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Judicial Process and Vigilante Federalism

Charles W. “Rocky” Rhodes & Howard M. Wasserman

Professor of Law and Charles Weigel II Research Professor of State and Federal Constitutional Law, South Texas College of Law Houston & Professor of Law, FIU College of Law.

4 Oct 2023

Jon Michaels’ and David Noll’s Vigilante Federalism decries the explosion of a specific class of state law—prohibiting 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 “S.B. 8”), which prohibited abortions (prior to the Supreme Court rejecting all federal constitutional protection for abortion) following detection of a “fetal heartbeat” (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’ use of bathrooms and participation in athletics to laws regulating access to social‑media 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 “private subordination actions” enforcing “subordination rights” as part of a “private subordination regime.”  They identify two defects in this regime and its associated laws—one substantive, one procedural.  The laws subordinate marginalized groups; they “are premised on a restrictive understanding of citizenship, in which only some members of the polity are viewed as legitimate rights‑holders.”  They do so through a procedural system of private civil litigation empowering “authoritarian‑minded citizens to enforce their White, Christian understanding of morality and citizenship and, in the process, subordinate marginalized groups—Black Americans, women, LGBTQ persons—and their allies.”  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 “advancing an ‘illiberal agenda.’”  The private‑enforcement mechanism imposes an in terrorem effect, sufficient to “eradicate highly personal and sometimes constitutionally protected activities.”  “Vigilante federalism” describes a category of extraordinary laws that “deputize private actors to wage and win the culture wars.”

Unfortunately, Vigilante Federalism conflates the substantive and procedural defects.

Their real objection is substantive—the 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—subordination is subordination, regardless of the mechanisms for enforcing subordinating laws.Vigilante Federalism 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‑girls from participating in girls’ athletics enforces a particular “understanding of morality and citizenship and, in the process, subordinate[s] marginalized groups.”  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’s subordinating effect remains no matter the enforcement mechanism.

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’ 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.

Procedural objections to private‑enforcement regimes reduce to two concerns.  One turns on these new laws’ unprecedented nature—they “borrow the legal technology of earlier private enforcement regimes (progressive and conservative alike) to advance an illiberal agenda that has few parallels in twentieth‑century private enforcement regimes.”  The other considers that these laws erect intentional barriers to raising and litigating their constitutional defects, making it difficult or impossible—in an unprecedented way—for rights holders to assert their subordinated constitutional and sub‑constitutional rights.

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’ 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’s “private subordination regime.”

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‑initiated 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.

The second taxonomy recognizes distinct types of private‑enforcement regimes—four 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 “any person” (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.

Combining these taxonomies demonstrates the commonality of private‑enforcement 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.

To read this Essay, please click here: Judicial Process and Vigilante Federalism.