ChrisWeigant.com

Gavin Newsom Steps Onto A Very Slippery Slope

[ Posted Tuesday, December 14th, 2021 – 15:43 UTC ]

California Governor Gavin Newsom has decided that the way to fight fire is with some fire of his own. This can be a valuable political tactic at times, to show the opposition party that their own schemes can be used by the other side in unforeseen ways. But doing so always runs the risk of sparking a conflagration that burns everything down. And this could be one of those times.

It's understandable what Newsom is trying to do and the message he is trying to send. It's an important message, and its intended targets are the six conservative justices on the United States Supreme Court. Plainly stated, this message is: "Be very careful what legal tactics you decide are constitutional, because they will be used in ways you do not like or approve of."

The real issue is the recent Texas law that allows private citizens to sue anyone aiding a woman getting an abortion after six weeks of pregnancy. If the person suing is successful, the person being sued has to pay them $10,000. This is despite the fact that constitutional law, as it now stands, guarantees women the right to an abortion up to the point of viability (at around 22 to 24 weeks). Texas didn't come right out and ban Texas women from getting an abortion after six weeks, they instead passed this sneaky law whose real intent is to escape federal court review altogether. Since no Texas official is actually involved in policing the law (private citizens are, not any agent of the state itself), they think this makes it impossible to sue to block it in federal court.

So far, they've gotten away with this legal tomfoolery to an astonishing degree. The Supreme Court has refused to block the law until the court cases are fully resolved. The Supreme Court has also already heard another case (from Mississippi) challenging a new state law which restricted their abortion limit to only 15 weeks. The justices may use this case to either overturn or completely dismantle Roe v. Wade. But until they do, Texas seems to have found an end-run around women's constitutional rights.

Newsom is fighting back by calling on the California legislature to pass a similar law which would give private citizens the same right to sue anyone in California who possesses an assault rifle or a "ghost" gun (a gun made from parts that are not registered and thus can't be tracked). He has called for a law which would award the same $10,000 if the person suing wins their case. The only difference, really, is that the Supreme Court has never explicitly ruled that any American has the constitutional right to own an assault weapon or a ghost gun (according to Newsom).

I have to admit, when I heard of this scheme, I had mixed feelings. On the one hand, it clearly sends a very pointed message to both Texas and other conservative states that this tactic could be used by blue states in ways they may not have considered. But on the other hand, it would throw Pandora's Box wide open to the legal tactic being used for all sorts of contentious issues: gay marriage, vaccinations, birth control, or even free speech and/or freedom of the press. This is an incredibly slippery slope, in other words.

The laws in question might be called "legalized vigilantism," or maybe "using the legal system for vigilantism," perhaps. Citizens policing the laws is one definition of vigilantes, after all. In the Texas case, this doesn't mean rounding up an armed posse or anything, but instead forcing people to face costly lawsuits. If this is constitutionally-allowable, then why shouldn't blue states adopt the tactic to showcase things they are opposed to?

But upon reflection, I don't really think this is the way progressives should go -- at least, not yet. After all, the Supreme Court has yet to rule on the Texas scheme. It did allow federal lawsuits challenging the Texas law to go forward, which means that eventually the high court will have a specific case in front of them to rule on. And the key legal issue will be whether such a scheme is constitutional or not. The law was specifically designed to deny federal courts any say at all in its implementation, after all. That sort of thing tends to annoy federal judges. Even (at times) conservative ones on the Supreme Court. So it is not a foregone conclusion how the court will rule, even with their 6-3 conservative majority.

An important point to consider is that this will still be true even if the court has already essentially invalidated Roe v. Wade. The two legal issues are separate. The Roe ruling will almost certainly come before the court has to make a final decision on the constitutionality of the Texas law, so they'll either be doing so in a post-Roe world or one in which Texas women still have the same constitutional right as every other woman in America.

Now, don't get me wrong. I have no faith that the court will do the right thing and throw out the Texas law with a sweeping admonition to all states not to try such end-runs around the federal judicial system. I think that is the proper outcome, but who knows how the Supreme Court will see it? But at the same time I don't consider it an impossibility that the court will indeed throw out the Texas law. As I said, federal judges don't usually take kindly to efforts to limit their own powers.

Perhaps Newsom is merely signalling to the court what the inevitable result will be, should they rule that the Texas scheme is fully acceptable. After all, no law has passed the California statehouse yet -- Newsom is merely making a public plea for them to do so. So maybe the entire political effort is merely a warning shot across the bow, as it were. Maybe the state legislature will refuse to quickly act on Newsom's request.

But maybe they will swiftly pass such a law. They certainly have enough votes to pass something like this, if they feel so inclined. And since Newsom is the one calling for it, it's an absolute certainty he'd sign it if they did.

Which would make California just as bad as Texas. Two wrongs don't make a right. If you believe the Texas law is grossly unconstitutional as written -- obviously designed to avoid any federal court's review entirely -- then you have to also oppose California (or any other state) using the same legal tactic to condemn things progressives don't like.

But you'll note that earlier I said: "I don't really think this is the way progressives should go -- at least, not yet." Because if the Supreme Court does eventually uphold this bizarre vigilante legal scheme in Texas as somehow being constitutional, then the sky will truly be the limit for copycat laws in other states. At that point, there will be no reason for blue states not to adopt the tactic to condemn all sorts of things that will make conservatives howl. If this is the new normal in the legal world, then so be it -- and all bets are off. At that point, giving them a dose of their own medicine will be the only way to protest the tactic itself -- in the hopes that sooner or later the Supreme Court will come to its senses and declare the tactic itself unconstitutional.

But we aren't there yet. So I hope Newsom is just sending a signal and is not actually serious about pushing Democrats in the legislature to actually pass such a law right now. If this is just a political message to the rest of the country -- and to the six conservatives on the Supreme Court -- then that's somewhat understandable. There will be consequences if the high court does approve this radical method of policing laws, Newsom is saying. That's a worthy message to send. But until we get to the point of this scheme being declared constitutional, actually passing laws mirroring the Texas one is a bad idea. If you think their law is wrong, then passing a similar law is just not the way to go. At least, not yet.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

12 Comments on “Gavin Newsom Steps Onto A Very Slippery Slope”

  1. [1] 
    John M wrote:

    When people talk about a new American Civil War, this is the way it will look if it happens. NOT with actual guns and street fighting, but with a DELUGE of lawsuits. Unless it's squashed quickly, the 60+ lawsuits alleging voter fraud after the 2020 elections will look like child's play by comparison.

    And Lest Conservatives think they can get away with any electoral shenanigans in 2024, like denying Democrats legitimate certification wins... just remember Liberals can take to protesting in large rallies too... If the summer of so called ANTIFA and BLM protests had Republicans shaking in their boots, imagine how much worse it would be if say Georgia or Wisconsin threw out millions of Black and Brown votes from a major city like Atlanta or Milwaukee just to hand a Republican a win.

  2. [2] 
    John M wrote:

    By the way Michale, you were WRONG before and you will be WRONG again, about Democrats and their election prospects. Biden's economic record is already far better than Trump's, with greater and faster economic growth, and lower unemployment numbers. In fact, unemployment is so good, it is showing low numbers that have not been seen in 59 years.
    Democrats need to hit Republicans over the head with the news, constantly and repeatedly.

  3. [3] 
    Elizabeth Miller wrote:

    John,

    Democrats need to hit Republicans over the head with the news, constantly and repeatedly.

    And, yet, they never do.

    I have not once heard any Democrat use the phrase Republican cult of economic failure since it was coined by David Fiderer more than a decade ago.

    Why is that?

  4. [4] 
    Chris Weigant wrote:

    LizM -

    OK, that's a pretty good phrase. I will check it out when I have some time... made it through May, charging forward into June (in preparation for this Friday's column...)

    Hey, evereyone -

    Get your nominations in NOW, the window's closing fast for Part 1. Decisions will be made soon, so get any suggestions for the year-end awards posted in the proper place:

    http://www.chrisweigant.com/2021/12/06/nominations-open-for-year-end-awards/

    :-)

    -CW

  5. [5] 
    Elizabeth Miller wrote:

    Chris,

    The only one, other than David Fiderer, who has come close to calling out the Republican cult of economic failure with the same style and finesse was none other than Timothy F. Geithner, then Treasury Secretary under President Obama.

    He sure knew how to lambaste the Republicans on their economic policy fantasies, among other Republican nonsense. His testimony on multiple occasions before congress during the aftermath of the 2007/08 financial crisis were quite memorable. I really miss that guy!

  6. [6] 
    Chris Weigant wrote:

    LizM -

    Good point.

    -CW

  7. [7] 
    Don Harris wrote:

    This is just one small symptom of a bigger problem with the legal profession.

    What should be done is that people that want to be in the legal profession should have to accept that the nature of their job requires that they do not get to operate their profession as a free market enterprise.

    Lawyers should be paid a set fee for their services from an agency that pays the lawyers with people needing legal services paying into that agency based on what they can afford to pay.

    The punitive damages in cases like this and other cases would pay into the fund instead of to the person suing and only actual damages would go to the people suing (which would not apply in the case in the article as the person suing would not be suffering personal damages).

    If you question the need for this, just check out Ralph Nader's recent episode on the Boeing settlement and the amounts the lawyers are getting compared to the amount the victims are getting.

  8. [8] 
    Elizabeth Miller wrote:

    A cursory look at the last few decades will demonstrate that Republican administrations have been very good at creating economic messes - some on the order of magnitude of the Augean Stables, no less - while Democratic administrations are left to clean them up.

    Now, Democrats can take their fair share of the blame for harmful economic policies but there is no doubt about which party has tried to act more in the interest of building the middle class, the backbone of any thriving nation.

    I'll never forget a chat I had with a guy about US politics just before the 2016 election. He thought Trump was just the worst but he said Republicans are better for the economy. I which point my rant about the Republican cult of economic failure began in earnest. Heh.

  9. [9] 
    Elizabeth Miller wrote:

    Hey, Don, get off of my cloud!

    :-)

    Sorry, couldn't resist.

    https://unzippedkw.ca/

  10. [10] 
    Elizabeth Miller wrote:

    Or, to be more precise ... Hey, hey, Don, Don ... get off of my cloud!

  11. [11] 
    C. R. Stucki wrote:

    John M

    Re the 'great unemployment stats', those numbers as bogus as the CPI/cost-of-living, gov't-generated stats., and it's not even a partisan thing. The bureaucratic definitions make the numbers meaningless.

  12. [12] 
    John M wrote:

    Stucki funny isn't then how those same numbers are denounced as being FALSE when they show Democratic Presidents presiding over a roaring economy and praised as TRUTHFUL gospel when they show Republican Presidents doing great economically, usually by the same people. I wonder why that is? Maybe partisan bias on behalf of conservative Republican right wingers has something to do with it?

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