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The Administration of Abortion Laws—and More

We should be wary of an outsourced, passive-aggressive administrative state.
November 1, 2021
The Administration of Abortion Laws—and More
WASHINGTON, DC - OCTOBER 21: The Supreme Court is seen at sunset on Capitol Hill on October 21, 2021 in Washington, DC. Texas officials asked the Supreme Court on Thursday to not block the state's recent abortion law, which bans the procedure after six weeks or when a fetal heartbeat can be detected. (Photo by Anna Moneymaker/Getty Images)

The abortion case that the U.S. Supreme Court is hearing this morning isn’t actually about abortion.

To be sure, the case—really a pair of cases—involves abortion: specifically, Texas’s new law regulating abortion within the state. But where next month’s blockbuster Dobbs case puts the long-fought questions of Roe v. Wade front and center, today’s arguments are not about a claimed constitutional right to abortion.

Rather, this morning’s cases present much broader questions of how we administer laws in America. Chief Justice John Roberts recognized that in a short opinion last month, and he and his colleagues will grapple with those questions today—and for months and years to come.

In Whole Women’s Health v. Jackson and United States v. Texas, private litigants and the U.S. Department of Justice are challenging the Texas Heartbeat Act, a law enacted this year to prohibit abortion once a baby’s heartbeat can be detected. I described the law’s origins and its details in Commentary a few weeks ago, and highlighted what has proved to be the law’s most consequential feature: not its restriction against abortion but its restrictions against Texas officials actually enforcing the law.

The Heartbeat Act outsources its enforcement mechanism to the public, empowering individuals to file lawsuits against those who would provide or assist abortions. Successful plaintiffs would be eligible for bounty prizes of $10,000 and up.

Texas legislated this extraordinary enforcement mechanism in order to avoid the swift judicial review that normally greets new abortion regulations. Whenever Congress or a state legislature enacts an abortion law, pro-abortion litigants race to a strategically selected federal trial court, invoking two particularly nebulous bodies of case law: the “undue burden” standard governing abortion in the Roe era, and the mix of legal and equitable rules that govern trial courts’ power to preemptively freeze new laws for the duration of litigation. These two bodies of law combine to effectively guarantee that any new abortion regulation will be blocked immediately and, eventually, permanently.

But because the Constitution limits federal litigation to actual “cases” or “controversies,” federal case law also requires plaintiffs to name defendants who actually stand to enforce the challenged law. And that is the rule that Texas, in turn, has cleverly leveraged in the Heartbeat Act: By prohibiting state officers from actually enforcing the law, the act gives pro-abortion litigants no one to preemptively sue.

The initial challengers learned this the hard way, when the Supreme Court issued an order in September declining to preemptively freeze the Heartbeat Act. Following further litigation in the lower courts, including a subsequent Justice Department lawsuit challenging the act, the case now returns to the Court on an accelerated track, for full review of the question of whether federal courts have any power to enjoin a law that no one is actually enforcing.

Under existing law, the Supreme Court’s decision not to preemptively freeze the Texas Heartbeat Act was unsurprising and entirely justified. And so would be a decision, after today’s oral argument, dismissing the lawsuits altogether. Whatever the justices might think of Texas’s substantive restriction on abortion, the justices are a court of law, not a roving commission for constitutional commentary, and without a defendant to enforce the law there is no jurisdiction to hear the case.

Meanwhile, Texas succeeded in significantly decreasing abortion within the state, not directly but indirectly, even passive-aggressively. Texas is not enforcing its new abortion policy, but it knows that the policy is having at least some of its intended effect, through a fog of legal uncertainty.

And on that point, Chief Justice Roberts’s brief opinion from last month, when the Court declined to preemptively block the Heartbeat Act, bears close attention.

While stopping short of declaring the act unconstitutional, the Chief Justice would have temporarily frozen things in place while the lower courts handled the legislation. And his approach rested on the act’s sheer novelty: “The statutory scheme before the Court is not only unusual,” he wrote, “but unprecedented.”

That line might seem unremarkable to most of the Court’s observers, but it stood out clearly to those of us familiar with the Chief Justice’s opinions involving the administrative state. While Roberts is perhaps best known for his two opinions upholding the Obamacare’s enactment and enforcement, he has more quietly penned a series of opinions, both for majorities and in dissent, pressing back against the growth of “independent” agencies in the federal government. And in the two most prominent of these opinions, declaring unconstitutional two new federal agencies that Congress had created with unprecedented structures, the chief justice emphasized that the legislation’s sheer novelty was itself a warning sign of constitutional danger.

A decade ago, in Free Enterprise Fund v. Public Company Accounting Oversight Board, Roberts wrote the Court’s opinion nullifying part of the Sarbanes-Oxley Act, which had created a new regulatory board, with two layers of independence from presidential oversight. “Perhaps the most telling indication of the severe constitutional problem with the PCAOB,” Roberts wrote (quoting an opinion by Judge Brett Kavanaugh, then serving on the D.C. Circuit), “is the lack of historical precedent for this entity,” or indeed of “any historical analogues for this novel structure.”

Roberts repeated this point last year in Seila Law v. Consumer Financial Protection Bureau, where the Court similarly held unlawful the Dodd-Frank Act’s extraordinarily independent financial regulator. “Perhaps the most telling indication of a severe constitutional problem,” he emphasized, “is a lack of historical precedent to support it.” (Brackets and quotation marks omitted.) As he proceeded to catalogue the CFPB’s constitutional problems, he emphasized, “an agency with a structure like that of the CFPB is almost wholly unprecedented.”

This clearly is the chief justice’s instinct with respect to the administration of Texas’s new abortion law. He may not ultimately find the statute unconstitutional; to be clear, the federal constitutional provisions at issue in the PCAOB and CFPB cases are not directly relevant to Texas. But Roberts, so often skeptical of administrative power and the efforts by legislatures and administrators alike to insulate agencies from democratic accountability or judicial review, is similarly wary of Texas’s self-consciously tactical administrative novelty.

As it happens, Texas’s attempt to outsource administration is precisely the sort of thing that Roberts criticized, years ago, at least at the federal level. Congress has created various statutes empowering private litigants to enforce federal policy when the litigants themselves have no stake in the case other than the bounty they’re hunting. (Such lawsuits are known by the Latin term, “qui tam.”) In 1993, Roberts, then in private practice after having served in the Reagan and H.W. Bush administrations, wrote an article questioning whether such bounty-hunter enforcement schemes are consistent with the Constitution’s grant of executive power exclusively to the government’s executive branch. And in making this point, Roberts pointed to the Justice Department’s Office of Legal Counsel, which had recently published an opinion, signed by William Barr, extensively challenging the constitutionality of such bounty-hunter lawsuits.

And even while this aspect of federal constitutional law does not apply to Texas, the broader themes of administrative power and of the courts’ own powers may echo through today’s oral arguments. Throughout the Roberts Court era, the justices have scrutinized the efforts of administrative agencies to deter or avoid judicial review of regulatory policies.

Even among critics of Roe (like me), it is not hard to see how Texas’s novel administrative approach could be imitated by other regulators, on other policies. The National Firearms Policy Council, for example, filed an amicus brief warning the justices that to affirm Texas’s approach to abortion might inspire blue states to create similar bounty-hunter frameworks against gun ownership.

But subtler trends are already developing. We find ourselves in an era when regulators are getting ever more creative in their attempts to implement policies passive-aggressively rather than directly, raising fundamental questions about democratic accountability and judicial review.

For years, we have seen this most clearly in the debates over agency “guidance” documents. When administrative agencies issue guidance documents, they announce a policy yet declare the document to be nonbinding, in order to avoid either the notice-and-comment procedures or the possibility of judicial review (or both) that normally apply to substantive regulations. The agencies know well that such guidance documents, though nominally “nonbinding,” are often treated as effectively binding by the communities that they regulate. Like Texas in the Heartbeat Act, they know that they can implement policies not just directly but indirectly, not just actively but passively, by leveraging the incentives and risk aversions of the people they are trying to regulate.

We are beginning to see it in other ways, too, as federal regulators attempt to implement controversial policies indirectly, through private-sector intermediaries. The Biden administration’s climate policies, for example, will be implemented not just through direct actions of the EPA, but also through indirect efforts of financial regulators, leveraging immense discretionary powers over banks and other financial regulators to stifle flows of capital to carbon-emitting industries. If this regulatory approach succeeds, then the companies and people most affected by the policies may be unable to challenge the policies in court; the regulators will argue that the affected plaintiffs fail to show a direct causal connection between their alleged injuries and a specific action by the government.

We also see the beginnings of such passive-aggressive regulatory approaches in the debates surrounding big internet companies, where regulators’ threats of antitrust lawsuits might cajole the companies themselves into serving as private-sector enforcement of policies on, say, the spread of misinformation.

Of course, the Supreme Court’s oral arguments on the Heartbeat Act will not touch on any of these far-flung disputes. And it would be a mistake to connect these issues, and their disparate statutory and regulatory frameworks, too tightly. But when the justices consider whether the Texas Heartbeat Act actually affects people’s rights regardless of the lack of direct state enforcement, they will be grappling with aspects of the modern administrative state that are becoming ever more salient and significant.

Under existing law, there seems to be little the Court can or should do with respect to the Texas Heartbeat Act. But even if the Court reaches that correct conclusion, it is good for the justices to think seriously about how laws actually are administered today, how regulators leverage older legal doctrines, and how some of those doctrines might need to be recalibrated someday for the sake of democratic accountability and the rule of law in the modern administrative state.

Adam J. White

Adam J. White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.