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Tuesday, December 01, 2020

Judicial departmentalism, writs of erasure, and the stupidity of political hackery

Tennessee state representative Jay Reedy has introduced a resolution calling on Congress "to enact legislation to prohibit the desecration of the United States flag." Reedy is being dragged by free-speech types.

As a matter of judicial departmentalism, Congress could constitutionally enact this law and Reedy and his compatriots can constitutionally urge Congress to do so. If Congress believes that the best understanding of the First Amendment is that it does not prohibit flag desecration, it can act on that understanding and enact legislation prohibiting flag desecration. And Reedy can urge that action. It would be a waste of time, a zombie law that could never be enforced because of existing judicial precedent (any attempt at enforcement likely would not enjoy qualified immunity). But Congress could pass such a law, if only for symbolic purposes. And Reedy may have good reason for wanting it to do so.

Here is why Reedy is stupid: A federal law prohibiting flag desecration already exists. Because judicial review does not erase laws, the provisions of the Flag Desecration Act of 1989, declared invalid in Eichman, remains on the federal books. So the problem is not that Reedy is urging Congress to enact an "unconstitutional law," since Congress can make its own judgments as to constitutionality, even if they differ from those of SCOTUS. It is that Reedy is urging Congress to enact a law it already has.

Posted by Howard Wasserman on December 1, 2020 at 03:12 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


Also, to both the OP and the other comment, I don't think it makes Reedy "stupid" even if he doesn't realize the act is still technically on the books. He would only be "stupid" in that case if (1) had he known beforehand, he wouldn't have introduced the resolution in the first place or (2) had he found out afterward, he would have withdrawn the resolution. But I doubt he cares much either way.

His goal is to shower his base with red (being the operative word) meat in the form of empty symbolism (as correctly recognized in the OP). Urging someone (I guess it'd have to be DOJ) to start enforcing the existing act again, effectively to get a do-over of Eichman while hoping for the opposite outcome, doesn't really accomplish that goal. But calling on Congress to enact a brand new law does. So, at least from Reedy's perspective, I think his actions make a lot of sense.

Posted by: hardreaders | Dec 2, 2020 1:04:20 AM

I just have two minor points.

One, while the title of § 700 (but, ironically, not the content) does contain the word "Desecration", the short title of the act is in fact the "Flag Protection Act of 1989".

Two, it may be of interest w.r.t. Prof. Magliocca's earlier post on 11/19/20 that subsection (d)(2) provides: "The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal and advance on the docket and expedite to the greatest extent possible."

Posted by: hardreaders | Dec 1, 2020 5:12:30 PM

Howard, please, you're stating facts, which per John Adams, "are stubborn things". Clearly Representative Reedy is too lazy to search the United States Code (which is available online)and has aspirations of higher elected office on his mind (and agenda).

Posted by: Paul Sonnenfeld | Dec 1, 2020 5:04:35 PM

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