Month: November 2021

If Glenn Youngkin Has to Answer for Trump, Terry McAuliffe Really Has to Answer for Randi Weingarten


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Former Virginia Gov. Terry McAuliffe is running against Republican challenger Glenn Youngkin to get his old job back as governor of the commonwealth. But McAuliffe clearly wishes that he was running against former President Donald Trump.

Indeed, McAuliffe is so eager to tie Youngkin to Trump that when the ex-president failed to appear at any of Youngkin’s campaign rallies, the Democratic candidate simply fabricated a joint event. “Guess how Glenn Youngkin is finishing his campaign?” McAuliffe asked a gathered crowd at his own campaign event Monday night, according to POLITICO. “He is doing an event with Donald Trump here in Virginia.”

This was not true. Trump is not in Virginia and has never come to Virginia to campaign on Youngkin’s behalf. (Trump did hold a last-minute “tele-rally” for Youngkin that did not involve the candidate.)

McAuliffe has by now tried to associate Youngkin with Trump so frequently that Youngkin eventually released a campaign ad in response, making fun of McAuliffe for saying the word Trump so many times.

Trump is the de facto leader of the Republican Party, and very few Republican political figures are willing to denounce him and risk alienating his supporters. (Those who have denounced him were quickly marginalized.) It’s thus fair to make Republicans own that association: Trump is their man, and they have to answer for him.

But if Youngkin has to answer for Trump—someone he has taken great pains to avoid—shouldn’t McAuliffe be held responsible for the company he actively chooses to keep?

McAuliffe is closing out his campaign by elevating a close surrogate on education issues: American Federation of Teachers President Randi Weingarten, an individual who bears more responsibility than anyone else for the U.S. school system’s total abdication of responsibility to families during the COVID-19 pandemic. “When history books are written about why U.S. K-12 schools were more closed than those of any other rich country, Weingarten will be on the cover,” wrote Reason‘s Matt Welch.

McAuliffe recently gave parents the impression that he does not believe they deserve a say over school curriculum; after this proved to be a controversial remark, he half-heartedly tried to walk it back. But Weingarten’s view on the matter is abundantly clear: She recently tweeted a link to an opinion column in The Washington Post titled, “Parents claim they have the right to shape their kids’ school curriculum. They don’t.” Weingarten added the comment: “Great piece on parents’ rights and public schools.”

By any fair standard, McAuliffe has to own that view, too.

On Twitter, MSNBC’s Chris Hayes writes that he’s intrigued by the salience of “education” issues in the Virginia gubernatorial race, even though the complaints about schools seem to have changed. “A year ago it was going to be all about how schools were still closed!” he tweeted. “Then they opened and it was both masks and” critical race theory.

But there’s a very clear link between the two. Throughout the pandemic, the education system asked working families to make tremendous sacrifices. Teachers expected parents to take a much more involved role in their children’s school routines, ensuring that they turned on their screens and logged into virtual classes, etc. For many parents, this was a significant ask. Some of them did not like what they saw, and have questions about the curriculum. Now schools have reopened—though constant COVID-19 induced closures continue to cause frustrations—and parents are suddenly being told that they shouldn’t be so involved, that it’s the job of school boards and government officials to educate the kids.

Many parents are undoubtedly at their wits’ end. That is why education has become the most important issue in the Virginia governor’s race—and why it was such a mistake for Democrats to ignore irate protesters at school board meetings, or worse, insult them as potential “domestic terrorists.”

McAuliffie recently suggested that he’s proud of the Virginia school system, and strongly implied that he had sent his own kids to the commonwealth’s public schools. “We have a great school system in Virginia, Dorothy and I have raised our five children, of course parents are involved in it,” he said.

Four of McAuliffe’s five children attended private school.

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GOP Senator Demands To Know Biden’s Carbon Footprint For Trip To Climate Summit

GOP Senator Demands To Know Biden’s Carbon Footprint For Trip To Climate Summit

Authored by Steve Watson via Summit News,

Senate Energy and Natural Resources Committee Ranking Member John Barrasso has called for detailed information on the carbon footprint of Joe Biden’s trip to the COP climate Summit in Scotland, labelling it “bloated” and “counterproductive”.

Barrasso wrote to several Biden officials Monday, requesting information on how many staff are attending the conference and what that translates to in terms of carbon emissions.

“In addition to the staggering cost of the conference, I am concerned that what appears to be a bloated US delegation will prove counterproductive to the COP’s mission,” the Senator from Wyoming wrote.

He continued, ”These commitments strike a tone of insincerity as a majority of COP26 delegates will have contributed a significant amount of carbon emissions to attend COP26.”

Barrasso described it as “perplexing” that the summit wasn’t held virtually, given that everyone else in the world has had to conduct remote meetings during the pandemic.

“Executive branch departments and agencies are unnecessarily choosing to contribute directly to carbon emissions and risk exposure to COVID-19,” the Senator noted.

Barrasso also urged that “If [Biden’s staff] cannot go to work here in the U.S., they should not be permitted to attend extravagant conferences across the globe.”

As we noted yesterday, some FOUR HUNDRED private jets have landed ahead of the COP 26 summit.

Biden first traveled to Rome with his entourage which includes an 85 vehicle motorcade, before heading to Scotland.

Meanwhile…

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Tyler Durden
Tue, 11/02/2021 – 13:46

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The Due Process Problems With Enjoining Texas Clerks

The oral argument in Whole Woman’s Health v. Texas was a bit of a bait-and-switch. It became clear that the petitioner had backed off their claim that state court judges were proper defendants. Now, WWH, as well as the Solicitor General, pivoted to the clerks of court. This claim is problematic for many reasons.

As a threshold mater, this argument ignores the nuances of Texas law. Texas Rule of Civil Procedure 22 provides:

A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.

Texas SG Judd Stone explained:

I might point out, turning specifically to the assertions my friend on the other side has said regarding court clerks, that it’s actually not even clear that injunctive relief against a court clerk would give him what he wants because, under Texas Rule of Civil Procedure 22, a petition is deemed filed upon receipt by the clerk. So the clerk doesn’t have the opportunity to reject that petition. 

In other words, a complaint is filed without regard to the actions of the clerk. Before the clerk even realizes the complaint raises a claim under S.B. 8, the civil suit was already commenced! I’m sure the former civil procedure professors on the bench can take judicial notice of this rule.

Moreover, even if the clerk cannot docket a complaint, the presiding judge can do so. Justice Alito raised this point during argument:

JUSTICE ALITO: What if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don’t want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I’ll docket it myself? Then what?

Beyond this practical problem, there are several due process issues.

This remedy would be significantly overbroad. What if a Plaintiff filed a complaint that raised several causes of action, only one of which was S.B. 8? Under the proposed remedy, the clerk would have to bounce the entire complaint. I don’t think a clerk, a mere ministerial employee, has the power to redact a complaint. Moreover, if the various claims formed the basis of subject matter jurisdiction–for example, satisfying an amount-in-controversy requirement–knocking out one claim would deprive the court of subject matter jurisdiction. Or what if the complaint was filed right before the statute of limitations ran? Now, the claim would be precluded. This remedy would lock the courthouse door to entirely lawful claims.

Finally, this remedy presumes that S.B. 8 is unconstitutional in all regards. The lawyer for WHH said S.B. 8 is “patently unconstitutional.” And he said, under WWH, Courts are not to perform any severability analysis. The entire law must go! This argument is fundamentally flawed.  And courts must perform severability; the failure to do so in WWH was one of Justice Breyer’s weakest moments. Apparently, the requirement to install smoke detectors in abortion clinics imposes an undue burden on abortion. Once again, Justice O’Connor’s adage was apt: “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Add severability doctrine to that list.

Additionally, there are applications of the law that are potentially constitutional. For example, it isn’t clear that insurance companies have a constitutional right to fund abortion. Third-party doctrine has not been stretched that far. Maybe the answer is yes. Maybe the answer is no. But the courts can sort out that issue. Jonathan Mitchell represents intervenors who plan to test the boundaries of this claim. He raised this argument during arguments:

The intervenors intend to sue those who violate Senate Bill 8 but only in response to conduct that falls outside the protections of Roe and Casey. The United States cannot seek or obtain relief that thwarts the enforcement of S.B. 8 in those situations. The statute contains emphatic severability and saving construction requirements, and courts are obligated to preserve the constitutional applications of statutes to the maximum possible extent. 

The United States also cannot seek or obtain relief that would prevent private individuals from suing under S.B. 8, because any such relief would be a flagrant violation of the Due Process Clause. A federal court cannot ban private individuals from petitioning the courts in a case to which they have not been made a party. And a federal court cannot foreclose those individuals from suing under S.B. 8 when they have been given no opportunity to defend the merits of the lawsuit that they intend to bring. 

An overbroad injunction would prevent all of these plaintiffs from litigating their interests in court. This remedy would deprive countless plaintiffs of access to the courts. Abortion clinics are not the only entities in our polity with due process rights.

At bottom, the “clerk” argument sounds in judicial supremacy. There must be someone to sue, so we’ll enjoin the hapless clerk. Wrong. There are no “loopholes” or “chinks” in federal law. The law either permits a suit, or it doesn’t. And if the law is flawed, then Congress can make a change. A penalty is not a tax. A state exchange is not a federal exchange. Not every right has a remedy. Remember, Marbury was dismissed for a lack of jurisdiction. Even John Marshall understood that maxim.

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Anyone But Joe: 44% Of Democrats Want To Replace Biden On 2024 Ticket

Anyone But Joe: 44% Of Democrats Want To Replace Biden On 2024 Ticket

A new poll from NPR-PBS NewsHour-Marist reveals that 44% of Democrats and Democratic-leaning independents want anyone other than Joe Biden as their nominee in the next US presidential election.

Of the remainder, 36% want to stick with Biden, while another 20% are undecided.

As NPR puts it, “That is not a good starting place for a president who might seek reelection.”

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And while many Democrats want anyone but Biden, Republicans and Republican-leaning independents polled (50%) are largely behind former President Trump ans their nominee vs. someone else (35%).

Democrats are losing ground in general according to the poll, which found an 8-point drop on who Americans would rather see in charge of Congress (52% in September vs. 44% now). 41% of those polled would prefer to see Republicans in Congress.

Worth noting that the poll sampled 31% Democrats, 27% Republicans and 40% independents.

The findings are not a good sign for Biden, whose entire pitch in the 2020 Democratic presidential primary was the most electable candidate vs. Trump. As The Hill notes, however, things haven’t exactly been smooth sailing.

But Biden has had a tough few months in office. After early successes in curbing the COVID-19 pandemic, the country saw a surge in new infections over the summer driven by the more-contagious delta variant. Biden also faced criticism for the chaotic withdrawal of U.S. troops from Afghanistan in August.

Since then, his approval rating has plummeted. The Marist poll released on Monday shows that 44 percent of registered voters approve of the job he’s doing in the Oval Office, while 49 percent disapprove.

Biden’s party is also facing waning political fortunes ahead of the 2022 midterm elections, according to the Marist poll. 

Meanwhile, Congressional Democrats have to defend razor-thin majorities in the House and the Senate – with Republicans needing to net only five seats in the House and one in the Senate to regain control of Congress. 

Tyler Durden
Tue, 11/02/2021 – 13:25

via ZeroHedge News https://ift.tt/3EF0rHL Tyler Durden

The Due Process Problems With Enjoining Texas Clerks

The oral argument in Whole Woman’s Health v. Texas was a bit of a bait-and-switch. It became clear that the petitioner had backed off their claim that state court judges were proper defendants. Now, WWH, as well as the Solicitor General, pivoted to the clerks of court. This claim is problematic for many reasons.

As a threshold mater, this argument ignores the nuances of Texas law. Texas Rule of Civil Procedure 22 provides:

A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.

Texas SG Judd Stone explained:

I might point out, turning specifically to the assertions my friend on the other side has said regarding court clerks, that it’s actually not even clear that injunctive relief against a court clerk would give him what he wants because, under Texas Rule of Civil Procedure 22, a petition is deemed filed upon receipt by the clerk. So the clerk doesn’t have the opportunity to reject that petition. 

In other words, a complaint is filed without regard to the actions of the clerk. Before the clerk even realizes the complaint raises a claim under S.B. 8, the civil suit was already commenced! I’m sure the former civil procedure professors on the bench can take judicial notice of this rule.

Moreover, even if the clerk cannot docket a complaint, the presiding judge can do so. Justice Alito raised this point during argument:

JUSTICE ALITO: What if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don’t want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I’ll docket it myself? Then what?

Beyond this practical problem, there are several due process issues.

This remedy would be significantly overbroad. What if a Plaintiff filed a complaint that raised several causes of action, only one of which was S.B. 8? Under the proposed remedy, the clerk would have to bounce the entire complaint. I don’t think a clerk, a mere ministerial employee, has the power to redact a complaint. Moreover, if the various claims formed the basis of subject matter jurisdiction–for example, satisfying an amount-in-controversy requirement–knocking out one claim would deprive the court of subject matter jurisdiction. Or what if the complaint was filed right before the statute of limitations ran? Now, the claim would be precluded. This remedy would lock the courthouse door to entirely lawful claims.

Finally, this remedy presumes that S.B. 8 is unconstitutional in all regards. The lawyer for WHH said S.B. 8 is “patently unconstitutional.” And he said, under WWH, Courts are not to perform any severability analysis. The entire law must go! This argument is fundamentally flawed.  And courts must perform severability; the failure to do so in WWH was one of Justice Breyer’s weakest moments. Apparently, the requirement to install smoke detectors in abortion clinics imposes an undue burden on abortion. Once again, Justice O’Connor’s adage was apt: “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Add severability doctrine to that list.

Additionally, there are applications of the law that are potentially constitutional. For example, it isn’t clear that insurance companies have a constitutional right to fund abortion. Third-party doctrine has not been stretched that far. Maybe the answer is yes. Maybe the answer is no. But the courts can sort out that issue. Jonathan Mitchell represents intervenors who plan to test the boundaries of this claim. He raised this argument during arguments:

The intervenors intend to sue those who violate Senate Bill 8 but only in response to conduct that falls outside the protections of Roe and Casey. The United States cannot seek or obtain relief that thwarts the enforcement of S.B. 8 in those situations. The statute contains emphatic severability and saving construction requirements, and courts are obligated to preserve the constitutional applications of statutes to the maximum possible extent. 

The United States also cannot seek or obtain relief that would prevent private individuals from suing under S.B. 8, because any such relief would be a flagrant violation of the Due Process Clause. A federal court cannot ban private individuals from petitioning the courts in a case to which they have not been made a party. And a federal court cannot foreclose those individuals from suing under S.B. 8 when they have been given no opportunity to defend the merits of the lawsuit that they intend to bring. 

An overbroad injunction would prevent all of these plaintiffs from litigating their interests in court. This remedy would deprive countless plaintiffs of access to the courts. Abortion clinics are not the only entities in our polity with due process rights.

At bottom, the “clerk” argument sounds in judicial supremacy. There must be someone to sue, so we’ll enjoin the hapless clerk. Wrong. There are no “loopholes” or “chinks” in federal law. The law either permits a suit, or it doesn’t. And if the law is flawed, then Congress can make a change. A penalty is not a tax. A state exchange is not a federal exchange. Not every right has a remedy. Remember, Marbury was dismissed for a lack of jurisdiction. Even John Marshall understood that maxim.

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Mike Rowe: Today’s Skilled Labor Shortage Is No Surprise

Mike Rowe: Today’s Skilled Labor Shortage Is No Surprise

Authored by Gwendolyn Sims via PJMedia.com,

If anyone could rightfully say, “I told ya so” when it comes to the sad state of America’s workforce, it’s Mike Rowe, host of the hit TV series “Dirty Jobs.”

Thirteen years ago, his mikeroweWORKS Foundation began a campaign to bring awareness about the 2.3 million skilled jobs that were open across the country. “Today, that number is approaching 11 million,” said Rowe on Facebook. “Of note — most of those open jobs do not require a four-year degree; they require training.”

“I am not surprised by today’s headlines, or by what’s happened to our workforce,” he said.

“I’m not surprised that many of America’s critical industries are still struggling to fill millions of skilled positions. I am not surprised that millions of parents and corporations still believe a four-year degree is the best path for the most people. I’m not surprised that student loans now eclipse $1.7 trillion. And I’m not surprised that airlines are canceling flights right and left.”

What really surprises Rowe is why anyone is surprised at all.

How could anyone be surprised that after “we told an entire generation that they had no hope of succeeding without a college degree,” we’d end up with $1.7 trillion in student debt and tuition so exorbitantly expensive “when the government encourages everyone to borrow whatever it costs to get a diploma—and then forgives the debt?” asked Rowe. I’m certainly not surprised, but no one made students sign those loan papers.

How could anyone be surprised there’s a shortage of pilots or other skilled airport workers after an untold number have refused the vaccine mandate?

“We can discuss the wisdom or the foolishness of complying, but how can anyone be surprised that millions of workers in many critical industries have resisted the Biden mandate?” he said.

How can we be surprised by the nearly 11 million open jobs and labor shortage when there’s a massive skills gap and has been for years?

“It’s a reflection of what we value. Unfortunately, many Americans don’t value skilled labor,” Rowe said.

“If you’re not grateful to the people who bring you affordable energy, plentiful food, smooth roads, heating, air-conditioning, steel production, or indoor plumbing, you probably won’t encourage your kids to explore careers in those fields. So why then, would anyone be surprised, when millions of people choose to accept money from the government, instead of exploring ways to get the training they need to fill any of those open positions?”

You also probably aren’t likely to teach your kids the value of real honest-to-goodness physical work either.

While Rowe says he can’t foretell the future, he’s afraid “things must sometimes go ‘splat’ before the masses wake up.”

In the case of America’s workforce, he’s not certain what “splat” will look like, but if he were to guess, he said “it will involve a serious spike in the cost of food, energy, and construction; a lot of packages are not going to be delivered on time.”

The skilled labor shortage, like airline travel, he guessed will most likely “get worse before it gets better.”

Be sure to allow extra time, my fellow Americans, and encourage your kids and grandkids to gain a valuable skill instead of worthless student debt.

Tyler Durden
Tue, 11/02/2021 – 13:11

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They’re “Foaming At The Mouth” – Nomura Raises Red-Flag At “Clown-Car” That Is Equities

They’re “Foaming At The Mouth” – Nomura Raises Red-Flag At “Clown-Car” That Is Equities

“Retail bravado is again spreading, as $$$ is being made and is emboldening further risk-taking,” warns Nomura’s Charlie McElligott in his latest note, adding that TSLA’s “weaponized Gamma” impact on markets seems to have reinvigorated the Reddit army.

Retail Call Buying: We saw outsized call volumes in a few familiar names on Monday including TSLA (1.54M calls), AMC (400k calls), SOFI (384k calls), BKKT (372k calls), PLTR (306k calls), FCEL (280k calls), LCD (385k calls), FUBO (167k calls), GME (154k calls), QS (127k calls), WISH (156k calls), XPEV (117k calls), CHPT (116k calls), KMIA (79k calls), RKT (79k calls), RKY (79k calls), FSR (78k calls), MVIS (72k calls), BLNK (61k calls), VUZI (58k calls), RIG (55k calls)

But the “clown car” that is equities shows no signs of stopping yet as it continues to be fully-immersed back in a “(Max) Long Gamma, Long Delta” US Index options regime that will make it almost impossible for us to pull-back on the powerfully resumption of large options selling / overwriting, likely until monthly Op-Ex cycle’s “Gamma unclench à Delta de-risk” set-up

That said, the Nomura strategist warns traders not to just assume IWM is the pure play on ‘cyclical value’ stuff:

…as a client points out to me this morning, this “cheap IWM vols / upside grab” just so happens to also be yet-another expression of “foaming at the mouth” Reddit WSB Robinhood YOLOers too, as HILARIOUSLY, the largest holding nowadays in Russell 2000 / IWM just happens to be meme stock legend AMC

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Switching to bond-land, McElligott notes that it sure has looked like those who were “trapped” in short-Vega positions have been out grabbing VERY large downside (puts and put spreads) in 0EF, 0EH, 2EZ and 3EZ in recent days, as they desperately tried to get some Gamma back…

However, McElligott suggest that we are finally seeing the upper left side softening both in USD- and especially come in hard in EUR- vols, so it seems the worst of the stop-outs are cleared, which is somewhat confirmed by the relative ‘normalization of bond vol relative to equity vol…

So what could reverse these trends?

1) CB’s this week could push-back on mkt implied hikes (exacerbated by stop-outs last week, btw) with more “dovish-y / less hawkish” commentary this week (a la RBA overnight) which stops the beatdown in front-end…

while 2) inflation stays sticky and even accelerates into Nov and Dec prints (for example, US OER still not backing-down, Used Autos reaccelerating + Supply-Chain bottlenecks persisting through Holiday season),

while also too 3) seeing markets add-back long-end risk prem as Taper is potentially accelerated and QE wraps-up.

And as far as the equity melt-up goes, McElligott warns that:

we are now in an area where as that said “target volatility” strat Equities exposures has been rebuilt, we are now LOSING that systematic “buying” tailwind again in coming weeks, meaning that for CTAs, signals are already “+100% Long,” while for Vol Contol, there is a negligible potential amount to buy from here without further precipitous drops in rVol.

His parting thought is simple – caveat emptor.

Tyler Durden
Tue, 11/02/2021 – 12:47

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Federal Judge Blocks Hospital From Putting Unvaccinated Workers On Unpaid Leave

Federal Judge Blocks Hospital From Putting Unvaccinated Workers On Unpaid Leave

Authored by Jack Phillips via The Epoch Times,

A federal judge temporarily blocked an Illinois hospital system from allegedly putting workers with religious exemptions on unpaid leave.

In late October, several employees at the Chicago-area NorthShore filed a legal complaint against the company, arguing that the firm’s vaccine mandate discriminated against them by forcing them to decide between a vaccine and their jobs.

Liberty Counsel, which is representing the 14 health care workers, said in an emailed statement last week that the “plaintiffs have shared these religious beliefs, and others, with NorthShore, and have asked NorthShore for exemption and reasonable accommodation for these beliefs, but NorthShore has unlawfully and callously refused.”

U.S. District Judge John Kness on Friday issued a temporary restraining order against the hospital system.

“They can’t be fired and they can’t be placed on what is effectively, in my mind, unpaid leave,” Kness said during a hearing on the lawsuit, reported the Chicago Tribune.

NorthShore is “going to have to keep paying them. If you wish to require them to show up to work and use [personal protective equipment] and go through testing because you need the help and you don’t want to pay them to be off site, that’s up to the hospital,” he added.

Liberty Counsel said that more than a week ago, “NorthShore had already started purging those employees with sincere religious objections to its ‘Mandatory COVID-19 Vaccination Policy’” and removed many employees with religious exemptions from its November work schedule. That included staff members with appeals that were pending, Liberty Counsel said.

Federal Equal Employment Opportunity Commission guidelines say that employees may ask to be exempted from vaccine requirements due to religious or medical reasons. However, workplaces do not necessarily have to grant the exemptions under certain circumstances, the agency’s guidance adds.

Horatio Mihet, a lawyer representing the plaintiffs, told the Chicago Tribune that unvaccinated workers can still work there while wearing personal protective equipment and getting weekly testing.

NorthShore previously told The Epoch Times that it understands “that getting vaccinated may be a difficult decision for some of our team members” and values “their committed service and respect their beliefs.” On Monday, NorthShore didn’t immediately respond to a request for comment.

“We must prioritize the safety of our patients and team members in support of our broader mission,” the hospital system said.

NorthShore, in a statement to local media last week, disputed several claims in the lawsuit and had “considered each request based on multiple criteria” on exemptions.

Tyler Durden
Tue, 11/02/2021 – 12:27

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Four Roads to a Texas Injunction

Let’s take a legal realist approach for a minute.

I don’t necessarily disagree with any of Steve’s legal analysis of the Texas lawsuits (although I am still on the fence about the US suit myself). But it does seem likely from oral argument that a majority of the Court does. As I read my tea, five or six justices are strongly inclined to authorize some kind of lawsuit that can get some kind of relief against the enforcement of the law.

But it is not clear on what basis. Precisely because of how the law was designed to work around existing doctrine, every path to an injunction will require doing something a little odd. As I listened to the argument, I counted four paths being seriously mapped out:

  1. Say that private plaintiffs can get an injunction against state judges and/or state clerks, not withstanding dicta in Ex Parte Young and notwithstanding the seeming neutrality of what the judges and clerks are doing so far.
  2. Say that the private plaintiffs can instead get an injunction against the Texas Attorney General, naming him as the defendant under Ex Parte Young, under the fiction that he has something to do with the private plaintiffs who can sue under the act, even though he doesn’t. (This seemed to be Justice Kagan’s favored approach.)
  3. Say that the United States has a cause of action notwithstanding the limits of In re Debs, and that Texas is the proper defendant in such a suit notwithstanding the puzzles about how an injunction can operate against an abstract sovereign entity (some of which seem to re-open questions 1 or 2).
  4. Mumble, mumble. Say something like: In an ordinary tort case, of course you would have to go through the state courts. But this is not an ordinary case for 6-9 reasons, which will be listed but not fully explained. (This seems to be Justice Breyer’s approach.) I’m still not totally certain what relief would actually issue after the reasons are recited.

(These are not the only possibilities. I could also imagine the Court instead encouraging a collusive suit, or writing a Marbury-style advisory opinion that simultaneously affirmed but announced the unconstitutionality of the law, or homing on the Fifth Circuit’s dubious assumption of interlocutory jurisdiction over part of the case. But if any of those are on the table, we didn’t see them.)

Again, even if we assume that the Court knows what destination it wants to reach, it still has to pick a path. And it seems to me that each path has advantages and disadvantages, each skirting a different fence that might have been erected for a reason.

As a matter of legal doctrine, 3 is probably the least weak argument, in part because there is so little precedent in sovereign-sovereign suits. On the other hand, some justices seemed especially nervous about 3 because it seemed so unusual, which it is. If you instead focus on “seeming normal,” then 2 or even 1 might be a better path — we are all used to Ex Parte Young suits, so even if it is doctrinally chancier, expanding Ex Parte Young may seem less weird than allowing a sovereign suit. Or if the goal is just to do as little damage to the existing doctrine as possible, 4 recommends itself, since the opinion could as good as say “don’t try this at home, we’re just doing this to ensure that we can maintain judicial supremacy.”

I’m not saying I endorse results-first decision making, or judicial supremacy for that matter. But even for those who do, there are going to be some interesting questions about how to get there.

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Four Roads to a Texas Injunction

Let’s take a legal realist approach for a minute.

I don’t necessarily disagree with any of Steve’s legal analysis of the Texas lawsuits (although I am still on the fence about the US suit myself). But it does seem likely from oral argument that a majority of the Court does. As I read my tea, five or six justices are strongly inclined to authorize some kind of lawsuit that can get some kind of relief against the enforcement of the law.

But it is not clear on what basis. Precisely because of how the law was designed to work around existing doctrine, every path to an injunction will require doing something a little odd. As I listened to the argument, I counted four paths being seriously mapped out:

  1. Say that private plaintiffs can get an injunction against state judges and/or state clerks, not withstanding dicta in Ex Parte Young and notwithstanding the seeming neutrality of what the judges and clerks are doing so far.
  2. Say that the private plaintiffs can instead get an injunction against the Texas Attorney General, naming him as the defendant under Ex Parte Young, under the fiction that he has something to do with the private plaintiffs who can sue under the act, even though he doesn’t. (This seemed to be Justice Kagan’s favored approach.)
  3. Say that the United States has a cause of action notwithstanding the limits of In re Debs, and that Texas is the proper defendant in such a suit notwithstanding the puzzles about how an injunction can operate against an abstract sovereign entity (some of which seem to re-open questions 1 or 2).
  4. Mumble, mumble. Say something like: In an ordinary tort case, of course you would have to go through the state courts. But this is not an ordinary case for 6-9 reasons, which will be listed but not fully explained. (This seems to be Justice Breyer’s approach.) I’m still not totally certain what relief would actually issue after the reasons are recited.

(These are not the only possibilities. I could also imagine the Court instead encouraging a collusive suit, or writing a Marbury-style advisory opinion that simultaneously affirmed but announced the unconstitutionality of the law, or homing on the Fifth Circuit’s dubious assumption of interlocutory jurisdiction over part of the case. But if any of those are on the table, we didn’t see them.)

Again, even if we assume that the Court knows what destination it wants to reach, it still has to pick a path. And it seems to me that each path has advantages and disadvantages, each skirting a different fence that might have been erected for a reason.

As a matter of legal doctrine, 3 is probably the least weak argument, in part because there is so little precedent in sovereign-sovereign suits. On the other hand, some justices seemed especially nervous about 3 because it seemed so unusual, which it is. If you instead focus on “seeming normal,” then 2 or even 1 might be a better path — we are all used to Ex Parte Young suits, so even if it is doctrinally chancier, expanding Ex Parte Young may seem less weird than allowing a sovereign suit. Or if the goal is just to do as little damage to the existing doctrine as possible, 4 recommends itself, since the opinion could as good as say “don’t try this at home, we’re just doing this to ensure that we can maintain judicial supremacy.”

I’m not saying I endorse results-first decision making, or judicial supremacy for that matter. But even for those who do, there are going to be some interesting questions about how to get there.

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