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Behind the new wave of laws modeled after the Texas anti-abortion law


This week, Florida's Republican Governor Ron DeSantis announced a new bill that would let private citizens sue school districts they believe are teaching critical race theory. Days earlier, California's Democratic Governor Gavin Newsom promised to let private citizens sue anyone who violates the state's assault rifle ban. Both of these are called private enforcement laws. What's unique about them is not what they ban but who can enforce them. Both are modeled after the controversial Texas anti-abortion law SB 8. That law empowers private citizens, not government officials, to bring lawsuits against violators. Critics say these laws strip away protected rights and are designed to bypass court challenges.

To learn more, we've called Jon Michaels, a UCLA law professor who studies this type of legislation. Professor Michaels, welcome.

JON MICHAELS: Thank you.

PFEIFFER: Would you start by explaining to us the history of these laws, or why were they created?

MICHAELS: So the original history of private enforcement laws were largely in support of government objectives to promote and protect the interests of various civil rights plaintiffs. Essentially, what that means is that people who are discriminated under the law for housing, for education, for employment could bring suit largely in conjunction with or separate from the government to protect those rights.

PFEIFFER: Could I clarify, though, why the laws were originally created? So one of the examples you gave us is discrimination - is housing. Is the reason that a private citizen should be able to bring that is only the private citizen would know they're being discriminated against by, say, the landlord? So the private citizen should have the right to sue. Is that the idea?

MICHAELS: Yeah. So that's at least half the idea. So half of it is you are the best person to know when you're being discriminated against, and you have the right incentives to bring that suit. The other half is the government has limited resources, so it's a way that the government can extend its regulatory reach in a way that was - again, it was limited. It was confined because the only people who could bring those suits are the ones that suffered a personal injury. But what happens in these suits is any parent or any individual - the Texas one is anyone anywhere who just finds out about an abortion can bring a suit. So there's no bounded world. There's no kind of set-up, defined plaintiffs, as it were.

PFEIFFER: Let's talk more about the present.


PFEIFFER: What are examples of states using these laws to target things other than abortion?

MICHAELS: So guns is the first area. And so in California - and now there seems to be at least bills being proposed in Illinois that look similar to what California proposed last week that are targeting gun manufacturers and gun sales infrastructure. The California law is not directly - or not perfectly analogous to Texas, but it's a similar move in a similar direction that basically tries to deter and chill a certain type of market transaction in the same way that the people who are most targeted or directly targeted in the Texas case are the facilitators of abortion, not the individuals seeking the abortion. It seems to be a shot across the bow at not just Texas but also a Supreme Court to see if the Supreme Court would uphold a law that essentially unleashes kind of private lawsuits against the gun industry in the same way that the Supreme Court has unleashed private lawsuits against the abortion health care infrastructure.

PFEIFFER: Now, you are based in a very blue city in a very blue state. How do you think your view of these laws might be affected if they were mostly aimed at promoting more liberal causes?

MICHAELS: As my colleague David Noll and I have written, we are unenthusiastic about these types of private vigilante suits, you know, regardless of the political stripe, so I don't think this is a prudent policy by California. I don't think it would be prudent public policy if New York started to provide private rights of action against employees seeking religious exemptions from vaccines, even though I am generally skeptical of religious exemptions for vaccines. I don't think the state of Hawaii should go after campaign finance bundlers, even though I am against - I think there should be greater regulation of campaign finance bundling - because I think it's trying to create, again, a private litigation where there should be public solutions.

PFEIFFER: Now that Texas has basically provided a template for how to write this kind of law, do you expect a lot of copycat laws to be written?

MICHAELS: I do. I don't see a reason why states that are annoyed or bothered by a particular constitutional default position such as, you know, the case called Citizens United, which essentially makes it fairly difficult to regulate the campaign expenditures. Why they wouldn't create some kind of state law that targets bankers or bundlers or a host of, like, superdonor events, I just don't - I don't understand why this could not be replicated. Blue, red, progressive, libertarian, liberal - it's - creates an opening where the court is, in some ways, unless it's going to pick and choose based on winners, if it's going to apply it neutrally, it creates a space where the Supreme Court's word will not be the final word in reality because these private lawsuits are just going to chill all sorts of constitutionally protected behaviors.

PFEIFFER: Do you see any way to stop the spread of these laws?

MICHAELS: I think once the court green-lights a legal vigilante template of the sort that Texas has created, the incentives for other states to copy them is so great. I don't know how they would foreclose - suddenly close the door on this. I just don't see the basis for doing so. I mean, again, we may find that the court says, oh, well, Texas was special, and California is different because we like guns, and we don't like abortions. Or they'll say something a little bit more cagey than that. And it may ultimately kind of work itself out that it becomes a one-sided tool, an asymmetric tool that only red states can marshal because the Supreme Court favors red-state policies. But until we're at that point, I don't see any reason why blue or red states would stop doing this.

PFEIFFER: That's Jon Michaels, a law professor at UCLA. He studies what are known as private enforcement laws. Professor Michaels, thank you.

PFEIFFER: Thank you. Transcript provided by NPR, Copyright NPR.