united-states constitutional-law texas texas-sb8
Can a state governments outsource actions that are illegal for the state government to perform?
<p>There is some history behind oppression by proxy: both Nazis and Communists sponsored pro-government militias that committed violence on the respective governments' behest while the governments denied direct involvement. Can state governments do that in US?</p>
<p>The trigger for the question was the Texas &quot;abortion ban&quot;, which is not really a ban but rather an open season for private citizens to sue abortion providers at the Texas government behest, on the state's dime, and in the state's courtrooms, while the state would deny direct involvement and therefore deny Roe v. Wade violation. Because, apparently, Texas v. Planned Parenthood would be illegal, but John Smith v. Planned Parenthood, requested and sponsored by Texas, is not.</p>
<p>This question is not about the particulars, not about abortions, but rather about how far state governments can go in encouraging and sponsoring actions that are illegal for the state government to perform.</p>
<p>Can Texas declare: &quot;any citizen will be paid $10k for filing frivolous lawsuits against abortion providers, regardless of merit or standing,&quot; and then claim that Texas doesn't prosecute abortion provider? Apparently, SCOTUS has no problem with that.</p>
<p>Can a state declare: &quot;any violence against <code>insert a group here</code> shall not be prosecuted,&quot; which is pretty much what Nazis and Communists did, and then claim non-involvement in the violence that would ensue?</p>
<p>Can NY or CA decriminalize violence against gun owners and <a href="https://www.theverge.com/2012/12/25/3802960/new-york-newspaper-posts-map-with-names-addresses-of-gun-owners" rel="nofollow noreferrer">publish their names and addresses</a>?</p>
<p>Can Texas offer $10k per abortionist's scalp?</p>

<blockquote>
<p>Can a state declare: &quot;any violence against <em>insert a group here</em> shall
not be prosecuted,&quot; which is pretty much what Nazis and Communists
did, and then claim non-involvement in the violence that would ensue?</p>
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<p>This would be a violation of the Equal Protection Clause.  <a href="https://www.justice.gov/crt/guidance-regarding-use-race-federal-law-enforcement-agencies" rel="nofollow noreferrer">https://www.justice.gov/crt/guidance-regarding-use-race-federal-law-enforcement-agencies</a> goes into exhaustive detail on the topic of what may constitute an illegal abuse of selective enforcement.  A key quote is highly relevant to your question:</p>
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<p>[T]he Constitution prohibits selective enforcement of the law based on considerations such as race.</p>
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<p>There is a lot of case law on this topic.  This is frequently discussed in the context of race (especially profiling).</p>

<blockquote>
<p>Can Texas declare: &quot;any citizen will be paid $10k for filing frivolous lawsuits against abortion providers, regardless of merit or standing,&quot; and then claim that Texas doesn't prosecute abortion provider? Apparently, SCOTUS has no problem with that.</p>
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<p>The question isn't not merely whether SCOTUS &quot;has a problem&quot; with it, but what recourse is available. When it comes to the Texas law, no one has been directly harmed by it so far, so the case for standing is rather difficult. If someone were to have a lawsuit filed against them, there would be a much stronger case for standing. SCOTUS is the highest court in the land, but that just means that other courts are obligated to follow their rulings. Addressing actions by the legislative or executive branches is more complicated. It's generally accepted that actions by agents acting on behalf of the government are treated as if the government were doing them, but even if the government were harassing people participating in abortions, it would not be enough to argue that this is illegal. One would also have to make an argument as to what recourse SCOTUS is authorized to grant.</p>
