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The U.S. Department of Justice building is pictured in Washington, U.S., March 21, 2019. REUTERS/Leah Millis
(Reuters) - In 1894, American Railway Union leader Eugene Debs effectively shut down railroad traffic in the western United States, in a strike that led to rioting and bloody clashes with federal troops.
Nearly 130 years later, the U.S. Justice Department is relying on a U.S. Supreme Court ruling against Debs to shut down Texas’ anti-abortion law.
The DOJ, as you surely know, sued Texas on Thursday to block enforcement of a state law that bars most abortions after six weeks. The Justice Department’s complaint, filed in federal court in Austin, Texas, alleges that the Texas law, known as S.B. 8, deprives women of Fourteenth Amendment rights vouchsafed by the U.S. Supreme Court. The lawsuit contends that the courts cannot allow Texas to dance a tricky two-step around that precedent – deputizing private citizens instead of state authorities to enforce the prohibition – to avert judicial review.
“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution,” the complaint said. “Where, as here, a state seeks to strip individuals of their ability to challenge state action that indisputably violates their federal constitutional rights, the United States has a profound sovereign interest in ensuring that those constitutional rights remain redeemable in federal court.”
Enforcing that sovereign interest through litigation, however, requires the federal government to establish its right to sue in federal court. And that’s where the Debs case comes in.
In the midst of the 1894 railway turmoil, which began when employees of the Pullman Palace Car Co went on strike to protest pay cuts and escalated when the union called for a boycott of all railroads that used Pullman cars, President Grover Cleveland’s administration sought and won an injunction barring the boycott, arguing that the federal government was empowered by the Interstate Commerce Act to assure rail traffic, including postal deliveries. Debs and other union officials were eventually held in contempt of the injunction and imprisoned. They went to the Supreme Court for a writ of habeas, contesting the government’s right to seek the injunction.
The Supreme Court’s 1895 ruling in In re Debs did not merely confirm that the U.S. interest in protecting commerce and mail delivery justified the injunction. The court instead offered a sweeping view of the interests of the executive branch in protecting public rights.
“The obligations which [the government] is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it standing in court,” the court held. The issue, the Debs court said, is whether “the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the nation, and concerning which the nation owes the duty to all the citizens of securing to them their common rights.”
In the 1950s, '60s and '70s, the Justice Department capitalized on Debs’ broad holding in a series of suits to enjoin alleged civil rights violations. Broadly speaking, the DOJ’s cases alleged that Fourteenth Amendment violations were interfering with interstate commerce. Many cases quite literally involved interstate transportation: The Justice Department’s suit against Jackson, Mississippi, which is also cited in the new Texas complaint, alleged, for instance, that the city’s segregated bus and rail terminals violated anti-discrimination provisions in the Interstate Commerce Act. (The government’s standing in that case was affirmed by the 5th U.S. Circuit Court of Appeals, which also oversees the Texas court that will hear the DOJ's suit to enjoin S.B. 8.) But the DOJ’s interest in interstate commerce even extended, according to a federal judge in New York, to allegedly discriminatory process service of debt collection suits in a minority neighborhood.
Apparently to bolster its arguments for standing in the Texas abortion case, the Justice Department’s complaint includes an explanation of why the Texas ban interferes with interstate commerce. Among other things, the suit alleges, the law will force women seeking abortions to travel outside of the state. And because the law purports to impose liability for “facilitating” an abortion, the complaint said, it may implicate banks, insurance companies and medical device sellers that operate across the country.
The Supreme Court in Debs said the government need not show a monetary interest in an issue to establish its standing, but the DOJ’s Texas complaint nevertheless alleges that the abortion ban will impose costs on the federal government, such as S.B. 8 penalties on federal agencies that facilitate constitutionally guaranteed abortions or travel costs for women under government care who must leave Texas to obtain abortions.
Will that be enough to assure the Justice Department a right to sue Texas over the law? I reached out to Texas State Senator Bryan Hughes and former Texas Solicitor General Jonathan Mitchell, whom my Reuters colleague Jenna Greene credited with the “crafty lawyering” of S.B. 8, to ask if they planned to challenge the DOJ’s standing. Neither got back to me.
I’d say a challenge is quite likely, though, because the Debs precedent has been called into question. In two cases after the DOJ’s flurry of mid-century civil rights suits, federal appellate courts held that the U.S. did not have standing. The 4th Circuit turned away a Justice Department lawsuit over Maryland’s treatment of mental health patients in 1977’s U.S. v. Solomon, and the 3rd Circuit found no standing for the DOJ in a lawsuit against Philadelphia and its top-ranking police officials in U.S. v. City of Philadelphia. “This lawsuit represents an attempt by the federal executive to intervene on a grand scale in the workings of a local government, an area that is manifestly the concern of the states and not the federal government,” the 3rd Circuit wrote.
Law professor Melissa Murray of New York University, who specializes in reproductive rights, told me that the Texas law is so procedurally radical that the DOJ had to “fight fire with fire.”
We’ll see if that 1895 Debs decision still packs some heat.
Read more:
U.S. sues to block Texas abortion ban, calls it 'unconstitutional'
Crafty lawyering on Texas abortion bill withstood SCOTUS challenge
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