I fully expected Merrick Garland, as attorney general, to back President Biden’s progressive policies. It is to be expected that the Justice Department will implement the president’s lawful policy objectives — e.g., shifting resources to prioritize civil-rights enforcement over border enforcement. That is not politicization. We may strenuously disagree with Democratic policy, but that is what elections are for. The winning side gets to implement its policies — as long as it does so within the bounds of the law.
The politicization of the Justice Department happens when it seeks to impose the president’s policies (or punish the president’s political opposition) by distorting the law. That is exactly what is happening with DOJ’s absurd lawsuit against the Texas fetal heartbeat law.
It is a shame to see Garland, who was a longtime judge on the prestigious D.C. Circuit federal appeals court, run roughshod over the law of standing — which is of crucial importance to the Justice Department — for no better reason than to boost the president’s political standing with progressives. Garland knows better.
It was just nine days ago that the Supreme Court rejected a challenge to the Texas law, which bans most abortions when a fetal heartbeat can be detected (usually at the six-week mark), because the plaintiff abortion providers lacked standing.
The Court reasoned that the providers had no suit. The existence of a case or controversy is the constitutional prerequisite for federal court jurisdiction. Because no state official has the authority to enforce the law, and no plaintiff has tried to enforce it by filing a suit against an abortionist, there is no case or controversy. Since nothing has yet happened, the Court held that there was no basis for a federal lawsuit challenging the law’s constitutionality.
Clearly, abortion providers are much more directly affected by the law than is the federal government. A provider who performs an abortion may be sued under the law. The Justice Department and federal government are in no such peril. Despite being in an even more remote posture than the providers, DOJ speculates that the law is chilling abortionists from providing services, and thus chilling women from seeking to exercise a federal right — namely, the abortion right woven out of whole cloth in Roe.
It is a meritless claim. Absent a concrete, non-speculative injury, a party has no standing to sue. The Justice Department has no such injury.
Moreover, were standing requirements to become lax, the biggest loser would be the federal government. By requiring an actual case, involving someone who has suffered real damages, before a federal court may properly intervene, our system ensures that issues of public importance are decided democratically — at the ballot box, and by elected officials who are accountable to voters.
Without standing rules, every public question would result in the filing of lawsuits by self-appointed interest groups, and the cases would be decided by the courts which are not democratically accountable. That is to say: Government policies would be most vulnerable to legal challenges by people who have not suffered injuries.
The Justice Department, then, is the last institution that ought to be arguing for the evisceration of standing. But this is abortion so, as ever, legal norms go out the window — not to achieve a result but just so Biden can preen that he’s on the “right side” and “doing something.”
The Texas law was ingeniously crafted to make it difficult to challenge before it went into effect. But let’s not pretend legal challenges are impossible — or even difficult — now that the law is in effect. The moment an abortionist performs the procedure — or even before, since the law allows lawsuits against those who aid and abet the procedure — proper lawsuits will be filed in state and federal courts, claiming that the actual effect of the law violates Roe.
There is no basis for DOJ to jump the gun, and no pressing need for it to do so.
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