Thread by @walterdellinger

1) Those judging the Tx Abortion Law should consult Scalia’s justly famous dissent in Morrison v. Olson. Railing against the Independent Prosecutor Law, Scalia rants against giving to one who lacks governmental supervision the power to seek punitive sanctions against individuals

2) Tx Abortion Law is an Independent Prosecutor on steroids. Scalia’s dissent argued that only the regular processes of government with layers of supervision should determine how and when governmental power is brought to bear on individuals, safeguards the IC law lacked.

3) Unleashed by Texas is not just one “independent counsel” but potentially millions of free actors, empowered to go after fellow citizens for motivations, some benign, some vindictive, some god knows what.`

4) Yes, these are not formally criminal actions & all of us can be civilly sued by fellow citizens. Here, however, the draconian sanctions give self-appointed guardians, unconstrained by government officials, extraordinary coercive powers. The $10K penalty is a minimum amount

5) it is not “$10,000” for each act of assisting a woman to have an abortion. It is “not less than” $10,000. Special venue rules allow suits to be brought before judges all over Texas so it should not be difficult to find one who believes that right fine is $10 Million or more.

6) Three Justices will strike down the TX law because it is clearly invalid under Roe and Casey. Six others should strike it down because it profoundly violates due process to grant self-selected individuals near prosecutorial powers without meaningful supervision or limits.

7). Texas’s unprecedented & novel intrusion into personal liberty will admittedly require some novelty in judicial remediation. Justice Scalia would have been fit to the task. Will any of the current Justices be able to rise to the occasion?

Steve Sachs is right that Scalia’s opinion in Morrison v. Olson is about federal executive power. But Scalia ends “I conclude my discussion by considering the effect of the Act upon the fairness of the process [those subject to it] receive.” Those concerns apply to the Tx Law