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MSNBC Jose Diaz-Balart Reports November 1, 2021 14:20:00

Prosecutor or state executive official. that s long-standing law. the issue here is different because it s private enforcement in state courts. and that raises a novel issue for us about how to apply ex parte young. the exparte young principle is that those who enforce the law can be injoined or can be sued, preenforcement suits in federal court. but as justice thomas points out, in the two paragraphs at the top of page 163 at ex parte young, state courts seem to be carved out from that. so that s the tension. i think you identified it. the principle of ex parte young versus the language at the top of 163. for me, that s been a real sticking point in trying to sort this out. one answer you didn t give is that subsequent law says that when state courts entertain ....

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MSNBC Jose Diaz-Balart Reports November 1, 2021 14:54:00

And why doesn t ex parte young point the way towards, not precisely, but point the way towards an answer? two points. the latter being what you re describing would be something of an expansion of ex parte young. this court noted that an injunction against the courts themselves through the ex parte on device would have been a violation of our scheme of government. well, this court said specifically speaking about expansion from the post judgment creditor s ability to destrain a debtor s assets moving to a prejudgment creditor s ability to do so, that was too great of a novel ek quitable innovation for this court to permit itself to innovate. to do something that would have been understood in ex parte young in the very same opinion as the violation of our whole ....

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MSNBC Jose Diaz-Balart Reports November 1, 2021 14:41:00

Adverseness issue may be more serious with judges, and therefore you focused on the clerks. is that that s how i read your reply brief. because it was noticeable to me. i think that s right, your honor. that it is easier to say that we are adverse to clerks, because the filing of the lawsuits, which is the point here, to chill the constitutional rights is the filing of the lawsuit and that creates sharp adversity to the clerks, were just performing their ministerial duty and not adjudicating anything. and to follow-up on justice breyer s question, he mentioned the floodgates issue which the state has raised. and obviously, there are already a lot of ex parte young courts, but the claim by texas is that this will increase the load. give you another chance to respond to that. i don t think that s correct. this is an exception, this is unprecedented. ....

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MSNBC Jose Diaz-Balart Reports November 1, 2021 14:11:00

Effect, even if an abortion provider wins a case about that abortion. they still have to continue to face suit after suit after suit, because there s no preclusive effect. it turns the provider or the abortion supporter into a permanent defendant well, council, i don t want to interrupt your answer to justice sotomayor, but just to pick up on a point that you made. and maybe you can clarify this before you finish answering her question, if you haven t finished already. isn t it the case that the texas constitution requires a plaintiff to show injury, in fact, in accordance with the same standard that applies in federal court? one of the first points you made, i think maybe the first point, was that sb-8 allows any person to sue, whether or not that person has suffered any injury. is that accurate under texas law? i think the answer is unclear, but in the united states case, in the preliminary ....

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MSNBC Jose Diaz-Balart Reports November 1, 2021 14:19:00

It s an enforcer, being used as an enforcer. i agree with that, your honor. but your honor, here, the point is that regardless of the outcome of the case, it is the threat of filing an unlimited number of cases in counties all across the state where there is no preclusive effect, and where the state has even made it where are difficult to get an attorney, by making attorneys liable for fees for the other side s fees. mr. hearron all of that creates a threat keep going, i m sorry. the combination of all of those factors together creates a chilling effect and that under this court s presence is an irreparable injury. can we talk about ex parte young a little bit. you make the point correctly, that usually, you can get preenforcement review in federal court when it s enforced, a law is enforced by a state ....

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