1 1
Phil1111

Texas, the GOP, Abortion and the USSC

Recommended Posts

It seems to me there are two issues with the law, which could be attacked separately.  If either falls, the law would fall.

1. The State passed a law, but it declines to enforce any aspect of the law, and delegates that to "common citizens".

2.  The law outlaws abortion before most women can even possibly know they are pregnant, and so in effect it is a ban on a constitutional right.

Currently the supreme court said they can't rule on 2 because there is no legal precedent for 1 and so they don't know how to approach the problem.  They prefer to have lower courts thrash it out rather than deal with it themselves at this point.

Regarding 1, it seems to me that there is a serious question whether a law that the state does not to enforce itself is constitutional.  Can a state pass a law that it does not intend to enforce?  Conservative states (including Texas) went all the way to the Supreme Court to argue that once the individual mandate disappeared there was no enforcement mechanism for Obamacare, and that lack of an enforcement mechanism (i.e. a "tax") made the whole law invalid.  Also the law destroys the long-standing concept of "standing" by giving everyone, anywhere, standing without having to show they have suffered any harm.  If this becomes precedent, the courts will be flooded with people suing over issues where they would previously lacked standing.  If only as an act of self-preservation, the courts have to stamp out this precedent.

Regarding 2, the time frame for limiting abortions is clearly unconstitutional in light of all Supreme Court rulings to date.  Even if the court does not rule that way, if the system of empowering "common citizens" to enforce the law falls, and the state refuses to enforce it themselves, then the law will be without effect.

Given the amount of emotion attached to the abortion issue, I think a full fledged attack on 1, without dragging 2 into the argument, would be wise.  That does not preclude an independant, equally strong attack on 2 of course.

 

Don

Share this post


Link to post
Share on other sites
(edited)
15 minutes ago, GeorgiaDon said:

It seems to me there are two issues with the law, which could be attacked separately.  If either falls, the law would fall.

1. The State passed a law, but it declines to enforce any aspect of the law, and delegates that to "common citizens".

2.  The law outlaws abortion before most women can even possibly know they are pregnant, and so in effect it is a ban on a constitutional right.

Currently the supreme court said they can't rule on 2 because there is no legal precedent for 1 and so they don't know how to approach the problem.  They prefer to have lower courts thrash it out rather than deal with it themselves at this point.

Regarding 1, it seems to me that there is a serious question whether a law that the state does not to enforce itself is constitutional.  Can a state pass a law that it does not intend to enforce?  Conservative states (including Texas) went all the way to the Supreme Court to argue that once the individual mandate disappeared there was no enforcement mechanism for Obamacare, and that lack of an enforcement mechanism (i.e. a "tax") made the whole law invalid.  Also the law destroys the long-standing concept of "standing" by giving everyone, anywhere, standing without having to show they have suffered any harm.  If this becomes precedent, the courts will be flooded with people suing over issues where they would previously lacked standing.  If only as an act of self-preservation, the courts have to stamp out this precedent.

Regarding 2, the time frame for limiting abortions is clearly unconstitutional in light of all Supreme Court rulings to date.  Even if the court does not rule that way, if the system of empowering "common citizens" to enforce the law falls, and the state refuses to enforce it themselves, then the law will be without effect.

Given the amount of emotion attached to the abortion issue, I think a full fledged attack on 1, without dragging 2 into the argument, would be wise.  That does not preclude an independant, equally strong attack on 2 of course.

 

Don

Hi Don,

Re:  Can a state pass a law that it does not intend to enforce?

I think probably know the answer to this.

I do not know the government in Texas.  Here in Oregon, our government is almost a copy of the federal gov't.

The legislative branch ( House & Senate ) makes the laws.  Then, they have no more involvement in it.  With one exception; they can curtail money needed to enforce a law.

The executive branch ( governor ) enforces those laws.

So, IMO yes, a state can pass a law that they do not intend to enforce.

YMMV.

Anyone else?

Jerry Baumchen

Edited by JerryBaumchen

Share this post


Link to post
Share on other sites

Jerry, I do not understand your response.  Of course the legislative branch passes laws and the executive branch enforces them.  Both are branches of the government, and that is how our government is structured under state and the federal constitution.  Different branches have different jobs, but it's all the government.  Just because the FBI (or ATF, or EPA, and so on) is administered by the White House and not Congress, that in no way implies that laws passed by Congress are not enforced or are not even intended to be enforced by the federal government.

In the case of the Texas law, the law explicitly forbids any branch of the state government, whether controlled by the legislature or the Governor's administration, from enforcing any aspect of the law.  I can't think of any other law, passed by any legislative body at any level, that explicitly forbids the government from playing any role in enforcing that law.  I believe that that "feature" renders the Texas law unconstitutional.  I believe that erasing the entire concept of "standing" also cannot be permitted, as it would allow anyone to sue anyone over anything without having to show that they have been harmed in any way.

  • Like 1

Share this post


Link to post
Share on other sites
18 hours ago, JerryBaumchen said:

Hi Don,

Re:  Can a state pass a law that it does not intend to enforce?

I think probably know the answer to this.

I do not know the government in Texas.  Here in Oregon, our government is almost a copy of the federal gov't.

The legislative branch ( House & Senate ) makes the laws.  Then, they have no more involvement in it.  With one exception; they can curtail money needed to enforce a law.

The executive branch ( governor ) enforces those laws.

So, IMO yes, a state can pass a law that they do not intend to enforce.

YMMV.

Anyone else?

Jerry Baumchen

The Governor is also the State. It may stink to high heaven, like all religious law, but unless it works it's way back up the Courts and is changed the citizens of Texas have standing: their beliefs were offended. Insanity.

Share this post


Link to post
Share on other sites
18 minutes ago, ryoder said:

LegalEagle does a long analysis of SB8 and the legal maneuvers since it was signed (30 minutes):

 

Hi Robert,

Interestingly, just the other day I was thinking about this new Texas abortion law.

My brother & his wife are snow-birders, they have a place in Yuma & go down every year.  Like many of the snow-birders there, they go over the border into Mexico for dental work.

So, I'm thinking that the southern side of the Rio Grande might soon be populated with abortion clinics.  Go have fun in Mexico & get that fetus taken care of; all at the same time.

Jerry Baumchen

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

1 1