Constitutional Law Prof Blog

Court to Hear Arguments in Texas Abortion Cases

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral arguments tomorrow in the Texas abortion cases. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Abortion Rights

Can federal courts hear challenges by private plaintiffs or the federal government to halt the enforcement of a law that authorizes private citizens to sue doctors for providing an abortion after six weeks of pregnancy?

Case at a Glance

Texas’s S.B. 8 prohibits a doctor from performing an abortion after about six weeks of pregnancy, in plain violation of settled Supreme Court precedents. At the same time, the law is designed to foreclose traditional channels of judicial review and effectively prevent federal courts from hearing challenges to it. S.B. 8 does this by authorizing private plaintiffs (and not state officials) to enforce its ban by suing doctors who provide an abortion after six weeks of pregnancy for civil damages. Taken together, S.B. 8’s abortion ban and its outsourced enforcement have achieved their objective: abortions have effectively stopped in Texas. And the federal appeals courts, citing procedural hurdles, have so far declined to intervene.

INTRODUCTION

S.B. 8 is a flat violation of a woman’s fundamental right to an abortion under Roe v. Wade and Planned Parenthood v. Casey. Ordinarily, such a law would be subject to federal judicial review. But S.B. 8’s enforcement mechanism—private lawsuits against abortion providers—is specifically designed to thwart federal judicial review. These cases test whether abortion-rights advocates and doctors or the federal government can nevertheless sue in federal court to stop the law.

ISSUE

Can abortion-rights advocates and abortion doctors or the federal government sue in federal court to halt enforcement of Texas’s S.B. 8?

FACTS

Texas’s S.B. 8 is an unusual, even unprecedented, act. On its face, S.B. 8 prohibits a physician from knowingly performing an abortion after the detection of a fetal heartbeat, usually around six weeks into a pregnancy, before most women even know that they are pregnant. It contains no exceptions for rape or incest. And it provides only a limited and ill-defined exception for a “medical emergency.”

On its face, that’s a flat violation of a woman’s fundamental right to an abortion. Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), establish that government can regulate abortion before a fetus is viable (that is, before it is able to survive outside the womb), usually around 22 to 24 weeks into the pregnancy, so long as the regulation does not create an “undue burden” on a woman’s access to abortion. S.B. 8’s ban on abortions after six weeks of pregnancy plainly constitutes an undue burden on a woman’s access to abortion before viability. In other words, S.B. 8 plainly violates Roe and Casey.

But that’s not why S.B. 8 is unusual. Indeed, a host of states have enacted abortion bans that plainly constitute an undue burden on a woman’s access to abortion before viability. They have enacted such laws for the stated purpose of challenging Roe v. Wade itself, and persuading the Court to overturn the case. In fact, the Court will consider such a law next month, when it hears oral arguments in Dobbs v. Jackson Woman’s Health Organization, a case testing Mississippi’s ban on abortions after 15 weeks of pregnancy. S.B. 8’s plain violation of Roe and Casey doesn’t make the law unusual; it makes it a sign of our times.

So here’s why S.B. 8 is unusual, even unprecedented: it outsources enforcement. In particular, S.B. 8 specifically prohibits state officials from enforcing the ban, which is the usual way that states enforce their laws, and instead authorizes “any person” to sue an abortion provider who provides an abortion after six weeks of pregnancy. It also authorizes “any person” to sue anyone who “aids or abets” an abortion, or even intends to aid or abet an abortion, after six weeks of pregnancy. (S.B. 8 prohibits a plaintiff from suing the woman herself, however.) A plaintiff in these suits need not have any connection to the abortion, or even any connection to Texas. They can get injunctive relief, stopping the defendant from further violating S.B. 8. They can also recover a minimum of $10,000 for each abortion, plus costs and attorney’s fees. That alone creates a strong financial incentive for doctors to stop performing abortions after six weeks of pregnancy.

But there’s more. S.B. 8 prohibits a defendant in these actions from claiming that they believed that S.B. 8 was unconstitutional. (In other words, S.B. 8 purports to stop potential defendants from raising this argument as a defense in an S.B. 8 lawsuit.) And it restricts (although it apparently does not fully prohibit) a defendant from arguing that S.B. 8 creates an undue burden on a woman’s right to abortion. S.B. 8 also prohibits a court from awarding attorney’s fees or court costs to a defendant, even if the defendant prevails. As a result, a prevailing defendant—even against an obviously spurious lawsuit—must cover all costs and attorney’s fees to defend the action. That creates a strong financial incentive for doctors to stop performing all abortions.

Finally, yet more. S.B. 8’s venue rules allow plaintiffs to strategically file their cases in Texas courts that are most amendable to their claims, and to block a defendant’s attempt to transfer to another court. Moreover, S.B. 8’s issue- and claims-preclusion provisions seemingly allow an endless line of plaintiffs to sue an abortion provider, or anyone who aids or abets an abortion, even for the same abortion. (At the same time, another provision of the act says that “a court may not award relief . . . if a defendant demonstrates that the defendant previously paid the full amount of statutory damages . . . in a previous action for that particular abortion . . . .” Taken together, the provisions seem to allow a variety of plaintiffs to sue a defendant for the same abortion, but restrict the court in awarding relief if a defendant has already paid in an earlier case.)

In short, Texas designed S.B. 8 to violate a woman’s fundamental right to abortion under Roe and Casey; effectively to halt abortions in the state; and specifically, to thwart judicial review. That’s not commentary; it’s exactly what Texas legislators said when they enacted the law.

Anticipating these results, Whole Woman’s Health, along with Texas abortion providers and individuals and organizations that support abortion patients, sued to stop S.B. 8 before it went into effect, on September 1, 2021. The plaintiffs sued several state officials, including state court clerks and judges, and a private person, on the ground that they would enforce S.B. 8.

The district court denied a motion to dismiss the case. The Fifth Circuit stayed the district court proceedings and rejected the plaintiffs’ motion for an injunction pending appeal. On emergency appeal, the Supreme Court then declined to grant an injunction against S.B. 8 or to vacate the Fifth Circuit’s stay pending appeal. The Court said that federal courts have the power to enjoin individuals, not laws. It also suggested that the plaintiffs sued the wrong defendants, because “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law . . . .” (Four justices sharply dissented.) The ruling meant that S.B. 8 went into effect on September 1.

Soon after the Court declined to intervene, the federal government sued Texas itself (and not individuals), arguing that S.B. 8 was unconstitutional. The district court granted the government’s motion for a preliminary injunction, but the Fifth Circuit stayed the injunction pending appeal.

The Supreme Court then agreed to hear both cases and expedited the briefing and arguments. Each case raises the questions whether the federal courts can hear the plaintiffs’ challenges to S.B. 8, and whether they can halt enforcement by the defendants.

CASE ANALYSIS

At their most fundamental level, both cases test whether the federal courts can hear the plaintiffs’ challenges and enjoin the enforcement of S.B. 8. That’s a contested question, because Texas, by outsourcing S.B. 8’s enforcement to private plaintiffs, diluted and dispersed the enforcement responsibility, making it hard to identify actual defendants before anybody files an S.B. 8 lawsuit. And because S.B. 8’s financial incentives all but prohibit doctors from performing any abortion in the first place, S.B. 8 ensures that there will be few, if any, S.B. 8 lawsuits where a doctor could challenge S.B. 8 after enforcement. (In any event, S.B. 8 limits how doctors can raise challenges in those lawsuits.)

Despite S.B. 8’s design to thwart federal judicial review, the plaintiffs in both cases contend that the federal courts can hear their cases; and because of S.B. 8’s design to thwart judicial review, the plaintiffs argue that the federal courts must hear their cases. Texas, for its part, contends that S.B. 8 technically allows judicial review through S.B. 8 cases themselves—and not in through these federal court cases—even though S.B. 8 itself limits or effectively eliminates that option.

The two cases raise separate but overlapping arguments. (Texas filed a single brief covering both cases.) Because there are some differences, however, we summarize the arguments in the cases separately. Let’s start with Whole Woman’s Health, then we’ll examine United States v. Texas.

Whole Woman’s Health v. Jackson

The plaintiffs argue first that their claim “fit[s] neatly” with 42 U.S.C. § 1983, the federal statute that authorizes a civil lawsuit against individuals acting under the authority of state law for violating constitutional rights. They argue that Section 1983 specifically authorizes suits against “judicial officers” acting in their “judicial capacity.” They contend that the “text and purpose” of Section 1983 allows their suit to go forward against the state officials, including the judges, and the private defendant.

The plaintiffs argue next that their suit for injunctive relief against state officers is valid under Ex Parte Young, 209 U.S. 123 (1908). The Court in that case held that a plaintiff can sue a state official for prospective injunctive relief, notwithstanding the state’s general immunity from suits for monetary damages under state sovereign immunity and the Eleventh Amendment. The plaintiffs assert that the court clerks, judges, and state officials who are defendants in this action all play roles, to one degree or another, in S.B. 8’s enforcement, and therefore fall within the Ex Parte Young doctrine. Moreover, the plaintiffs write that “where, as here, a law hamstrings state courts’ ability to provide defendants a fair opportunity to vindicate their rights—all while deputizing millions of private citizens to sue—equity requires that federal courts step in and prevent irreparable constitutional injury.”

Third, the plaintiffs argue that they have standing to sue. They contend that the threat of enforcement of S.B. 8 creates an injury (the lack of access to abortion, as illustrated by the actual injury women suffered after the Court declined to halt S.B. 8’s implementation, and the resumption of abortions during the period of injunction in United States v. Texas); that the defendants, to one degree or another, caused that injury; and that an injunction against the defendants would redress the injury, because it would ensure that women again have access to abortion in Texas. The plaintiffs also say that the defendants’ vigorous defense of S.B. 8 in the courts ensures a “sharp presentation” of the “complex and novel” questions.

Finally, the plaintiffs argue that the Court should uphold the district court injunction in order to “protect federal supremacy from the imminent threat posed by S.B. 8 and copycat bills already under consideration by States seeing what Texas has achieved thus far—enactment of a law that baldly defies this Court’s precedent yet is insulated from effective judicial review.” The plaintiffs contend that if S.B. 8 stands, nothing prohibits states from similarly insulating other state laws that blatantly violate constitutional rights from judicial review simply by outsourcing enforcement, exactly as Texas did here.

In response, Texas argues that the plaintiffs lack standing, and that state sovereign immunity bars their suit. Texas says that state executive officials do not have authority to enforce S.B. 8. As a result, the state says that the plaintiffs lack standing to sue those officials, because their actions cannot cause the plaintiffs any injuries, and any judicial relief would not redress the plaintiffs’ injuries. For the same reason, Texas argues that those officials simply do not fall within Ex Parte Young’s exception to Eleventh Amendment immunity. Texas claims that state judges are neutral adjudicators, not adverse parties (or “judicial enforcers” of S.B. 8), and that they are bound to apply both S.B. 8 and Casey. Given this, Texas concludes that the plaintiffs lack standing, because the plaintiffs’ requested relief—an injunction instructing them to apply Casey—would not redress their alleged harm.

Penny Clarkston, the district clerk of Smith County, Texas, filed her own brief. Mark Lee Dickson, “a pastor and anti-abortion activist,” filed his own brief. They made substantially similar arguments.

United States v. Texas

The government argues first that it has authority to sue Texas in equity to protect its interests. The government says that it can sue in equity to prevent Texas from thwarting judicial review under federal law. It claims that it does not sue merely to enforce its citizens’ constitutional rights, but also to prevent Texas’s “unprecedented attack on the supremacy of the Constitution as interpreted by this Court”—a “distinct sovereign interest” that forms the basis of its suit in equity. The government contends that it also has an interest in preventing S.B. 8 from interfering with its own programs that “require federal employees and contractors to arrange, facilitate, or pay for abortions in some circumstances,” and holding federal employees and contractors liable “for carrying out their federal duties.”

The government argues next that the federal courts have the power to grant relief in favor of the government and against Texas. The government claims that under the Federal Rules of Civil Procedure, an injunction against Texas can also bind state officers and agents and “other persons who are in active concert or participation” with the state or its officers. According to the government, this means that an injunction can bind plaintiffs who bring S.B. 8 suits, court clerks who accept those suits, judges who hear the cases, and other state officials who would enforce any judgments. The government acknowledges that some of this relief may be unusual. But so is S.B. 8. “And having chosen an unprecedented scheme in a deliberate effort to thwart ordinary judicial review, Texas should not be heard to complain when the federal courts exercise remedial authorities that are usually unnecessary.”

Finally, the government argues that the federal courts can grant declaratory relief (declaring that S.B. 8 is invalid), because the government’s power to bring this case in equity “also allows it to seek a declaratory judgment.” The government asserts that declaratory relief would arm abortion providers with a defense in S.B. 8 suits against them, providing “another reason why those suits must be dismissed.” But in any event, the government claims that declaratory relief is no substitute for injunctive relief. That’s the only way “[t]o halt the irreparable injury arising from Texas’s defiance of this Court’s precedent and systematic denial of constitutional rights within the State’s borders . . . .”

Texas counters that the government lacks standing for the same reasons why the Whole Woman’s Health plaintiffs lack standing, but more. Texas says that it does not cause the government harm “by the mere existence of an allegedly unconstitutional state law that may affect private parties.” The state says that the government’s suit amounts to a request for an “advisory opinion” from the Court, and that Court lacks authority under Article III of the Constitution to issue such an opinion. Texas claims that the district court was wrong to hold that the government could “skirt its obligation to show its own cognizable injury” by drawing on the government’s interest in protecting U.S. citizens under federal supremacy principles. The state says that the Supreme Clause does not grant the government a right to sue to protect U.S. citizens; instead, the government, like private parties, must allege that it suffered a harm to itself.

Texas argues next that the government lacks a statutory or equitable basis for requesting an injunction. The state says that the “numerous statutory mechanism” for enforcing constitutional rights do not authorize the government to sue to vindicate U.S. citizens’ substantive-due-process rights. And it says that equitable principles do not authorize the government to sue to vindicate U.S. citizens’ rights just because the state denied those citizens the ability to enforce their own rights. Texas asserts that if the plaintiffs in Whole Woman’s Health want to protect their rights, they can do so as state-court defendants in S.B. 8 civil actions. The government lacks authority to bring this action to enforce their rights for them.

Third, Texas argues that S.B. 8 does not violate the Constitution. The state claims that it has incorporated Casey’s “undue burden” test into S.B. 8 by allowing an abortion doctor to use “undue burden” as a defense in an S.B. 8 action. The state writes that under S.B. 8, “Texas may not impose liability in cases where doing so would cause an undue burden on a woman seeking an abortion—but neither private parties nor the Department of Justice can compel Texas to support abortion beyond that obligatory floor.” Texas says that this comports with Casey, and does not conflict with federal programs in violation of federal supremacy. “Far from discriminating against the federal government, SB 8 is subject to a state-law presumption that it will not apply to the federal government.”

Finally, Texas argues that the district court’s injunction against “the State” amounts to an impermissible injunction against a law, not a person. That’s because none of the state executive defendants can enforce S.B. 8; federal courts cannot enjoin state courts to apply state and federal law (state courts already do that); and private actors are not “state actors” just because they bring an S.B. 8 suit against other private parties.

Three private citizens—Jeff Tuley, Erick Graham, and Mistie Sharp—filed a separate brief as intervenors, making substantially similar arguments. They claim that they intended to bring S.B. 8 suits only against abortion providers for abortions not covered by Casey, and so also argue that the government cannot sue to halt their S.B. 8 suits “over conduct that is unprotected by the Constitution.”

SIGNIFICANCE

Everybody agrees that S.B. 8 is singular and unprecedented. It plainly violates a woman’s fundamental right to abortion, and, by outsourcing enforcement to private plaintiffs, it thwarts traditional channels of judicial review. For Whole Woman’s Health and the government (and a host of others), this is the problem. For Texas (and a host of others), this is the point.

Whether problem or point, S.B. 8 had its predictable and intended results: It effectively halted abortions in Texas. Texas women who seek an abortion today must travel to neighboring states or other locations where they can still get an abortion. (And they have, flooding abortion providers in neighboring states.) Or, if they cannot afford the time away from work or family or the expense of travel (as is so often the case), or if their health prevents travel, they must go without a doctor-provided abortion.

Time is obviously of the essence, in two ways. On the front end, many or most women don’t even discover their pregnancy until after the sixth week, when S.B. 8 bans abortion. As a result, by the time they know they’re pregnant, many or most women effectively cannot now obtain an abortion in Texas. On the back end, even under Roe and Casey, states can ban abortion entirely after viability, when a fetus can survive outside the womb. As a result, Texas women who seek a doctor-provided abortion must find an out-of-state alternative before about 22 or 24 weeks of pregnancy. All this leaves a narrow window for pregnant women in Texas to exercise their fundamental right to abortion. And, again, that window is only available to Texas women who can travel out of state.  

All this is at issue in the case. If the Court rules that federal courts cannot hear the plaintiffs’ cases and halt enforcement of H.B. 8, abortion will remain effectively unavailable in Texas. (There’s a chance that the Court could also decide whether Roe and Casey remain good law. But given that the Court is slated to hear a direct challenge to Roe this Term (oral arguments come just next month), this seems unlikely.)

That’s not a remote possibility. The Court already declined to halt S.B. 8 in Whole Woman’s Health, over the sharp dissents of four justices. (Chief Justice John Roberts joined Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in various dissents.) One or more of the justices who voted with the majority in that ruling would have to change sides, or find a distinction that persuades them that the courts can hear the government’s case, even if not Whole Woman’s Health’s case.

Such a ruling could have a profound impact on the right to abortion, even if the Court declines to overturn Roe and Casey. Several other states are already considering laws like Texas’s and will quickly enact those copycat laws if the Court rules against the plaintiffs. This could effectively eliminate abortions in those states, just as S.B. 8 effectively eliminated abortions in Texas.

More, such a ruling could have profound impacts well outside the area of abortion rights. As the plaintiffs and several amici point out, if Texas can engineer a law to ban abortion and effectively evade judicial review, then any state can engineer a law to ban any fundamental right and effectively evade judicial review. And there’s no daylight between a woman’s fundamental right to an abortion and any other fundamental right favored by folks with different political stripes. If you have any doubt, check out the amicus curiae brief of the Firearms Policy Coalition in the Whole Woman’s Health case, for example.

Finally, the Court’s rulings in these cases, and in Dobbs, the Mississippi case up next month, could have significant effects on the 2022 mid-term elections. If the Court strikes these state laws, its ruling could mobilize abortion opponents at the polls. If it upholds them, the rulings could mobilize abortion-rights advocates.

All this is to say that these cases are easily among the most important on the Court’s 2021-22 docket so far.

Missouri, Texas Sue Biden Administration for Stalling on Border Wall

Steven D. Schwinn, University of Illinois Chicago School of Law

Missouri and Texas sued the Biden Administration for stalling on wall construction along the southern border. The states claim that Congress appropriated funding for wall construction--and only wall construction--and that the Biden Administration's stall violates the separation of powers, federal appropriations law, and federal administrative law.

The states argue that Congress appropriated $1.37 billion to the Department of Homeland Security in FY 2021 and FY 2020 for "construction of a barrier system along the southwest border" and specified that these funds "shall only be available for barrier systems." They say that when the Biden administration delayed spending the money for wall construction, it impermissibly intruded on Congress's appropriations power in violation of the separation of powers, failed to enforce the law (under the Take Care Clause), and violated federal appropriations law and federal administrative law. The states ask the court to compel the administration to spend the appropriated funds for "construction of a barrier system along the southwest border."

The Biden Administration, for its part, halted wall construction and used appropriated funding to bring wall construction projects into compliance with federal environmental law and federal statutory community-stakeholder-consultation requirements. (DHS had waived these requirements in the Trump Administration. The Biden Administration DHS said that it wouldn't waive them.) The GAO ruled this past summer that this didn't amount to an illegal "impoundment" under the Impoundment Control Act; instead, it was a "programmatic delay." (The states' complaint repeatedly mischaracterizes the GAO opinion.) By this reckoning, the Biden Administration's halt isn't a violation of law; instead, it's a move to comply with law--environmental and stakeholder-consultation requirements that the Trump Administration waived. The Biden Administration also plans to use some of the funding to remediate the environmental damage wrought by wall construction in the Trump years.

Before the case even gets to the merits, however, standing may be an issue. The states claim that the Biden Administration's halt on wall construction leads to greater unauthorized immigration, which causes them to incur costs in issuing drivers licenses, providing public education, and providing health care. It's not at all clear that they can plausibly allege that the Biden Administration's halt causes these harms, and that an order to re-start building would remedy them, as required for Article III standing.

High Court Leaves Texas Abortion Ban in Place, but Expedites Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court today declined to halt the Texas abortion ban, S.B. 8, but expedited appeals by abortion providers and the Biden administration in two separate orders today.

Today's actions by the Court mean that Texas's law stays in place while the appeals proceed at the Supreme Court. The Court set a super-fast briefing schedule and slated oral argument in both cases for November 1.

In the Biden administration appeal, the Court limited the case to whether the United States can sue Texas, state court judges, state court clerks, other state officials, and private parties to prohibit S.B. 8 from being enforced. Justice Sotomayor dissented, arguing that the Court's failure to halt the law pending appeal effectively means that women can't get abortions in Texas. (We posted on the Biden administration appeal most recently here.)

In the doctors' appeal, the Court will decide both whether the doctors can sue state judges, state officials, and private individuals, and, if so, whether S.B. 8 is unconstitutional.

(Remember that the Court will hear yet another case testing a state's abortion ban--Mississippi's ban on abortions after 15 weeks of pregnancy. That case, Dobbs v. Jackson Women's Health Organization, puts Roe and Casey front and center. Still, there may be room in the case for the Court to uphold the law without flat-out overruling Roe. Oral argument in Dobbs is set for December 1.)

Federal Government Asks Supreme Court to Halt Texas's Antiabortion Law

Steven D. Schwinn, University of Illinois Chicago School of Law

The federal government yesterday asked the Supreme Court to reinstate a lower court injunction against Texas's S.B. 8, the state law that effectively shut down nearly all abortions in the state. The move came after the Fifth Circuit stayed the district court's injunction pending appeal.

This'll be the second trip that S.B. 8 makes to the high court. Recall that the Court in an earlier pre-enforcement lawsuit allowed S.B. 8 to go into effect. The Court ruled that the plaintiffs in that earlier case sued the wrong defendants, state judicial officers and private individuals who said that they'd enforce S.B. 8.

The federal government's suit is tailored to navigate that procedural problem in the earlier case and put the issue of S.B. 8's constitutionality squarely before the Court.

In order to do this, the federal government sued Texas itself (not its officers or judges, and no private individuals). The government argues that it can do this in order "to vindicate two distinct sovereign interests":

First, to the extent S.B. 8 interferes with the federal government's own activities, it is preempted and violates the doctrine of intergovernmental immunity. Second, S.B. 8 is an affront to the United States' sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this Court remain available to challenge unconstitutional state laws. The United States has authority to seek equitable relief to vindicate both interests.

(That first interest goes to government obligations to assist certain individuals, like those incarcerated in federal prison, in getting an abortion. If the government honors that obligation for incarcerated women in Texas, it can be subject to civil suit under S.B. 8 in Texas courts. According to the government, this means that S.B. 8 is preempted by those federal obligations, and that S.B. 8, in allowing suits against the United States, violates the government's immunity.)

As a result, the government argues that its suit avoids the wrong-defendant problem in the earlier suit. After all, Texas itself created the mechanism that outsourced enforcement of S.B. 8 to private parties, and so Texas itself must be accountable in court.

The government asked the Court to vacate the Fifth Circuit's stay, or to grant cert. before judgment and set the case for argument this Term.

Trump Sues to Stop House Committee From Obtaining January 6 Records

Steven D. Schwinn, University of Illinois Chicago School of Law

Former President Donald Trump yesterday sued to stop the House Select Committee to Investigate the January 6th Attack on the United States Capitol from obtaining White House and other records from the National Archives.

The move comes after the Committee requested records related to the insurrection from the Archives, and President Biden declined to assert executive privilege to halt their release.

Trump's lawsuit claims principally that the Committee lacks a "legitimate legislative purpose" in the material and therefore exceeds its Article I authority. "No investigation can be an end in itself; there is nothing in the overwhelming majority of the records sought that could reasonably be justified as a means of facilitating the legislative task of enacting, amending, or repealing laws." The lawsuit goes on to claim that the Committee's work looks like law enforcement, not law making, in violation of the separation of powers.

In pitching the lack-of-legitimate-lawmaking-purpose claim, the complaint relies on the Court's four-factor approach in Mazars. At least some of the Mazars analysis, however, turned on the fact that congressional committees sought personal financial records (and not official records) of the president. The complaint doesn't try to square that reasoning in Mazars with the fact that the Select Committee seeks only official records.

The complaint also doesn't seriously wrestle with the idea that the Committee seeks the documents to investigate an attack on Congress to stop the electoral-vote count. Seems like that, if anything, would pretty squarely fall within Congress's "legitimate legislative purpose."

The lawsuit also claims executive privilege, attorney-client privilege, attorney work-product privilege, and deliberative process privilege; and it contends that the requested material touches on national security and law enforcement. It contends that to the extent that the Presidential Records Act authorizes the sitting president to override the former president's assertion of executive privilege, the PRA is unconstitutional.

The suit asks the court to declare that "the Committee's requests are invalid and unenforceable under the Constitution and laws of the United States," or, alternatively, to declare "that the Presidential Records Act is an unconstitutional violation of the separation of powers and is void ab initio." It also asks for preliminary and permanent injunctions to stop the Committee "from taking any actions to enforce the requests, from imposing sanctions for noncompliance with the requests, and from inspecting, using, maintaining, or disclosing any information obtained as a result of the requests," and to stop the Archives from releasing the documents, at least until "Trump has had sufficient opportunity to conduct a comprehensive review of all records the Archivist intends to produce before any presidential record is produced to the Committee."