When, If Ever, Should a Legislature Be Able to Enact a Law that it Knows (or Should Know) that Courts Today Would Invalidate?

Posted in: Government

From the Right and from the Left, legislatures are considering—and in many cases enacting—laws that have no meaningful chance of surviving judicial challenge under the U.S. Constitution, at least not for the foreseeable future. For example, the spate of recent “heartbeat” abortion laws—which purport to flatly ban first-trimester abortions (say, as early as six weeks after conception or earlier still)—surely constitute “undue,” and thus unconstitutional, burdens under current Supreme Court doctrine (Planned Parenthood of Southeastern Pennsylvania v. Casey and its progeny). And even with Justice Kavanaugh’s replacing Justice Kennedy, there is no indication that there are anywhere close to five votes on the current Court to inter Casey (and its predecessor, Roe v. Wade) altogether.

Another illustration, from the other side of the ideological spectrum: the Illinois legislature is now considering a bill to mandate that the board of any corporation whose principal executive officers are located in Illinois have, by 2020, at least one female director and one African American director. This legislative proposal is similar to, but even more ambitious (insofar as it includes consideration of race as well as gender) than, a California law passed earlier this year that mandated the inclusion of women on corporate boards, and about which we wrote a three-part series of Verdict columns.

As we pointed out in Part One of that series, while there is perhaps some “uncertainty over how quotas will fare under [the] intermediate scrutiny” that is applicable to gender-based classifications by government, the Supreme Court has in recent decades quite clearly “frowned on racial floors or quotas under so-called strict scrutiny, in cases such as Regents of the University of California v. Bakke and Richmond v. Croson. Indeed, in Gratz v. Bollinger (a 2003 case involving the University of Michigan’s undergraduate admissions process), the Court struck down the use of race even though government didn’t make use of any formal quota, because the university was nonetheless using race in a way that was too mechanical and rigidly quantifiable.” Because the Illinois proposal (unlike California’s) includes a racial quota alongside the gender quota, there is no reasonable basis for thinking it could be upheld under Supreme Court precedents in place today. (And to the extent the current Court may rethink the permissibility of race-based affirmative action in the coming years, the Court is likely to be more hostile, not more receptive, to such programs.)

So laws like those described above have no reasonable chance of being successfully enforced in the near term. Given that, is there any justification for a legislature to enact them? As we observed:

Governments should not refrain from enacting and seeking to enforce laws merely because “of the possibility that such laws might be deemed unconstitutional,” . . . [insofar as] sometimes the Supreme Court modifies or reverses existing doctrine, and . . . elected leaders are within their rights in passing and enforcing laws to give the Court a chance to do just that (emphasis added).

But, we added: “We think the standard that ought to govern a legislature’s conduct should be” whether the legislature’s enactments “are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”

Under this approach, legislatures should generally refrain from enacting a law that has no reasonable chance of being upheld anytime soon; legislatures ought not adopt regulatory measures purely to send a “political message,” because regulated entities will need to expend time and money to invalidate the measure and terminate or prevent any enforcement. And knowingly forcing individuals or corporations to spend money and devote time to vindicate their clear constitutional rights seems like an independent violation of their rights to due process; persons should not be punished in the form of having to defend themselves in enforcement proceedings that are themselves frivolous.

We added that this stance seemed especially reasonable to us because there are usually other, less punitive, ways for governments to send political “messages.” State legislatures and governors can themselves engage in “government speech,” passing resolutions of what is right and wrong behavior for persons and corporations to engage in. While expressive proclamations do not get as much press as regulatory mandates, neither are they as likely to run afoul of anyone’s constitutional rights.

But one rejoinder to this position we laid out is that a legislature that passes a law that is not (currently) enforceable might do so for reasons that go beyond expression. To be sure, one legislative motive is communicative—the legislature acts to be on public record, to appeal to constituents, etc. (Ironically, enactment of regulation often speaks louder than pure government speech.) But in addition to speaking, the legislature may be seeking to take advantage of current legislative energy, attention, and majority sentiment in favor of regulatory positions that are not constitutionally enforceable now, but that might be in the distant future. And fighting the legislative battle when the legislature knows it can be won is preferable to waiting until a future time when victory is less assured. And the victory today will still be good in the future because most constitutional analysts believe that laws enacted in the past that are enjoined by courts need not be reenacted in the event the courts later change their minds; such laws spring back into effect even as they were dormant for some period on account of judicially imposed limitations. To be sure, such laws can be repealed in the future, but until they are, they remain on the books, ready to be enforced whenever courts permit. And resetting the default today for implementation later is, from the point of view of the legislature, moving the ball forward.

Is there any way for a legislature to capitalize on current legislative momentum to regulate in ways that are not currently permissible but that may be down the road, without infringing the rights of individuals who shouldn’t have to expend resources to invalidate the measures in the near term? What if a legislature, in this kind of situation, added a proviso to its enactment that said:

The legislature understands that this law cannot be enforced under current judicial doctrine interpreting the Constitution. The legislature disagrees with this doctrine, but accepts the notion of judicial review, and the reality that the law cannot—and thus should not—be enforced until such time as there is a reasonable basis for believing that the U.S. Supreme Court might conclude the law is constitutionally permissible. The executive branch is instructed not to seek enforcement of the law until that time, but should do so, consistent with traditional enforcement discretion, after that time.

With such a proviso in effect, could the interests of the legislature—in enacting the law now, rather than having to wait and fight the legislative battles later, when judicial attitudes have changed—be adequately reconciled with the interests of regulated individuals and entities in not having to spend time and energy in seeking judicial invalidation today?

Perhaps. Indeed, in the abortion setting, a number of states over the past decade have indeed enacted “trigger” statutes that prohibit abortions only if Casey and its progeny “are reversed or modified.” We prefer the more generic kind of proviso we identify above rather than triggers that refer to the overruling of particular constraining cases for a few reasons. First, while the latter seem more specific, and thus easier to apply, they themselves often create difficult interpretive questions. For example, what does it mean to “modify” Casey or Roe? We think Casey itself overruled key parts of Roe, but others might disagree. Our general proviso requires good-faith implementation by the executive branch, but so too do trigger laws that refer to specific cases. Relatedly, there is often more than one line of cases that might create current unenforceability. For example, with regard to corporate board quotas, there could be Commerce Clause as well as equal protection problems. The more a legislature tries to identify particular cases that currently serve as roadblocks, the more it risks missing other important ones. Finally, our form of the proviso has the virtue of focusing public attention on precisely the right question—would enforcement be a reasonable attempt to move the direction of law or not—in a way that suggests the legislature is attentive to the requirement that it act for permissible reasons.

One possible reply to provisos or triggers of the kind we describe here is the idea that a legislature should not be in the business of passing laws that have no current, real-world effect. Certainly federal courts are not supposed to decide disputes that are not concrete, in part because we don’t think judges render carefully considered decisions when nothing in the real world turns on them. That is why, for instance, federal judges cannot consider unripe cases.

Should there be an analogous concept of legislative ripeness? That legislatures cannot pass laws that have no real-world regulatory effect for the immediate future because we don’t trust that such laws are properly analyzed and deliberated upon by legislative bodies? Maybe this idea makes sense as a matter of policy in some areas of regulation, but we don’t see much constitutional support for imposing a general ripeness requirement on legislatures. Consider, for example, a related question: how a legislature can help the Court retreat from prior mistaken constitutional rulings. Because of reliance interests, the Court sometimes feels required to stick with past rulings that it itself deems mistaken. And while the Court can send signals that it has misgivings about the prior ruling in order to dampen future reliance, an explicit phase-in of a new rule by the Court—“the constitutional rule is X today, Y next year, and Z in ten years”—might raise serious questions about impermissible judicial “legislation,” because courts are generally thought of as deciding historical facts and applying the law in effect today to them, not shaping new facts and law prospectively. But it is not similarly problematic for a legislature to legislate new rules in the future regarding a phase-in to fix mistakes the Court admits to having made; after all, adopting and phasing in new legal rules is what legislatures are supposed to do.

In a similar vein—one that might implicate ideas about mootness, the analytic flip-side of ripeness—the Supreme Court has suggested that there is no constitutional problem with enforcing (clearly written) laws passed a while ago that have not been enforced for a very long time. Certainly outside the context of criminal prohibitions, the notion that statutes fall into “desuetude” on account of non-use, such that they can no longer be enforced, has been rejected by the Justices. For example, in District of Columbia v. J.R. Thompson Company, Justice William Douglas wrote for the Court over 50 years ago that “the failure of the executive branch to enforce a law does not result in its modification or repeal. The repeal of laws is as much a legislative function as their enactment.” This approach means that stale laws that may not remotely reflect current political and policy sensibilities—and in that sense are not “ripe” legislative measures today—can still be enforced until the legislature sees fit to repeal them. Presumably the rejection of constitutional desuetude has thus far occurred in the context of laws that were once enforced but stopped being enforced—as opposed to laws that were unenforceable when enacted—but query whether this changes the analysis? We express no firm bottom-line positions here, but we think the questions raised by the kind of proviso we suggest are quite interesting.

Indeed, we think this idea of the legislature adopting regulations but staying their implementation has potential virtues outside of the arenas we discuss above. Statutes enacted but that don’t take effect until a change in the constitutional landscape could have an interesting—and potentially useful—impact on cases in which courts count up states for purposes of determining whether a right should be recognized, and in particular for purposes of deciding whether a prior decision accepting or rejecting a right should be overturned. Take capital punishment. Let’s say one state adopts a brand new method of execution. The Supreme Court rules that questions about the level of pain involved and the fact that the method is unique to the single state renders it cruel and unusual. No other state can use the prohibited method. But other states could enact laws providing for the method to be used in the event that the Supreme Court rethinks things. Those not-yet-implemented laws work to inform the Court, next time around, as to whether the method is indeed unusual—without the states having to mount the more dramatic and costly form of protest of actually trying to enforce an unconstitutional law. And the fact that a state would enact a law even though the law can’t (yet) take effect might be particularly good information about the views of the state’s population. At the same time, there is likely to be an additional effect: If states have the option of enacting contingent laws and there emerges a practice of states taking advantage of this opportunity, then the failure to do so might be taken as evidence that the state is perfectly content with the status quo.

And the device could be useful in less high-profile but equally important settings. Where Congress has preempted state laws, states could enact statutes that take effect only if Congress reconsiders the preempting federal enactments. Congress therefore gets to see—and not just speculate about—how states would handle an issue if they were able to regulate; states can signal to Congress that they have the ability to take over regulation in a way that Congress approves—or in ways that would be better than what Congress itself has been able to achieve.

In sum, when legislatures enact laws that today are unenforceable, the legislatures are not necessarily wasting legislative resources or defying constitutional limits. Such laws, particularly when coupled with an appropriate trigger, might helpfully inform the work of other governmental actors and guide the resolution of constitutional issues.

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