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Saturday, December 07, 2019

Legislatures creating universality

As I discuss in a forthcoming piece, the combination of remedial particularity (no non-particularized injunctions) and departmentalism (the executive can ignore judicial precedent about a law's constitutional validity, at least until the matter reaches court) leaves an essential role for the legislature. The only way to stop the executive from enforcing or threatening to enforce a constitutionally dubious law, even one declared invalid by SCOTUS, is to repeal that law.

That was the task of the Commission to Examine Racial Equity in Virginia, which last month released its Interim Report identifying dozens of state laws for repeal; these include the anti-miscegination law at issue in Loving, some education laws enacted during Massive Resistance to Brown, and some laws targeting the "feeble-minded." Josh Blackman comments.

The action is symbolic, because any enforcement effort would fail. Any government official attempting to enforce would be sued for damages (qualified immunity would be lost, because the invalidity of these laws is clearly established by SCOTUS precedent), injunctive relief, and attorneys fees. And the line attorney litigating the case likely would be sanctioned (although I doubt it would be by contempt, as Josh suggests). But there is a substantive component, if read as the legislature checking the executive in some manner.

Posted by Howard Wasserman on December 7, 2019 at 12:51 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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