{"id":4169,"date":"2023-10-04T19:22:34","date_gmt":"2023-10-04T19:22:34","guid":{"rendered":"https:\/\/www.cornelllawreview.org\/?p=4169"},"modified":"2023-10-04T19:22:34","modified_gmt":"2023-10-04T19:22:34","slug":"judicial-process-and-vigilante-federalism","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/2023\/10\/04\/judicial-process-and-vigilante-federalism\/","title":{"rendered":"Judicial Process and Vigilante Federalism"},"content":{"rendered":"\n

Jon Michaels\u2019 and David Noll\u2019s Vigilante Federalism<\/em> decries the explosion of a specific class of state law\u2014prohibiting locally unpopular, although perhaps constitutionally protected, conduct using private civil litigation as the exclusive or primary enforcement mechanism.  The trend begins with the Texas Heartbeat Act in 2021 (commonly referred to as \u201cS.B. 8\u201d), which prohibited abortions (prior to the Supreme Court rejecting all federal constitutional protection for abortion) following detection of a \u201cfetal heartbeat\u201d (around six weeks of pregnancy).  It extends to laws prohibiting public discussion of abortion and abortion drugs to laws limiting how schools and universities cover race and history to laws regulating discussions of sexual orientation and gender identity in schools to laws limiting transgender students\u2019 use of bathrooms and participation in athletics to laws regulating access to social\u2011media sites to laws prohibiting assisting voters.  All authorize private individuals to sue someone for private civil remedies, with the goal of stopping or deterring the targeted conduct. Michaels and Noll label these lawsuits \u201cprivate subordination actions\u201d enforcing \u201csubordination rights\u201d as part of a \u201cprivate subordination regime.\u201d  They identify two defects in this regime and its associated laws\u2014one substantive, one procedural.  The laws subordinate marginalized groups; they \u201care premised on a restrictive understanding of citizenship, in which only some members of the polity are viewed as legitimate rights\u2011holders.\u201d  They do so through a procedural system of private civil litigation empowering \u201cauthoritarian\u2011minded citizens to enforce their White, Christian understanding of morality and citizenship and, in the process, subordinate marginalized groups\u2014Black Americans, women, LGBTQ persons\u2014and their allies.\u201d  Unlike longstanding and historic uses of private enforcement to support regulatory agendas in areas such as environmental law and employment, these laws turn private enforcement towards \u201cadvancing an \u2018illiberal agenda.\u2019\u201d  The private\u2011enforcement mechanism imposes an in terrorem<\/em> effect, sufficient to \u201ceradicate highly personal and sometimes constitutionally protected activities.\u201d  \u201cVigilante federalism\u201d describes a category of extraordinary laws that \u201cdeputize private actors to wage and win the culture wars.\u201d<\/p>\n\n\n\n

Unfortunately, Vigilante Federalism<\/em> conflates the substantive and procedural defects.<\/p>\n\n\n\n

Their real objection is substantive\u2014the laws undermine substantive rights (or efforts to create substantive rights) for historically disadvantaged groups to the benefit of conservative, white Christians.  Process is irrelevant to that objection\u2014subordination is subordination, regardless of the mechanisms for enforcing subordinating laws.Vigilante Federalism<\/em> never demonstrates how private, as distinct from public, enforcement exacerbates the illiberalism or the chill on protected conduct.  Any law prohibiting historically accurate school discussions of slavery and Jim Crow or prohibiting trans\u2011girls from participating in girls\u2019 athletics enforces a particular \u201cunderstanding of morality and citizenship and, in the process, subordinate[s] marginalized groups.\u201d  States have many tools with which to target abortion providers, trans kids, and teachers adopting inclusive curricula; any state prohibition on their conduct, whether publicly or privately enforced, eradicates those activities.  The prohibition\u2019s subordinating effect remains no matter the enforcement mechanism.<\/p>\n\n\n\n

We might frame this in different terms.  A stupid law is not necessarily a constitutionally invalid law. Michaels and Noll identify arguably meritorious substantive constitutional objections to vigilante federalism laws.  But by emphasizing the laws\u2019 enforcement schemes and the problems they create for plaintiffs, Michaels and Noll mischaracterize procedural policy objections as broader constitutional concerns.  Private enforcement may be stupid; that does not make it, or the laws privately enforced, constitutionally invalid.<\/p>\n\n\n\n

Procedural objections to private\u2011enforcement regimes reduce to two concerns.  One turns on these new laws\u2019 unprecedented nature\u2014they \u201cborrow the legal technology of earlier private enforcement regimes (progressive and conservative alike) to advance an illiberal agenda that has few parallels in twentieth\u2011century private enforcement regimes.\u201d  The other considers that these laws erect intentional barriers to raising and litigating their constitutional defects, making it difficult or impossible\u2014in an unprecedented way\u2014for rights holders to assert their subordinated constitutional and sub\u2011constitutional rights.<\/p>\n\n\n\n

Both premises fail.  States have long authorized private enforcement of laws in ways that might undermine constitutional rights, chill constitutionally protected conduct, and subordinate historically disfavored groups.  And the judicial process provides tools for litigating these laws\u2019 constitutional validity and vindicating individual rights against private enforcement.  We made this point with respect to the Texas Heartbeat Act.  And it applies to all laws within Michaels and Noll\u2019s \u201cprivate subordination regime.\u201d <\/p>\n\n\n\n

We support this conclusion with two taxonomies.  The first taxonomy recognizes three postures in which rights holders litigate their constitutional rights: (1) Defensively, defending against government\u2011initiated criminal, civil, or administrative proceedings and against privately initiated civil litigation; (2) Offensively, before enforcement of the challenged law, seeking to stop future enforcement; and (3) Offensively, after enforcement of the challenged law, seeking a retroactive remedy (usually damages) for injuries caused by past enforcement.  Different postures offer different benefits and raise different problems; litigants may prefer one over others.  But courts recognize all as available and effective mechanisms for vindicating constitutional rights.<\/p>\n\n\n\n

The second taxonomy recognizes distinct types of private\u2011enforcement regimes\u2014four frameworks for private enforcement, including laws that subordinate the historically disadvantaged groups Michaels and Noll seek to protect: (1) Exclusive private enforcement of state law by \u201cany person\u201d (regardless of personal injury) against a private federal rights holder; (2) Exclusive private enforcement of state law by a personally injured individual against a private federal rights holder; (3) Mixed or complementary public and private enforcement of state law against a private federal rights holder; and (4) Private enforcement of state law against the state or local government.  Each framework provides one or more mechanisms through which defendants can raise, adjudicate, and prevail on their constitutional objections to the subordinating laws.<\/p>\n\n\n\n

Combining these taxonomies demonstrates the commonality of private\u2011enforcement schemes and the many ways rights holders can challenge the constitutional validity of the underlying restrictions.  Subordination regimes may be constitutionally problematic in suppressing substantive rights, as Michaels and Noll argue.  But their enforcement mechanisms do not create distinct procedural problems.<\/p>\n\n\n\n

To read this Essay, please click here: Judicial Process and Vigilante Federalism<\/a><\/em>.<\/p>\n\n\n\n

<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Jon Michaels\u2019 and David Noll\u2019s Vigilante Federalism decries the explosion of a specific class of state law\u2014prohibiting locally unpopular, although perhaps constitutionally protected, conduct using private civil litigation as the exclusive or primary enforcement mechanism.  The trend begins with the Texas Heartbeat Act in 2021 (commonly referred to as \u201cS.B. 8\u201d), which prohibited abortions (prior…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[18],"tags":[],"class_list":["post-4169","post","type-post","status-publish","format-standard","hentry","category-online-volume-108"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts\/4169","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/comments?post=4169"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts\/4169\/revisions"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/media?parent=4169"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/categories?post=4169"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/tags?post=4169"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}