Texas Attorney General Ken Paxton has sent a notice of supplemental authority to the U.S. Court of Appeals for the Fifth Circuit detailing how Texas’s unanimous victory yesterday at the U.S. Supreme Court in DeVillier v. Texas further supports Texas’s defense of S.B.4. 

In DeVillier, the Supreme Court sided with Texas and directed plaintiffs to pursue redress through existing state law “[a]s Texas explained” rather than directly under the U.S. Constitution. Further, the Supreme Court explained that “[c]onstitutional rights do not typically come with a built-in cause of action,” but instead “are generally invoked defensively” absent “an independent cause of action designed for that purpose” by Congress or by state law.

Here, the United States has sued Texas challenging S.B.4, even though Congress has not enacted a cause of action to allow such a suit. Texas’s notice to the Fifth Circuit accordingly explains: “Like many cases before it, DeVillier rebuts the district court’s theory that the federal government can offensively enforce another constitutional provision—here, the Supremacy Clause—absent a statutory cause of action enacted by Congress.” 

Texas’ notice to the Fifth Circuit also emphasized the U.S. Supreme Court’s order from Monday evening in Labrador v. Poe, in which the Court stayed a pre-enforcement, facial injunction of an Idaho law similar to the injunction against Texas’s S.B. 4. In Labrador, a majority of the Justices cast doubt on the legality of such sweeping statewide injunctions. 

Texas’s notice explains: “[T]he district court facially enjoined every application of S.B.4—even though it can never be enforced against Plaintiffs and without meaningful severability analysis. Labrador confirms such an extraordinary order raises serious federalism and separation-of-powers concerns[.]”

To read the notice, click here.