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L'etat c'est We the People: exceptions, Pitman, pp 62-93, Mitch O'bama School of ConLaw
The exception "rests on the fiction . . . that because a sovereign state cannot commit an unconstitutional act, a state official enforcing an unconstitutional act is not acting for the sovereign state and therefore is not protected by the Eleventh Amendment." Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir. 2001). Because state officials lack sovereign immunity protection in a suit brought by the United States, this Court need not address whether their conduct falls within the Ex parte Young exception.40 Even so, the Supreme Court's reasoning for creating the Ex parte Young exception informs this Court's determination. The exception "is based in part on the premise that sovereign immunity bars relief against States and their officers in both state and federal courts, and that certain suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land." Alden, 527 U.S. at 747. It is rooted in the "supreme authority of the United States." Young, 209 U.S. at 167.

Lacking the protections of sovereign immunity, an injunction against the State also would run as to people who act as an arm of the state, such as state judicial officials like judges and court clerks. Given that it is the threat of S.B. 8 lawsuits that deters providers from offering abortion care services, see supra Section IV(B)(1)(a)(i), an injunction must halt existing S.B. lawsuits and prevent new suits from being maintained by the state judiciary. Even though private individuals file S.B. 8 lawsuits, the state judiciary plays a role in the lawsuits through several official actions including docketing, maintaining, hearing, and rendering relief in an S.B. 8 lawsuit.41
Any argument that the State, through its judicial system and judges, is not involved in the enforcement of S.B. 8 lawsuits is contradicted by the plain language of the statute and by the reality of how state courts operate as an arm of the state to enforce the law, especially when the State has intentionally crafted a statute to employ private citizens[sic] as its proxy. Put simply, the State's participation in enforcing S.B. 8 lawsuits amounts to actionable state action. See Shelley, 334 U.S. at 18 ("[I]t has never been suggested that state court action is immunized from the operation of [the Fourteenth Amendment] simply because the act is that of the judicial branch of the state government.").
In Jackson, the Fifth Circuit's analysis of its appellate jurisdiction over a private individual who might sue under S.B. 8 hinged on the fact that the "connection between judges, clerks, and [the private individual are] impossible to miss." Jackson, 2021 WL 4128951, at *7. So much so that the Fifth Circuit determined that the private individual's "jurisdictional issues [under S.B. 8] are `inextricably intertwined' with the same issues in the State Defendants' appeal . . . ." Id. (quoting Swint v. Chambers Cty. Comm'n, 514 U.S. 35, 51 (1995)). S.B. 8 vests private individuals with the authority to enforce the statute, "a traditionally exclusive state power." (Mot. Prelim. Inj., Dkt. 8, at 40). The Chief Justice of the Supreme Court has himself described the statutory scheme as "unprecedented" and noted that it "delegated enforcement* . . . to the populace at large. . . . to insulate the State from responsibility for implementing and enforcing the regulatory regime." Jackson, 2021 WL 3910722, at *1 (Roberts, C.J., dissenting).  

As such, private individuals enforcing S.B. 8 are properly regarded as state actors. "Individuals suing under S.B. 8 are not suing `for violation of distinct legal duties owed' to them as individuals, but instead are suing `for violation of legal duties owed the public.'" (Mot. Prelim. Inj., Dkt. 8, at 40) (quoting Texas v. Dep't of Labor, 929 F.3d 205, 213 (5th Cir. 2019)).

Courts have characterized private parties as state actors where a state allows or is involved with conduct that would be unconstitutional should the state itself engage in that conduct.42 See also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621-22 (1991) ("Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.") (internal citations omitted). Apt is Shelley, a 1948 case brought by the Kraemers, a white couple, against the Shelleys, a Black couple, to stop the Shelleys from moving into the house they had just purchased in a St. Louis neighborhood.43 334 U.S. at 4-6. The Kraemers sought to enforce the terms of a restrictive covenant that specifically excluded Blacks from occupying the property.
* trans. note: to depute; bf emphases added throughout. < wipes tears > sins, stains, apologies
archived Alien Tort Act, color of law, obedience I, obedience II
by Cat on Sun Oct 10th, 2021 at 02:43:56 PM EST
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