Well, it is really an interesting, interesting question. And, weirdly, it is sort of in my bailiwick because I was a specialist in the Fourteenth Amendment’s Due Process Clause, which is where a lot of the issues here lie.
Two issues are presented by the Texas law, it seems to me. First is whether one can impair a constitutional right in this way – that is, assuming Roe v. Wade remains good law, which is not an assumption I’d be comfortable extending to the end of next year, can the law nonetheless allow private action to impair it? Second is whether there is anything irregular about the process itself: is there somehow a denial of due process to those subjected to these types of lawsuits, assuming for the sake of this question that there is NOT a separate, substantive constitutional right impaired?
On the first question, I don’t think the answer’s very hard. If something is a constitutional right, then it may not be impaired by state action. Is a private lawsuit, though, “state action”? It is when the court does its bit, and we have cases on this. Two come to mind right away.
First is Shelley v. Kramer. There, the issue was private racial covenants in real estate conveyances: if the title says that this land shall never be owned by a black person, and if this covenant is otherwise properly recorded and enforceable, may a neighbor sue to invalidate the purported title of a black purchaser? The case was decided in the 1940s, and of course at that point there were NO anti-discrimination laws worth a damn governing private behavior, so there clearly was nothing at all illegal about a seller of real estate making such a covenant a condition of the sale. But essentially what the court says is that the ENFORCEMENT of that covenant by judicial action implicates the state. It is state action, and it denies a person the equal protection of the laws, and it therefore may not be done. The covenant, as a sort of pure abstract contract, is “valid” but it is not enforceable.
Second, New York Times v. Sullivan: a purely private action for libel is all that’s involved. But the court holds that because of the First Amendment, ordinary traditional standards of libel go too far in holding a person who may have mistakenly published something false responsible, where a public figure is involved. Instead, the First Amendment demands a higher standard. Again, the only state action is the court’s own judgment, but this is enough to make the constitutional limitation apply.
I think that under Shelley v. Kramer and NYT v. Sullivan it’s clear: a right of private action which has the effect of destroying access to a constitutional right isn’t going to be upheld. This is distinct, by the way, from the issue of HOW you challenge such a law. It may be that the Supreme Court will not let an injunction against the law issue, for all sorts of procedural reasons and whatnot – but it would certainly be the case that if a person were subjected to such a judgment by a lower court, he should be able to successfully argue on appeal that the law is unconstitutional and that the judgment based thereon cannot stand.
So, while the circus surrounding the Texas law is sad, bizarre and a bit of a mind-bender, I think that it’s clear that so long as Roe v. Wade remains good law, no such law can be enforced. If Roe v. Wade falls, as it appears almost certain to do, however, then we have some very different questions about the nature of remedies and the appropriateness of these sorts of processes.
It is fair to say that traditionally we have had an aversion to the idea of people being able to bring an action without having a stake in the controversy. We generally couch the legal questions here in terms of “standing,” where we ask who, if anyone, stands in the position of being injured by the challenged conduct so as to have a right to relief. While it is common for people who are unhappy with an adverse ruling on standing to object that the court is merely avoiding the real issues, it is indeed important that cases and controversies such as our courts address be real cases involving real disputes where the person suing actually is the possessor of some right or interest which has genuinely been infringed. Trump complained about this when the bizarre Texas lawsuit challenging the electors in other states was rejected by the Supreme Court, for example, but the standing analysis there was quite right.
A merely prospective or hypothetical injury, or an injury to public interests of a generalized nature rather than to personal interest, is usually not sufficient to grant one standing. If my neighbor fails to keep his gun in a safe, and this makes me nervous, I probably don’t have standing to do anything about it; the injury to me is prospective, hypothetical, and the same as the injury to everyone else in the public at large who might suffer some consequence. If I get shot because he negligently allowed others to get to the gun, on the other hand, I do clearly have standing to sue for damages: the injury is now no longer prospective or hypothetical and the consequences of it are known.
Now, standing is usually definable by statute – legislative power there is quite broad. So there are cases where standing is granted to individuals for injuries to the public interest. Even there, though, there is usually SOME requirement that the plaintiff be within a class of injured persons. So, for example, the Clean Water Act can enable individuals in a community to bring suit for injury to the public from water pollution, even without establishing that they have suffered any concrete harm as a result of that pollution. And while we often justify civil lawsuits for civil rights violations by saying that the interests vindicated go beyond the interests of the parties themselves, we ordinarily DO require that the individual bringing the action be someone who has sustained an injury. We don’t let you go to court and say, “well, the police in my town often use excessive force, and this upsets me, so I want the court to award me relief.”
As a short aside: this is why it is so ludicrous when people say the “ACLU” sued the Dover Area School District. The ACLU would never have had standing. As mere members of the general public, not impacted by the District’s decisions, the ACLU was not injured by the District’s actions and was powerless to do anything itself. Only individuals who were actually injured by the District could sue. The ACLU assisted those people, but the ACLU was not the plaintiff: the aggrieved parents and students were the plaintiffs.
So: a statute can take someone who would have a debatable argument for standing and elevate his argument to a certainty by defining who may sue to correct the violation of the law. But what I cannot really think of is a single case where the plaintiff is granted standing despite having literally NO stake in the violation at all, and that’s one of the weird things about the Texas law.
The thing that comes the closest, that I can think of, is a relatively unusual and obscure thing we call a Qui Tam action, where a person is able to step into the shoes of the government and assert the government’s standing to vindicate the public interest. This isn’t done much. The most famous case was the Agnew case, where taxpayers sued Spiro Agnew on behalf of Maryland to recover the bribe money he’d collected on public contracts. Ordinarily, to get there you’ve got to have some kind of enabling statute and then there have to be some predicate facts. I recall looking into a possible qui tam case years ago and it seems to me that under the federal False Claims Act one had to first go to the US Attorney and ask the US Attorney to bring a lawsuit to recover money which the federal government was owed; the US Attorney had to decline to do that; and then the individual could step into the shoes of the USA, sue the wrongdoer, and recover the money. The court would then give the judgment to the government but the private plaintiff would get a kind of “finder’s fee” for getting the government’s money back.
But may the government, rather than creating a qui tam type cause of action, simply farm out its enforcement power altogether? May it declare that there’s a $10,000 fine for an illegal abortion, collectible by the first person to get to the courthouse with a lawsuit, and that the state will itself always decline and so no qui tam procedure need be followed? I am inclined to think that it can’t, at least where the nature of the alleged public interest is not an injury to private interests in which the plaintiff is at least a member of some adversely-affected group. I have to confess that I have no case law to cite here. But I think that a novel law like this is liable to meet with a successful novel Due Process Clause challenge: that Due Process in the Fourteenth Amendment sense does not allow a person to be subjected to a barrage of lawsuits from people having literally no cognizable stake in the matter in controversy at all. We would not permit people unrelated to a murder victim to sue a murderer for damages. We would permit the state to bring criminal charges, and we would permit the estate and the survivors to bring appropriate claims for damages, but we would not permit someone who says that the murder upset his feeling of personal security, or made him cry, to recover damages for that. I am inclined to think that your Due Process rights impose SOME constitutional minima on the question of who may be granted standing to sue you (indeed, I have the vague feeling that I have seen statutory attempts to create standing rejected by courts; but I cannot remember the context).
Now, let’s turn and apply this to gun laws. Undoubtedly, my first question remains relevant: to whatever extent one has an actual constitutional right to the conduct in question, I do not think that any private right of action can be created which infringes that right. Such creation of a private right is state action, and recognition of that private right in a lawsuit in the form of a judgment is also state action. So, for example, since the Supreme Court has indicated that the Second Amendment does establish an individual right in private gun ownership of some sort, if the State of California passed a law that said that if you can prove your neighbor possesses a gun, he owes you ten thousand dollars, that’d be unconstitutional.
But as in such things as the Clean Water Act, a statute might elevate a generalized public interest in safety which would NOT create standing to a particularized right of action on the part of an individual, by giving that individual statutory standing. I suspect that this would present no problem so long as the individual had SOME interest, even if only as a member of the general public, in the matter in issue. So, let’s say that the State of California passes a law that says that under most conditions, guns kept in residential dwellings must be locked in a safe, and that the neighbors of a person who fails to do this may sue for injunctive relief (to compel the proper behavior) and for statutory damages of $10,000 if they can prove that the law has been violated. There is no constitutional right to being exempt from a safety regulation, as a general rule, and I cannot see why it would be any different here; nor, I think would specific requirements about the safe storage of firearms plausibly be deemed to infringe the Second Amendment, unless they were absurdly excessive (e.g., your gun may never be removed from your gun safe under any conditions). Here, we have the sort of “injury” which we would normally consider somewhat prospective and hypothetical, but it can also be said that I truly AM safer if my neighbor stores his firearms properly; my interest, without the statute, would probably not allow me to sue, but with the statute recognizing my interest in my safety as an interest to which the defendant’s conduct causes a redressable injury, I now do have standing. I think the crucial difference here may be that in the Texas case, the plaintiff has no redressable injury at all; in the hypothetical California case, the plaintiff has an interest in the outcome all along, with or without the statute, but the statute gives him the procedural right to do something about it.
I should emphasize that this is a genuinely weird question. The propositions I have offered here are not grounded in how courts have resolved similar questions, and I’m not really aware of any case law that bears very directly on the question. All I can say is that I spent a couple of decades in civil rights litigation with a particular emphasis on the procedural aspects of the Due Process clause and that what I am giving you are, though speculations, at least the speculations of a legitimate specialist.
Now, as to practical effect: I think that attempts to manage behavior this way lead to chaos. There was an expression in some case we read in first-year law school an age ago, deploring “endless litigation and confusion worse confounded,” and I have to say that the idea of doing things in this fashion makes me feel like I am staring into that particular abyss. But, as we have seen, in a polarized environment there are people who welcome the abyss if they are pretty sure that the fall into it will be in what they consider a favorable direction. The Texas law shows as much. Why, if Ragnarok may be commenced for the sake of anti-abortionists, may it not be commenced by anti-gun people? I think the anti-gun people probably have the better argument, at least if they craft the statute carefully.