DOJ files baseless suit against Texas over its abortion law

DOJ files baseless suit against Texas over its abortion law


The Biden/Garland Justice Department has sued the state of Texas over its new anti-abortion law. You can read the complaint here.

Whatever one’s views of the Texas law, the DOJ’s suit is baseless. Its filing demonstrates that under Joe Biden and Merrick Garland, the DOJ has become a hyper-partisan, unprincipled, and lawless tool of the left.

The Department of Justice lacks authority to file any lawsuit unless a statute grants litigation authority to the Attorney General. The DOJ’s complaint cites no statute granting such authority.

None exists. Otherwise the DOJ would have cited it.

Merrick Garland may consider the Texas statute unconstitutional. He may be right. But he lacks the free-standing authority to challenge statutes he deems unconstitutional, no matter how much the Democrats’ leftist base clamors for him to do so.

Congress has enacted various statutes that authorize particular kinds of enforcement actions to remedy violations of the Constitution. E.g., 18 U.S.C. 242; 42 U.S.C. 2000c-6; 34 U.S.C. 12601. If the DOJ can bring a suit like this one, which is supported by no such statute, Congress wouldn’t have enacted these statutes because the DOJ already had authority to bring federal court litigation for any violation of the Constitution.

The DOJ’s lawsuit is abusive. It lacks a sound basis in the law.

I suspect that Garland understands this. I’m pretty sure he understands that the Fifth Circuit, full of Republican appointees, is highly unlikely to countenance the suit. If the case gets to the Supreme Court, the DOJ might get three votes, but it’s possible that only Justice Sotomayor will go along with its lawless position. The DOJ’s case is that weak.

Accordingly, the DOJ’s suit is best viewed as an attempt to appease the pro-abortion Democratic base. If/when it’s tossed, Biden and Garland can say that they at least tried to stick up for abortion rights in Texas, and blame conservative judges for demurring.

However, Rule 11 of the Federal Rules of Civil Procedure authorizes sanctions against parties that file lawsuits for “any improper purpose” and lawsuits that are not “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law .” In my view, the government’s suit against Texas is a good candidate for Rule 11 sanctions.

NOTE: The Wall Street Journal editors also consider the DOJ’s case abusive.



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