Pre-Enforcement Constitutional Challenges

Pre-Enforcement Constitutional Challenges

The Court’s decision today in the Texas SB8 case, Whole Women’s Health v. Jackson , has many moving parts. But the heart of the majority’s practical explanation for why the result makes sense is that federal law has never guaranteed a right to a pre-enforcement constitutional challenge to a law. In particular, when it comes to civil lawsuits (including ones that implicate constitutional rights, such as the Free Speech Clause, the Free Exercise Clause, the Second Amendment, and more), potential targets must often wait until they are sued and then raise the Constitution as a defense, rather than by suing up front. Preenforcement challenges to governmental enforcement do happen, because one can seek an injunction against the enforcer. But when it comes to tort liability in which there could be a wide range of potential plaintiffs, such preenforcement challenges are usually unavailable, since there’s no particular person one can sue up front. Again, constitutional rights can still be vindicated; they just have to be raised defensively in response to a lawsuit, rather than preemptively in the rightsholder’s own lawsuit seeking an injunction. We see this in many free speech cases, such as New York Times v. Sullivan and Snyder v. Phelps: When speakers feel chilled by unconstitutionally overbroad tort rules related to, say, libel ( Sullivan ), or intentional infliction of emotional distress ( Snyder ) , or the right of publicity (an area that remains unresolved), they generally need to raise the defenses after they are sued—the New […]

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