's law didnt get blocked is the state if basically not enforcing the law, as it more or less just got rid of some civil immunity protections
I don't think that's the case according to ex parte Young.
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« Reply #5 on: September 07, 2021, 02:00:02 PM »

1. Can the court enjoin the enforcement arm, the AG's office, rather than limiting it to an individual person?

2. If not, presumably another lawsuit would be filed, and the court would issue an emergency ex parte preliminary injunction against the new AG on the block.

My understanding is only the person sued is enjoined. Otherwise the SB8 lawsuit can be against all the state courts in TX.

The thing is the state courts havent ruled on any cases yet which is why SCOTUS didnt block it
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David Hume
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« Reply #6 on: September 08, 2021, 02:59:12 AM »

1. Can the court enjoin the enforcement arm, the AG's office, rather than limiting it to an individual person?

2. If not, presumably another lawsuit would be filed, and the court would issue an emergency ex parte preliminary injunction against the new AG on the block.

My understanding is only the person sued is enjoined. Otherwise the SB8 lawsuit can be against all the state courts in TX.

The thing is the state courts havent ruled on any cases yet which is why SCOTUS didnt block it
But still, only those sued are enjoined to enforce, right?
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