Judicial Doctrine of Irreparable Harm

By Paul Gable

Buried in a decision yesterday in which the U.S. Supreme Court allowed a restrictive Texas abortion law to be enforced, while the constitutionality of the law is decided, is the concept of irreparable harm to states.

Specifically, the concept is stated from a 2013 Supreme Court decision in Maryland v. King, “Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury (harm).”

In the Texas abortion law decision by the 5th U.S. Circuit Court of Appeals and upheld temporarily by the Supreme Court, the concept was expanded to include the concept that anytime a state acts as an appellant it is automatically acting in the interests of the all the people.

Interestingly, this concept was argued before the New Jersey supreme court in its recent same sex marriage case. The court, however, said the state failed to demonstrate irreparable harm in its arguments before the court.

Disregarding abortion, same sex marriage, or DNA collection, which was the issue in the Maryland v. King case, this concept is dangerous.

For example, what if a state passes a law that says a private property owner must sell his land to a developer whenever the developer proposes a larger tax base development on the land?

Impossible? Essentially that is what happened in New Haven, Connecticut a few years ago.

To argue that a state will suffer irreparable harm whenever its law is enjoined is absurd.

Just because a state passes a law doesn’t mean that law is right or constitutional by definition. But, that is the form judicial activism is taking at the Supreme Court level these days. And, it’s being taken by supposedly conservative judges.

I suppose this concept fits in with the idea of state’s rights that these supposedly conservative judges adhere to. I guess they missed the class on John Marshall in law school.

Somewhere John C. Calhoun is smiling. Irreparable harm is in. Can nullification and secession be far behind?





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