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Thursday, July 05, 2012

What does it mean to "declare" a law unconstitutional?

We often hear talk of SCOTUS "declaring" a law unconstitutional or "striking down" a law. The problem is that neither of these phrases is a recognized legal concept. Instead, it is a political concept, used to criticize (or praise) the Court in the realm of public debate. Plus, constitutional decisions are made in the context of resolving a specific legal case or controversy. So just as important as the constitutional determination and declaration is the formal resolution of the case, the "It is so ordered" that comes at the end of every opinion.

This thought came to me after a question was posted to a listserv asking how many federal laws SCOTUS had "declared unconstitutional" this past term. The answer is not simple, because litigation context matters. Looking at the list of decided cases from October 2011, I come up with five. But only one conformed to the popular understanding of a law being declared unconstitutional--that we are left as if the law never was enacted and it cannot be used or enforced at all going forward. The rest require unpacking.

The obvious one is the Stolen Valor Act in United States v. Alvarez, which reversed Alvarez's conviction and functionally enjoined future prosecutions under the Act. But then consider:

• In Coleman v. Maryland Court of Appeals, the Court held that a state could not be sued for damages under the Family and Medical Leave Act, because Congress could not abrogate sovereign immunity because the law was not congruent and proportional. Stated differently, the Court held that the FMLA violated the Eleventh Amendment to the extent it made states subject to suit. In other words, the FMLA was unconstitutional in thie case. But would the public (or even lawyers) ordinarily think of it that way, since the Court did not question anything else about the constitutional validity of the FMLA or its future uses?

• In Hosanna-Tabor Lutheran Church v. EEOC, the Court held that the ministerial exemption, a product of both of the First Amendment's religion clauses, barred a lawsuit against a church by (or on behalf of) a minister. Stated differently, the Court held that the ADA violated the First Amendment's in a claim against a religious organization by a ministerial employee (note: this was a product of the Court's (correct) decision that the ministerial exemptin is a merits-centered affirmative defense). In other words, the ADA was unconstitutional in this case. But, again, do we think of it that way, since the Court did not question anything else about the constitutional validity of the ADA?

• Finally, there is ACA. Chief Justice Roberts would, I expect, argue that his opinion established that the individual mandate was unconstitutional under the Commerce Clause (a conclusion with which five agreed), even though it was constitutional under the Tax-and-Spend Clause, and the Medicaid expansion unconstitutional under the Spending Clause (a conclusion with which seven agreed), even though the Court subsequently saved the expansion by narrowing it only to strip new funds. (Of course, this depends on how we understand the Roberts opinion, which is a point of contention). But assuming Roberts's preferred reading, since both provisions ultimately remain valid and enforceable (as narrowed) going forward, does the public understand this as invalidating the law?

Posted by Howard Wasserman on July 5, 2012 at 05:05 PM in Constitutional thoughts, Howard Wasserman | Permalink


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In 1998 I was pulled over by police and issued a citation for licence suspended in the third degree shortly thereafter I left the state and resumed my life in Utah. While there my licence was reinstated due to the fact that the state decided it was unconstitutional to suspend my license to begin with now I am by K in my home state and I come to find out I still have a fine on the books for said violation it just didn't seem right I have a hearing coming up to review the case do I still need to pay the fine?

Posted by: Jack French | May 13, 2016 5:13:41 PM

I generally agree with this post, but it's not accurate to say that "declaring" is not a legal concept. I would say that strict legal terms, "declaring" a law unconstitutional means issuing a declaratory judgment that it is unconstitutional.

Posted by: AF | Jul 5, 2012 10:49:41 PM

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