Thread by @MithradatesVI

I'm reading the Whole Woman's Health opinion, and unless I'm much mistaken, Gorsuch just opened up that can of worms and whole-heartedly downed it.

supremecourt.gov/opinions/21pdf…

The opinion dismisses the arguments based on Pulliam and Ex parte Young that the court can enjoin court officials from enforcing a law. They dismiss the actions against the judges, the clerks, and the attorney general, leaving only the action against licensing officials standing.

The result is that this kind of law will escape constitutional review in the future. This particular one just wasn't quite as artfully drafted as its writer thought.

Gorsuch does respond to the issue he is creating, but his response is basically to shrug and suggest that pre-enforcement review isn't important because plaintiffs can just raise their constitutional arguments during enforcement.

In the instant case, 3.6 roentgen. Not great, not terrible.

https://twitter.com/OblivionVortex/status/1469330762176643076?s=20

Because of inartful drafting the suit survived against certain state officials. But the technique for avoiding pre-enforcement review got the stamp of approval, and by mere coincidence our Geiger Counters only go up to 3.6 roentgen.

So now anyone who wants to chill a behavior in the future can pass one of these laws, and no one can challenge it without facing whatever massive penalty the legislature cares to dream up.

Gorsuch hand waves this too. So what if there's a chilling effect? Sure, they were doing abortions before and they are scared out of their minds to now, but that's not a particularized injury...

Yes, at least until someone actually brought a suit to enforce. So you would need someone interested in actually enforcing it, and someone willing to stand up and do the behavior in question.

In your example, I imagine that would happen quickly.

https://twitter.com/OblivionVortex/status/1469332512732286983?s=20

This whole scheme only works if the individual interest in the behavior is less than the burden of litigation, because we are only eliminating pre-enforcement review.

It will be easy to wipe out certain low value but otherwise constitutionally protected behaviors.

Religion is probably too high-value for this tactic. Not hard to imagine others that might not be.

Say, offensive yard signs. 1A protected, but who wants to put down $1m to validate that right?

For the last 50 years we have had 1983 actions to vindicate constitutional rights pre-enforcement. If you won, you got your attorneys fees.

It was a way of forcing Southern states to recognize the constitutional rights of minorities.

https://twitter.com/OblivionVortex/status/1469335883958652930?s=20

Today the Court swept all that away.

From now on, unconstitutional laws aimed at terrorizing vulnerable people will escape pre-enforcement review review.

They will die only when someone stands up and says, "Yes, I will pay my lawyer $1m and risk losing and bearing whatever penalty the legislature has cooked up."