Category Archives: Law: Constitutional Law

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As a decision by the D.C. local courts is not binding precedent anywhere else, the issue appears open at the federal level.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).

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A reader writes in to say,

You MUST read Jane Mayer's “Outsourcing Torture” in the New Yorker. Get a load of what Yoo's saying now:

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation¡'s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn't have the power to “tie the President's hands in regard to torture as an interrogation technique.” He continued, “It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bush's victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was “proof that the debate is over.” He said, “The issue is dying out. The public has had its referendum.”

In other words, “a vote for Bush is a vote for torture.” Jesus H. Christ, he actually SAID it.

As Constitutional doctrine it's not just offensive, it's also fairly silly. Congress has several Article I powers, not least the power to regulate the armed forces, which make it clear that it has the power to prevent torture. And then there's the power to implement treaties, which the Constitution itself says are the highest law, equivalent to the Constitution itself….

(Note to fellow lawprofs — who ever thought the right wing would be embracing Ackerman's theory of amendment via 'constitutional moments' so quickly?)

Peter Shane has a cautionary article in today's Washington Post. In Usurping the Voters, Prof. Shane conjures up a scary hypo based on a close reading of Bush v. Gore,

Under that decision, there is no guarantee that the electors who are decisive in choosing the next president of the United States will themselves be selected by the people of the United States. That's because the justices ruled in that case that state legislatures have unlimited authority to determine whether citizens in their respective states shall be allowed to vote for president at all.

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States,” the court said, “unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”

Imagine, now, a state in which the same party controls both houses of the legislature and the governor's office. There would presumably be no partisan impediment to the state legislature, with the governor's approval, deciding that the majority party in state government shall control the state's electoral vote, regardless of any popular vote in the state. If the Supreme Court's declaration is an accurate statement of the law, there would not be any legal impediment either.

The impedement of course is, as he notes, “outrage” but look how far that's gotten us in the last four years…

Eric Muller, back from what looks like a great vacation, has some interesting things to say about how the Guantanamo, Hamdi, and Padilla cases amount to a repudiation of the basic thesis of Chief Justice Rehnquist's book on civil liberties in wartime, All the Laws But One.

Since the supreme court cares about the quality of blocking and filtering software, it may be appropriate to report that SiteCoach, the blocking software used on the internet kiosks in the lobby of the Amsterdam hotel I am staying in blocks Atrios for using the f-word, and the Volokh Conspiracy for “Forbidden Keyword free sox”. Actually, the “o” in that last should be an “e”—I'd post it more clearely, but that would just ensure I couldnt access my own blog any more.