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Sunday, October 25, 2020

"Zombie statutes," non-universality, and judicial departmentalism

The opening paragraph of this Fifth Circuit opinion by Judge Costa accurately describes judicial review (H/T: Josh Blackman):

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA.L.REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.ST.L.REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO.L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

The opinion deals with what Costa calls "zombie statutes"--laws in one state that remain on the books but are unenforceable (at least judicially, more on that below) in light of SCOTUS precedent declaring an identical law from a different state invalid. The challenge here was to a Houston ordinance requiring initiative/petition circulators to be registered voters; SCOTUS in Buckley v. American Constitutional Law Foundation declared an identical Colorado law to violate the First Amendment. The Fifth Circuit held that the plaintiffs had standing and that the case was not moot--there was sufficient threat of enforcement despite Buckley and the city's addition of an Editor's Note to its code--stating that it would accept petitions from non-registered voters and provided a form for such petitions--was not sufficient to moot the case.

This "zombie law" concept is interesting. I wish I had it in front of me (or had thought of the term myself) when writing about the link between non-universality and judicial departmentalism. Because those concepts inform what makes a zombie law.

Because of non-universality, the concept should not be limited to the situation at hand--State B's law is a zombie because of a decision involving State A's law. State B's law can be a zombie because of a decision involving that law as to non-parties to the prior litigation. It also means we could have federal zombie laws. The point is the same in all--the prior judgment spoke to the challenged law and the involved party, not to any other law or any other party.

Because of judicial departmentalism, it is arguably unfair to call any law a zombie law. Because if the government believes, in its independent judgment, that the law is constitutionally valid, it acts within the full scope of its constitutional power in enacting or enforcing it, regardless of contrary precedent. In that sense, the law is alive and enforceable. On the other hand, maybe zombie is the right term because the laws are undead--they are alive in remaining on the books and in remaining enforceable by a departmentalism government, but the actual or threatened enforcement is DOA in court, where SCOTUS precedent binds and determines the outcome. On a third hand, maybe we need distinct terms to capture distinct concepts--law on the books but no intention to enforce v. law on the books with intention to enforce--rather than lumping everything as a zombie.

Posted by Howard Wasserman on October 25, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

So, and by the way, one can imagine the following one:

That like in that case mentioned of that sergeant as agent of the house, that must obey the court, the same for repealing laws(formally):

Somebody would petition federal court, why wouldn't the person in charge of registration of laws ( like: federal registration) be compelled to erase the law invalidated by the court(if he would have standing,hard to prove personal injury in such case) then, the court orders one federal employee, to do something needed and ordered, and doesn't deal personally with members of Congress(for that rather the immunity meant).

The same for states of course.

Thanks

Posted by: El roam | Oct 26, 2020 1:45:16 PM

Marshall v. Gordon, is great illustration for the limited power of the Congress, and the fact, that courts are always on top of course. There, appellant was arrested in New York by the sergeant -at-arms pursuant to a resolution of the House. The supreme court dismissed it as lacking authority and power to do such thing.

This is a hell of recommended ruling, from many other aspects also.

Here:

https://tile.loc.gov/storage-services/service/ll/usrep/usrep243/usrep243521/usrep243521.pdf

Posted by: El roam | Oct 26, 2020 1:24:31 PM

Just to quote from Gravel v. United states:

"[N]o prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded [421 U.S. 491, 508] the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances."From this respondents argue that the subpoena works an invasion of their privacy, and thus cannot be immune from judicial questioning. The conclusion is unwarranted. The quoted language from Gravel referred to actions which were not "essential to legislating."

So, and although not that much relevant to the issue of repealing laws, yet, showing the there is no such thing as total immunity or procedural one here concerning the Congress.

Posted by: El roam | Oct 26, 2020 12:54:34 PM

My comment has disappeared, so again:

Well Wasserman, as I have explained, this is a wish rather than a dish. Desirable over custom.

However, they are not questioned, they are ordered by court. Courts has the duty to prevail in controversies, and the Congress, is many times, party to a controversy.

The power of Congress, as held by the supreme court, is not an unlimited power. It means, that when needed, Congress must comply with court order. As happened many times.

Even so, the court should not order it even. But rather, once invalidated, the obvious action that should be taken, is to repeal it formally, and not only, not to effectively enforce it.

And by the way, many things are prescribed by the constitution, yet, it looks different in life. The president, has no immunity at all according to the constitution. Yet, the court has granted him immunity(some sort). The judges took the liberty, and the duty, inherent duty, to "read in" immunity.

Endless illustrations of such. Finally, the court prevails. Courts are always on top. Separation of powers, is rather theoretical over reality. That is what it is.

Thanks

Posted by: El roam | Oct 26, 2020 12:46:24 PM

Well Wasserman, as I have explained, this is a wish rather than a dish. Desirable over custom.

However, they are not questioned, they are ordered by court. Courts has the duty to prevail in controversies, and the Congress, is many times, party to a controversy.

The power of Congress, as held by the supreme court, is not an unlimited power. It means, that when needed, Congress must comply with court order. As happened many times.

Even so, the court should not order it even. But rather, once invalidated, the obvious action that should be taken, is to repeal it formally, and not only, not to effectively enforce it.

And by the way, many things are prescribed by the constitution, yet, it looks different in life. The president, has no immunity at all according to the constitution. Yet, the court has granted him immunity(some sort). The judges took the liberty, and the duty, inherent duty, to "read in" immunity.

Endless illustrations of such. Finally, the court prevails. Courts are always on top. Separation of powers, is rather theoretical over reality. That is what it is.

Thanks

Posted by: El roam | Oct 26, 2020 12:44:30 PM

Except for Article I § 6: "The Senators and Representatives . . . and for any Speech or Debate in either House, they shall not be questioned in any other Place." That means Senators and Representatives cannot be brought before a court and if they cannot be brought before a court they cannot be ordered to do anything. The way to operationalize the prohibition on Congress "making" an infringing law is to stop the executive from "enforcing" that law.

The same people wrote Art. I § 6 and the First Amendment, so they understood that in prohibiting "Congress" from doing something, they meant the making and enforcing of a law.

Posted by: Howard Wasserman | Oct 26, 2020 12:29:14 PM


Wasserman,

I was writing about the desirable situation, not description of the situation or custom.

However, courts can compel it. They don't. But, they can. As I have explained in the past. The first amendment provides as follows in relevant part:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

So, the constitution, prohibits the Congress of making such law. And who would scrutinize it and grant remedy? The courts ! That is what the constitution provides. For, Congress can't remedy itself (theoretically). One shall address courts in such case. Correct for states and the federal system.

If the first amendment, then why not other amendments of course.

So, if the court can substantially invalidate the law, surly formally repealing it, and erasing it from books.

The fact that this is not the custom, doesn't change the desirable legal analysis of course.

Thanks

Posted by: El roam | Oct 25, 2020 6:47:58 PM

Courts cannot order legislatures to repeal laws. Courts can only compel someone to do something if they are party to the case. And legislators have absolute immunity from being hauled before a court or being compelled by that court to perform legislative acts. That is why these lawsuits always are against the executive and not the legislature--the courts order stops enforcement (as Judge Costa says in the introductory paragraph), nothing more. Whatever one may think of either non-universality or departmentalism, this is not in dispute.

Posted by: Howard Wasserman | Oct 25, 2020 6:33:40 PM

Important issue. But worth to note:

First, it is not always of course, that the whole statute is invalidated. Many times, only some sections or one( like in the case of Buckley mentioned).

Second, erasure from the book, is rather formal act. But, if court can invalidate the law, it can also order to do it formally (and erase it actually). We must assume that this is the inherent duty of the court, to strike down laws. So, why not formally, if done substantially so?

Third, typically invalidated because of the unconstitutionality of the law. So, if it is federally unconstitutional, why not universally so? At least, the presumption must be first that it is universally unconstitutional, unless, and burden of proof on the claimant otherwise, it is proved that in one particular case, it does differ, and the scope should be limited geographically, or, only to current parties.

Finally, one law may be repealed by another law, intended to repeal it simply. If only one section, it if very simple, to add or amend it, and near the number of the section, to write: repealed ( adding footnote: by the court with the right reference or details).

Thanks

Posted by: El roam | Oct 25, 2020 2:34:22 PM

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