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Pro-Life attorneys general brief maintains DOJ overstepped boundaries in challenging Texas Heartbeat Law; Biden DOJ asks Supreme Court to block enforcement

by | Oct 18, 2021

By Dave Andrusko

On Thursday, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit overturned Federal District Court’s Judge Robert Pitman preliminary injunction against the Texas Heartbeat Law and allowed the continued enforcement of the Texas law.

Prior to the third ruling in Texas’s favor, the Biden-Harris Department of Justice announced that it intends to ask the Supreme Court to vacate the stay. And it did so this morning.

Last week, just prior to the 5th District Court’s decision, Indiana’s Attorney General Todd Rokita led an 18-state effort to protect Texas’ pro-life law. He said the federal appeals court decision “bodes well” for other states’ efforts to defend their sovereign authority.

“This pro-life win for Texas is also a win for Indiana,” Attorney General Rokita said. “And here in Indiana, we will continue to vigorously defend state laws that protect the sanctity of unborn life and the health of pregnant women.”

In its amicus brief, Attorney General Rokita argues

The order below threatens to expose every State in the Union to suit by the federal government whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere. Critically, the district court enjoined everyone in the world from enforcing all of S.B. 8 not on the basis of any legal right the federal government itself holds, but on the ground the law violates the putative “Fourteenth Amendment substantive due process right[] to pre-viability abortions,” which is, of course, a “‘right of the individual.’” 

Rokita argues that 

this case does not permit, much less require, the Court to address S.B. 8, but instead presents a legal question of considerable significance for federalism and the separation of powers—whether the Attorney General has inherent authority to challenge state laws as violative of individual constitutional rights even absent congressional authorization. And every relevant precedential and historical authority points to the same conclusion: The Attorney General has no authority to act as a roving reviser of state law, challenging as unconstitutional any rule with which he disagrees. Congress has repeatedly refused to grant him such authority; this Court should refuse to do so as well. …

Allowing the Attorney General to seek invalidation of any legal rule he believes violates individuals’ constitutional rights would amount to “government by injunction,” a practice “anathematic to the American judicial tradition.”

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