Key Overlooked Principle in SCOTUS’ Ruling on Texas Abortion Law
Sep 10, 2021 by David Fowler
After further review and counsel, it seems the primary purpose of Texas’ new abortion law is to prevent abortions until the U.S. Supreme Court can decide, come next June, whether to affirm, reverse, or modify its abortion jurisprudence of the last 48 years. But the Court’s temporary decision not to block enforcement of the law contains a hidden constitutional gem that, if laid hold of by state officials, could restore constitutional government in our country.
As I will explain, we are no longer governed by a written constitution but by essays written by a majority, sometimes only a plurality, of the nine Justices on the Supreme Court explaining why they decided to interpret the Constitution in favor of one litigant and against another.
If that sounds like mumbo jumbo, then let me tell you what a majority of the justices wrote in refusing to prevent the Texas law from going into effect, and then I will explain what I said:
The point to be made is this: A federal court’s only constitutional authority (in cases involving the Constitution) is to decide whether the Constitution permits or prohibits a person who is administering, enforcing, or relying on a law from doing so. This means two things.
Courts can only apply the law that is already made, in this case, the Texas abortion law and the U.S. Constitution, to resolve a dispute between particular parties.
A federal court has no constitutional authority to extend a remedy, expressed by a judgment in favor of one or more parties in the courtroom, to others who are not before the court.
In other words, if a federal court’s judgment were to apply to all persons in a state or nation, not just the parties involved in the lawsuit, then its resolution of the dispute would no longer have the character or nature of a judgment, but that of a law. Only laws apply to all persons. This is what is meant when someone says, “Courts can’t make law.”
Yet, when the Supreme Court enters a judgment against an official in Ohio who, for example, administers that state’s abortion or marriage licensing statutes, officials in 49 other states all acquiesce as if the judgment is a law applicable to them. Constitutionally, it cannot be law applicable to those in the other 49 states.
And this relates to the second part of what the Supreme Court said in the statement quoted above.
The accurate answer is nothing. A court cannot strike down, repeal, or modify any enacted statute. The law is still there, as enacted, until the lawmaking body, the legislature, changes it.
In fact, the individual against whom a judgment is entered in favor of Person A, ordering the individual not to enforce, administer, or rely on the law with respect to A, can proceed as before with respect to all persons other than A. Why? Because the judgment in favor of A is not a law. Therefore, the court’s judgment cannot lawfully or constitutionally stop the individual from enforcing, administering, or relying on the same law to all other persons.
Those who say I’m nuts would call Madison, Hamilton, Jefferson, Lincoln, and others nuts too, along with several highly esteemed professors of law and government teaching today. Moreover, my view is now backed by five Supreme Court justices.
The reason some would think me nuts is that we have forgotten that each branch of government is independent of the other in its understanding, interpretation, and application of the Constitution, and that the same is true of each of the 49 sovereign state governments with respect to federal court judgments against officials in one of their sister states.
The Supremacy Clause says the Constitution is the supreme law, but court judgments and essays explaining those judgments are not law so they cannot constitute the supreme law.
The answer is two-fold. The first is that a governor may assume (wrongly) that a judgment against another governor on a similar law binds him or her too. It does not and cannot. I don’t know if Governor Lee knows this or not, but I hope he does.
Second, a governor may think it prudent to discontinue enforcing, administering, or relying on a state law when, for example, he or she thinks the reasons for the judgment against another state’s governor and that state’s similar law are sound. If he or she has no better or different argument to make than that made by the other state’s governor and rejected, then continuing to enforce the law, as enacted, will result in a lawsuit that will likely be lost.
However, if that is what the governor in the other state chooses to do, then he or she can do nothing until the legislature changes the law; the governor cannot change the law to “make” it constitutional.
On the other hand, if a court’s analysis is specious, poorly reasoned, or disregarded to a key precedent or other constitutional provision, then a governor in another state should continue with the state’s law, let opponents sue, and defend the law using the better argument.
Unfortunately, today elected officials around the country fall flat on their backs in defeat, no matter how ludicrous the Supreme Court’s analysis is, particularly if the Court was addressing a controversial social issue. This is why I said we are no longer ruled by our Constitution, but by the Supreme Court.
Our constitutional mess will not be cleared up if elected officials continue to cede power to federal courts that those courts do not have.
In the Texas decision, the Supreme Court reminded state officials of the constitutional limits of its powers. But we need state officials willing to stand up for and defend the laws made on our behalf when a prior Supreme Court decision against another state is poorly reasoned or overlooks key constitutional principles. Roe v. Wade (abortion) and Obergefell v. Hodges (same-sex marriage) are two prime examples.
Will Tennessee’s officials have the courage to do what is needed?
We will find out beginning in January when our state officials are presented with marriage legislation that the U.S. Supreme Court did not consider in Obergefell v. Hodges. Will they be willing to point out to the federal court system the errors and limitations in the poorly reasoned essay penned in Obergefell?
Stay tuned. I will let you know.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
As I will explain, we are no longer governed by a written constitution but by essays written by a majority, sometimes only a plurality, of the nine Justices on the Supreme Court explaining why they decided to interpret the Constitution in favor of one litigant and against another.
If that sounds like mumbo jumbo, then let me tell you what a majority of the justices wrote in refusing to prevent the Texas law from going into effect, and then I will explain what I said:
[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. (emphasis supplied)
What this means in general
The point to be made is this: A federal court’s only constitutional authority (in cases involving the Constitution) is to decide whether the Constitution permits or prohibits a person who is administering, enforcing, or relying on a law from doing so. This means two things.
Application No. 1 – What do court’s do?
Courts can only apply the law that is already made, in this case, the Texas abortion law and the U.S. Constitution, to resolve a dispute between particular parties.
A federal court has no constitutional authority to extend a remedy, expressed by a judgment in favor of one or more parties in the courtroom, to others who are not before the court.
In other words, if a federal court’s judgment were to apply to all persons in a state or nation, not just the parties involved in the lawsuit, then its resolution of the dispute would no longer have the character or nature of a judgment, but that of a law. Only laws apply to all persons. This is what is meant when someone says, “Courts can’t make law.”
Yet, when the Supreme Court enters a judgment against an official in Ohio who, for example, administers that state’s abortion or marriage licensing statutes, officials in 49 other states all acquiesce as if the judgment is a law applicable to them. Constitutionally, it cannot be law applicable to those in the other 49 states.
And this relates to the second part of what the Supreme Court said in the statement quoted above.
Application No. 2 - What is the effect of a SCOTUS judgment on a law?
The accurate answer is nothing. A court cannot strike down, repeal, or modify any enacted statute. The law is still there, as enacted, until the lawmaking body, the legislature, changes it.
In fact, the individual against whom a judgment is entered in favor of Person A, ordering the individual not to enforce, administer, or rely on the law with respect to A, can proceed as before with respect to all persons other than A. Why? Because the judgment in favor of A is not a law. Therefore, the court’s judgment cannot lawfully or constitutionally stop the individual from enforcing, administering, or relying on the same law to all other persons.
Fowler, You Are Nuts!
Those who say I’m nuts would call Madison, Hamilton, Jefferson, Lincoln, and others nuts too, along with several highly esteemed professors of law and government teaching today. Moreover, my view is now backed by five Supreme Court justices.
The reason some would think me nuts is that we have forgotten that each branch of government is independent of the other in its understanding, interpretation, and application of the Constitution, and that the same is true of each of the 49 sovereign state governments with respect to federal court judgments against officials in one of their sister states.
The Supremacy Clause says the Constitution is the supreme law, but court judgments and essays explaining those judgments are not law so they cannot constitute the supreme law.
Then why does one state ‘obey’’ a SCOTUS ruling against a different state?
The answer is two-fold. The first is that a governor may assume (wrongly) that a judgment against another governor on a similar law binds him or her too. It does not and cannot. I don’t know if Governor Lee knows this or not, but I hope he does.
Second, a governor may think it prudent to discontinue enforcing, administering, or relying on a state law when, for example, he or she thinks the reasons for the judgment against another state’s governor and that state’s similar law are sound. If he or she has no better or different argument to make than that made by the other state’s governor and rejected, then continuing to enforce the law, as enacted, will result in a lawsuit that will likely be lost.
However, if that is what the governor in the other state chooses to do, then he or she can do nothing until the legislature changes the law; the governor cannot change the law to “make” it constitutional.
On the other hand, if a court’s analysis is specious, poorly reasoned, or disregarded to a key precedent or other constitutional provision, then a governor in another state should continue with the state’s law, let opponents sue, and defend the law using the better argument.
Unfortunately, today elected officials around the country fall flat on their backs in defeat, no matter how ludicrous the Supreme Court’s analysis is, particularly if the Court was addressing a controversial social issue. This is why I said we are no longer ruled by our Constitution, but by the Supreme Court.
What is needed
Our constitutional mess will not be cleared up if elected officials continue to cede power to federal courts that those courts do not have.
In the Texas decision, the Supreme Court reminded state officials of the constitutional limits of its powers. But we need state officials willing to stand up for and defend the laws made on our behalf when a prior Supreme Court decision against another state is poorly reasoned or overlooks key constitutional principles. Roe v. Wade (abortion) and Obergefell v. Hodges (same-sex marriage) are two prime examples.
Will Tennessee’s officials have the courage to do what is needed?
We will find out beginning in January when our state officials are presented with marriage legislation that the U.S. Supreme Court did not consider in Obergefell v. Hodges. Will they be willing to point out to the federal court system the errors and limitations in the poorly reasoned essay penned in Obergefell?
Stay tuned. I will let you know.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
