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Someone should probably remind California Gov. Gavin Newsom of the old saying that two wrongs don’t make a right. After justifiably criticizing Texas’ dangerous new abortion law, Newsom has turned around and borrowed from its approach.
While the Texas law is dangerous first in the way it restricts the control women have over their own bodies and their reproduction, it is also dangerous in its enforcement mechanism. It was specifically designed to circumvent government enforcement and constitutional challenges, instead resting enforcement power in the hands of citizens via civil action in court. This includes financial penalties for violators and financial rewards for the people bringing the suits, effectively making it a bounty system. Newsom wants to use the approach to allow citizens in California to sue gun manufacturers, distributors and sellers. He’s completely off target.
Legal experts correctly predicted that other states would seek to replicate Texas’ approach. Republican officials in at least seven states have indicated they could follow suit. This trend is alarming across the board. It’s also particularly cynical for Newsom to turn to this flawed enforcement mechanism after rightly raising concerns about its use in Texas.
Newsom’s announced new approach to gun control followed the U.S. Supreme Court’s decision to allow the Texas law to remain in place for now, while also allowing some challenges against it to proceed.
“If states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way,” he said.
The California governor has taken a legitimate concern about the Texas abortion law to an irresponsible extreme. If someone recognizes the fundamental flaws of this enforcement scheme — and it is a scheme — then the last thing they should be doing is copying it.
Other efforts to delegate enforcement power to private entities have not held up to constitutional scrutiny in the past, and the Texas law should meet the same fate. But in the meantime, there is a worrying proliferation of this approach. In addition to Newsom’s efforts, Florida Gov. Ron DeSantis now wants to use a similar approach to allow parents to sue school districts in order to “take on both corporate wokeness and Critical Race Theory.”
Newsom, a Democrat, and DeSantis, a Republican, have joined with Texas Republicans to once again prove that bad ideas can be bipartisan. Several members of the Supreme Court, including Chief Justice John Roberts, have zeroed in on the dangers of this vigilante-like approach from states that enlists everyday citizens to enforce laws in an attempt to get around court challenges. Roberts rightly likened it to state legislatures trying to nullify rulings from federal courts, quoting several previous rulings along the way.
“The clear purpose and actual effect of [the Texas abortion law] has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the ‘ fundamental and paramount law of the nation,’ and ‘it is emphatically the province and duty of the judicial department to say what the law is,’” Roberts wrote in his partial dissent when the court decided to allow the Texas law to remain in place for now. “Indeed, ‘if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’ The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
Roberts’ fellow court members, governors and state legislators should be listening to this warning. The rule of now must not be allowed to supersede the rule of law. Going around the constitution to deputize the entire population against each other might get one governor, legislature or political party what they want in the short term, but we’ll all lose in the end.