The Amazing Reappearing Statute

Both Howard Bashman and Orin Kerr ask what happens to a statute that is declared unconstitutional if and when the Supreme Court later reverses itself on the same issue. This is a very relevant question regarding the future of abortion bans given the likelihood of more anti-Roe v. Wade Justices in the near future.

First principles could be invoked for either side.

Ideas of (small-r) republicanism and popular sovereignty suggest that the statute must be re-passed by the legislature before it can take effect. The court's first decision striking down the law short-circuited any political activity that might have been directed towards repeal — why bother repealing a dead letter?

On the other hand, a formalist view — and we don't in our law recognize desuetude, so we have a somewhat formalist tendency — would suggest that every statute on the books is in force except those blocked by court action. Remove the block, the statute springs back into action. In other words, the second decision erases the first as if it never was (and then only due process prevents charges filed for any violations of the rule during the period it was thought invalid?).

Orin asks if there are any cases on this, and indeed there is one, although somewhat aged, leading case, that of Jawish v. Morlet, 86 A.2d 96 (D.C. App. 1952), heard by what was then the Municipal Court of Appeals for the District of Columbia.

I've reproduced the full text below, but the thrust of it is captured in this sentence: “And since the [first supreme court case] never was the law, its only effect, to use the language of Justice Vinson in the Warring case, was 'that just about everybody was fooled.'” As a result, the old law springs back into bindingness.

As a decision by the D.C. local courts is not binding precedent anywhere else, the issue appears open at the federal level. It seems to me that this sort of thing is actually arguable either way but that the length of time between the two decisions is highly relevant. The longer the gap, the stronger the argument for not reinstating the decisions by fiat, for the stronger the argument that but for the first court decision coalitions would have formed to demand repeal.

UPDATE: Stuart Buck weighs in with more formalist arguments as to why Jawish provides the correct answer:

One thing to clear up right off the bat, however, is the common misconception that federal courts have the power to “strike” down a law. We usually imagine that a statute, once declared unconstitutional, “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been passed.”191 But this is not technically accurate. Despite such language used by courts and commentators, there is no such thing as “striking down.” A federal court has no power to erase a statute from a state's lawbooks.192 As one prominent scholar said, “No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority.”

To which I can can only say, “well, maybe.” The argument that a court doesn't void a statute, just puts it into a species of legal hibernation is strengthened by the observation that legislatures sometimes repeal statutes held to be unconstitutional, and if the statute were a total nullity, that would be a useless act. But then again, legislatures do useless acts sometimes, so what exactly does that prove, especially since there's no one with standing to challenge the repeal.

It seems to me that on this one, like many hard constitutional questions, how you come out on this one depends on what you consider relevant inputs to the issue. Is it the nature of democracy? A structural view of separation of powers? The underlying goal(s) of the Constitution (whatever you think that is, e.g. liberty)?

Update 2: See also Marty Lederman's excellent comments (broadly agreeing with Stuart Buck), and the interesting remarks of The Greedy Clerk (arguing that for state statutes the answer depends on state rules of decision).

Jawish v. Morlet, 86 A.2d 96 (D.C. App. 1952)

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

In 1918 Congress enacted a law fixing minimum wages for women and children in the District of Columbia. In 1923 the Supreme Court, in Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785, held the law unconstitutional. In 1937 the Supreme Court, in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, held a similar law of the State of Washington to be constitutional and expressly overruled the Adkins case. President Roosevelt then requested the opinion of the Attorney General as to the status of the District of Columbia law, and in reply the Attorney General stated:

'The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute, and that notwithstanding a decision holding it unconstitutional a statute continues to remain on the statute books; and that if a statute be declared unconstitutional and the decision so declaring it be subsequently overruled the statute will then be held valid from the date it became effective.

'It is, therefore, my opinion that the District of Columbia minimum wage law is now a valid act of the Congress and may be administered in accordance with its terms.' 39 Op.Attys.Gen. 22.

Congress never re-enacted the law but did enact amendments to it in 1938, 1941 and 1944. The 1940 District of Columbia Code (unofficial) contains the law, § 36-401 et seq., with the following note of the annotator: 'On the theory that the lastmentioned case (West Coast Hotel case) revitalized the District of Columbia Minimum Wage Law, it is incorporated in this Code.' Enforcement of the law was resumed after the issuance of the opinion of the Attorney General and has continued to the present time.

This action was brought by a woman employee against her employer to recover the difference between the wages she had been paid and the minimum wages fixed under the minimum wage law for such employment. The only defense raised by the employer was that no minimum wage law exists in the District of Columbia. The trial court ruled against this contention and awarded judgment for the employee. The employer has appealed.

The contention of the employer is that the District of Columbia statute was held unconstitutional in the Adkins case, that the effect of that ruling was to make the statute null and void, that the West Coast Hotel case did not operate to revive the statute, and that without re-enactment by Congress no such statute today exists.

Since the days of Marbury v. Madison, 1 Cr. 137, 180, 2 L.Ed. 60, when Chief Justice Marshall, speaking for the Court, declared that 'a law repugnant to the constitution is void,' courts have frequently referred to unconstitutional laws as void, of no force and effect, and as inoperative as if never passed. 'Yet a realistic approach is eroding this doctrine. * * * When a statute is declared unconstitutional it falls because it must yield to the basic, superior law. There is much more reason to argue that the unconstitutional statute never was the law. Yet today even such a statute is an operative fact and decisions made under its color have the blessing of res judicata.' Warring v. Colpoys, 74 App.D.C. 303, 307, 122 F.2d 642, 646, 136 A.L.R. 1025, certiorari denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543, per Vinson, J., now Chief Justice of the United States, citing Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329.

There are comparatively few cases dealing squarely with the question before us, but they are unanimous in holding that a law once declared unconstitutional and later held to be constitutional does not require re-enactment by the legislature in order to restore its operative force. They proceed on the principle that a statute declared unconstitutional is void in the sense that it is inoperative or unenforceable, but not void in the sense that it is repealed or abolished; that so long as the decision stands the statute is dormant but not dead; and that if the decision is reversed the statute is valid from its first effective date. See State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So.2d 804; Pierce v. Pierce, 46 Ind. 86; McCollum v. McConaughy, 141 Iowa 172, 119 N.W. 539; Allison v. Corker, 67 N.J.L. 596, 52 A. 362, 60 L.R.A. 564; Shephard v. City of Wheeling, 30 W.Va. 479, 4 S.E. 635.

This principle is in accord with the principle 'that a decision of a court of appellate jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law but that it never was the law.' Ruppert v. Ruppert, 77 U.S.App.D.C. 65, 68, 134 F.2d 497, 500.

If the effect to the West Coast Hotel decision is that the decision in the Adkins case never was the law, it follows that the District of Columbia Minimum Wage law never was unconstitutional. And since the Adkins case never was the law, its only effect, to use the language of Justice Vinson in the Warring case, was 'that just about everybody was fooled.' Our conclusion is that the Adkins case did not repeal or abolish the District of Columbia Minimum Wage law and when the effect of the Adkins case was removed by the West Coast Hotel case, the law was effective without re-enactment by Congress.

Affirmed.