America First Legal Files Opening Briefs Outlining Arguments at the Supreme Court in Defense of SB8, With Oral Argument Scheduled on Monday

Thursday, October 28, 2021

WASHINGTON, DC Last night, America First Legal (AFL) filed two briefs on behalf of its clients in cases pending before the Supreme Court of the United States involving the defense of SB8, the Texas Heartbeat Act. The cases will be argued before the Supreme Court on Monday, November 1st. 

The two cases are United States v. Texas and Whole Woman’s Health v. Jackson

AFL is proud to represent its clients in defense of the Texas Heartbeat Act, which has been challenged by abortion advocates and the United States Department of Justice. Although the cases have their differences, fundamentally, each involves an extraordinary assault on the State of Texas, AFL’s clients, and the rule of law. 

In the first brief—filed in United States v. Texas—America First Legal argued, among other things, that while the Biden Administration’s lawsuit complains about the alleged constitutional infirmities in SB 8, its own lawsuit violates the constitutional separation of powers. The Fourteenth Amendment empowers Congress to “enforce” its requirements “by appropriate legislation.” That means it is up to Congress—not the federal courts or the executive branch—to decide whether and to what extent lawsuits should be authorized against those who allegedly violate the Fourteenth Amendment.

Congress has never authorized the United States to sue a state whenever the party in power decides it does not like a given state action. The notion that the executive may unilaterally fix the “gaps” that it perceives in law by suing states is incompatible with the 14th Amendment’s decision to vest enforcement authority in Congress. Any “flaws” must be fixed by Congress, not by unilateral executive action.

In the second brief—filed in Whole Woman’s Health v. Jackson—America First Legal, among other things, took aim at “back door” efforts to prevent state courts from hearing lawsuits. A private right of action like the one at issue in the Texas Heartbeat Act—by its very definition—is enforced by the private individual who sues. It is not enforced by a state’s Attorney General, or by any other executive or administrative official. An “injunction” that restrains one of these officers from “enforcing” a private right of action is meaningless, because it does not alter the defendant’s behavior and does nothing to stop private lawsuits from being filed. 

The Supreme Court has made unmistakably clear that a federal court cannot enjoin a state court from hearing or adjudicating cases—no matter how unconstitutional the underlying statute may be:  

[T]he right to enjoin an individual, even though a state official, from commencing suits  . . . does not include the power to restrain a  court from acting in any case brought before it,  either of a civil or criminal nature. . . . [A]n injunction against a state court would be a violation of the whole scheme of our government. 

A judge will never violate the Constitution merely by adjudicating a dispute, so a court cannot restrain another court from hearing a case that is brought under an allegedly unconstitutional law.

America First Legal is proud to argue against the Biden Administration’s clear executive overreach in its challenge to the Texas Heartbeat Act. We will not stop fighting on behalf of the unborn, nor will we stop defending the constitutional rights of all Americans. 

Statement From America First Legal President Stephen Miller:

America First Legal is greatly honored to be appearing before the United States Supreme Court to defend the Texas Heartbeat Act. As co-counsel of record in these historic cases, AFL is both submitting these Supreme Court briefs on behalf of its clients, and appearing in oral arguments on Monday. AFL is committed to the protection of innocent life and the sacred rights of children,” Stephen Miller said.

Read the United States v. Texas brief here

Read the Whole Woman’s Health v. Jackson brief here.

To schedule an engagement with America First Legal, please email [email protected].