Originally Posted by
LittleFuzzy
No one is really SURE if the "novel implementation" Texas came up with is unconstitutional. The legal theorists are in the process of working that out as a practical matter I mentioned in post #63 that it may be the case that it doesn't run afoul of any constitutional barriers as a general process. It would still be unconstitutional HERE because there is nonetheless a branch of government involved in enforcing it (the courts) and so general prohibitions against state action should still apply even if that particular branch isn't normally one that runs afoul of the prohibitions. Anyone's guess whether THIS court will actually uphold that claim the way it ought to though. Even if it did choose to, the fact that SCOTUS has a novel application to consider might mean they'd want to wait until the appellate theorists come up with a workable approach to the general process.
Texas does not need to enforce any law they create. All states have "dead laws" they aren't enforcing (usually they did enforce them at one point but not necessarily). Texas is free to pass a law where they say that as far as the Great State of Texas is concerned life starts at conception and abortion-providers are a bunch of no-goodnik baby-kiillers. The government and its organs are not particularly constrained in their speech anymore than we are. It is their ACTIONS which are constrained. They can't use state power to prohibit, compel, or force without a rational basis. If the state truly was not enforcing this law, there'd be no effective challenge. But the state IS involved in its enforcement. It just put enforcement in the court's hands arbitrating private litigation. The current Court may seize on that to make new jurisprudence effectively removing the courts from the constraints of other branches operating under the Constitution, at least wrt abortion. They shouldn't but as I said, there's conceivably a majority for overturning Roe entirely so who knows. But there is no vigilantism here. The courts are passing judgement and all matters are being done with due recourse to the law.
The Court isn't STUCK in procedural limbo and I personally think the novel process isn't why they're delaying. I think they're delaying because they needed more time to come up with rulings that a majority can sign off on. They definitely don't want whatever decision they make here to be another Furmam v Georgia, riddled with separate opinions, partial concurrences and dissents, etc. If a refusal to make original laws and testing to deal with the novel process were involved, though, you are misunderstanding the issues.
Reply With Quote