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Thursday, August 27, 2020

Bad Legal Takes and the writ of erasure fallacy

Moderate Mentality reminds us that the federal flag-desecration law remains on the books, because a decision declaring a law invalid and unenforceable does not erase it from existence. So, yes, MM, federal officials could use closed-circuit TV and facial-recognition software to try to hold people accountable. As long as those officials do not mind losing in court and being made to pay damages and attorney's fees.

Posted by Howard Wasserman on August 27, 2020 at 06:27 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


In Utah there has been one attempt to prosecute misconduct by a prosecutor just once in 20 years. Maybe things are different elsewhere.

Posted by: J.Bogart | Aug 30, 2020 10:42:40 AM

Still not sure what you mean that he "could" bring the charges. That it's not a physical impossibility? It is not something he could *lawfully* do.

Posted by: Marty Lederman | Aug 29, 2020 7:05:45 PM

Marty: A prosecutor willing to withstand the consequences could bring those charges. He would enjoy absolute immunity from any civil action. And perhaps he will take his chance with ethical charges. Most prosecutors won't. Some might.

Marcus: No. A judge would be obligated under Loving to dismiss the charges, because vertical stare decisis binds courts. That is the point--the law remains on the books, but cannot be successfully enforced in court in light of controlling precedent.

Posted by: Howard Wasserman | Aug 29, 2020 2:13:21 PM

Alabama did not repeal its anti-miscegenation law until 2000, and South Carolina in 1998. The Supreme Court decided Loving v. Virginia in 1967. So what you're saying is that prosecutors could bring criminal charges against inter-racial couples, and those individuals could be sentenced and imprisoned for the "crime" of miscegenation, unless they themselves brought a lawsuit challenging the application of the unconstitutional law?

Posted by: Marcus | Aug 29, 2020 2:00:23 PM

If a prosecutor brought such a case knowing it'd be tossed, that'd violate the defendant's due process rights (as well as the First Amendment). And prosecutors don't have the authority to act in deliberate violation of the Constitution. So I don't know what it means that they "can" bring such charges.

Posted by: Martin Lederman | Aug 29, 2020 12:02:58 PM

Statutes are laws. But a law must be enforced. A court will not enforce a law that is constitutionally invalid. So any attempt to enforce the law--by arresting and trying someone or threatening to arrest someone--will fail in court, because the court must apply Eichman and declare the law invalid as to that individual.

Posted by: Howard Wasserman | Aug 28, 2020 8:31:45 PM

I have trouble identifying what you mean by law here (and previous discussions) of invalidity rulings. At some point you address this? Are statutes not laws in the US system? Is there an enforceability condition?
Your claim re remedies here is close to nugatory. The threat of fees here is too small to matter, particularly given your departmentalism. If the enforcer is in a different jurisdiction how could you get to bad faith?

Posted by: J. Bogart | Aug 28, 2020 8:12:24 PM

Ex Parte Young. And fees are available under the EAJA.

Posted by: Howard Wasserman | Aug 28, 2020 4:03:46 PM

What is the cause of action for injunctive relief against a federal official or agency that would permit attorney's fees?

Posted by: Slippery Slope | Aug 28, 2020 3:54:43 PM

Good points, all. Unless they bring a pre-enforcement injunctive action, which does allow for attorney's fees. And there's a good argument that the "bad faith" exception to Younger would allow that action even in the face of a pending prosecution, given how obvious the state of the law under Eichmann and Johnson.

Posted by: Howard Wasserman | Aug 28, 2020 3:13:56 PM

You're assuming the Bivens cause of action extends to this kind of First Amendment violation by federal officials. Big assumption. And prosecutors would have absolute immunity.

And even if you're right, there's no fee shifting statute for Bivens actions.

So at the end of the day, people can be arrested and charged by federal officials under an unconstitutional statute and maybe someday get some emotional distress damages -- which will be dwarfed by the attorneys fees they needed to pay to bring the suit.

Posted by: Slippery Slope | Aug 28, 2020 3:02:57 PM

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