# A law is ruled unconstitutional. What next? **URL:** \ **Category:** Factual Questions\ **Created:** [February 19, 2010, 8:30am UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605 "2010-02-19T08:30:27Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![II\_Gyan\_II](https://avatars.discourse-cdn.com/v4/letter/i/bbe5ce/32.png) [@II\_Gyan\_II](https://boards.straightdope.com/u/II_Gyan_II)\ **Post date:** [February 19, 2010, 8:30am UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/1 "2010-02-19T08:30:27Z")
This pertains to US federal laws. Suppose a Court rules some law X unconstitutional because it violates some section or amendment. What happens next? Broadly, I can think of two scenarios 1)Nothing happens formally. The DoJ simply sends a memo instructing prosecutors to not charge anyone with violating that law. And cops, for their part, don’t arrest anyone for the same. But technically the law still stands, and a cop/prosecutor could try, whereupon a common law court dismisses the case. 2)There’s some mechanism whereby the Court sends a notice to Congress about the ruling, and via some procedure, a text is added to the Code that law X no longer holds. Now, it’s not even procedurally possible for a cop to arrest someone for violating X. Is it one of these? Or something else? ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [February 19, 2010, 1:38pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/2 "2010-02-19T13:38:08Z")
If the law is declared unconstitutional, it’s as if it was never passed. Any current prosecutions under the law are suspended (and since the defense will point to the ruling if the case goes to trial, there’s no point in trying to prosecute, anyway). I’m not sure if the law if removed from the books, but it cannot be enforced. If you managed to get it to trial, the defense would just ask for a dismissal, and the judge will grant it. People who were already convicted under the law can appeal their sentences. Whether they’re freed is determined on a case-by-case basis, since the conviction can be a result of breaking other, constitutional laws. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [February 19, 2010, 2:27pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/3 "2010-02-19T14:27:37Z")
The law would remain on the books unless stricken by Congress. Previous convictions would not be overturned if the court’s ruling was expressly not retroactive. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [February 19, 2010, 3:02pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/4 "2010-02-19T15:02:40Z")
I assume the whole law is not always thrown out? I recall some discussion (contracts or wills) that said invalidating a clause did not invalidate the whole thing unless it was key to the whole. I asssume some similar legal principle holds for laws? I.e. if the law says you can get the death penalty for downloading copyright materials, and this law applies to minors as well; the court could toss the clause saying it applies to minors as well as unconstitutional, the rest of the law stands… ---
**Author:** ![IAmNotSpartacus](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@IAmNotSpartacus](https://boards.straightdope.com/u/IAmNotSpartacus)\ **Post date:** [February 19, 2010, 5:01pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/5 "2010-02-19T17:01:44Z")
> [@Tom\_Tildrum](#): > > Previous convictions would not be overturned if the court’s ruling was expressly not retroactive. What examples can we look at where a law was overturned and previous convictions based on that law were allowed to stand? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 19, 2010, 5:43pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/6 "2010-02-19T17:43:37Z")
The law remains “on the books” but is not enforced, or not enforced in the unconstitutional way to which the court took exception. Example: New York State’s Penal Law had a provision making “consensual sodomy” (oral or anal sex by mutual consent) a Class B misdemeanor (the lowest classification of crime). State courts voided it as a vuiolation of privacy, long before _Lawrence v Texas_. The law was thereupon not enforced – usually. Oral sex in a public place was still prosecuted (no expectation of privacy), and it was sometimes used as a reduced charge in plea bargaining. [I think the section has since been repealed, but I’m using it as an example of a statute found unconstitutional.] Very often what is unconstitutional is not the law itself, but its application to a particular case. For example, a city annexing land, or abandoning back to the county land officially within its borders but undeveloped, is perfectly legal and done in many states on a regular basis. Since we moved to North Carolina not quite 12 years ago, Raleigh has annexed about 30% of its current area, and even the small town we live near annexed an adjacent developed area. But the decision in [_Gomillion v Lightfoot_](http://supreme.justia.com/us/364/339/case.html) held that Alabama doing this for the City of Tuskegee was unconstitutional. Why? Because it was done specifically to disenfranchise the city’s black voters, by abandoning to the county the areas where most black people lived. Not the power of the legislature to alter municipal boundaries, but the specific use of it as regards Tuskegee, was unconstitutional. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [February 19, 2010, 7:28pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/7 "2010-02-19T19:28:36Z")
> [@IAmNotSpartacus](#): > > What examples can we look at where a law was overturned and previous convictions based on that law were allowed to stand? I misspoke slightly; it turns out that non-retroactivity is the default, unless there is a specific finding of retroactive effect. The most significant recent case was [_Teague v. Lane_](http://supreme.justia.com/us/489/288/case.html). There, a convicted prisoner brought a habeas corpus challenge over the fact that the prosecutor in his case had used his peremptory challenges to strike all of the black members of the jury pool. At the time of his case, this was permissible, but sometime after, the Supreme Court ruled (in a case called _Batson v. Kentucky_) that to use peremptory challenges in a racially biased way was an unconstitutional violation of the Equal Protection Clause. So Teague files an h.c. petition to have his conviction overturned, saying that the prosecutor in his case did the same thing that the prosecutor did in _Batson_. The Court, however, says too bad – we can’t help you. The rule in _Batson_ was not retroactive because that’s the general rule, and it didn’t fit into any of the narrowly defined exceptions. Because Teague’s conviction was final before _Batson_ was issued, he could not get it overturned on that basis. In _Teague_, Justice O’Connor expressed the retroactivity exceptions as follows: “First, a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ Second, a new rule should be applied retroactively if it requires the observance of ‘those procedures that . . . are implicit in the concept of ordered liberty.’” Whatever those exceptions mean, Teague’s case was not found to fall within them. Prior to _Teague_, another noteworthy case was [_Mapp v. Ohio_](http://supreme.justia.com/us/367/643/case.html), where the Court ruled that the exclusionary rule (on illegally-obtained evidence) applied to the states. This ruling was found not to be retroactive. More recently, in [_U.S. v. Booker_](http://www.allbusiness.com/legal/3505946-1.html), the Supreme Court found much of the federal sentencing guidelines to be unconstitutional, and this decision has been deemed non-retroactive. One has to think that their are practical considerations at work: To have held either of these rulings to be retroactive would have invalidated either the conviction of potentially every state convict nationwide or the sentencing of every nearly every federal prisoner. ---
**Author:** ![IAmNotSpartacus](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@IAmNotSpartacus](https://boards.straightdope.com/u/IAmNotSpartacus)\ **Post date:** [February 19, 2010, 7:39pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/8 "2010-02-19T19:39:13Z")
Outstanding. Thanks for the follow up. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [February 19, 2010, 7:40pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/9 "2010-02-19T19:40:53Z")
In the federal system, it matters which court found the law to be unconstitutional. If a district court made that ruling, there’s no binding effect outside of that district, likewise if a circuit court of appeal made the ruling, there is no binding effect outside of that circuit, but if SCOTUS makes the ruling, all courts are bound by it–unless, of course, a new case can be distinguished from the one that held the law unconstitutional in some way. For a silly example, say the law is unconstitutional as applied to people with blue eyes–the argument can be made that this defendant has brown eyes, and is therefore not covered by the prior ruling of unconstitutionality. Also, a non-binding decision from another jurisdiction can be cited as persuasive authority that the present court should follow the same reasoning…say the 5th Circuit ruled a law unconstitutional, and you’re arguing a similar case in the 9th Circuit–you can cite the 5th Circuit opinion, and ask the court to follow the learned judges of the 5th Circuit, and they may or may not agree. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 19, 2010, 7:53pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/10 "2010-02-19T19:53:25Z")
Adding to **Oakie** ’s post, a fair proportion of the cases SCOTUS takes in any given term will be ones where two Circuits have held opposing views on similar cases. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [February 19, 2010, 8:13pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/11 "2010-02-19T20:13:56Z")
I don’t think the district courts, being trial courts, are often in the business of finding things unconstitutional. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [February 19, 2010, 8:30pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/12 "2010-02-19T20:30:15Z")
> [@friedo](#): > > I don’t think the district courts, being trial courts, are often in the business of finding things unconstitutional. It happens; constitutional challenges frequently start there. Here’s an example, a federal district court that ruled that a special “Christian license plate” mandated by South Carolina law violated the Establishment Clause. [Summers, et al. v. Adams, et al.](http://www.au.org/media/press-releases/archives/2009/11/summers-v-adams-summary.pdf) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 19, 2010, 8:39pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/13 "2010-02-19T20:39:09Z")
> [@Tom\_Tildrum](#): > > In _Teague_, Justice O’Connor expressed the retroactivity exceptions as follows: “First, a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ Second, a new rule should be applied retroactively if it requires the observance of ‘those procedures that . . . are implicit in the concept of ordered liberty.’” Whatever those exceptions mean, Teague’s case was not found to fall within them. That’s the key as far as I can understand it - the acts that Teague committed remained illegal. All he could say is that the rules under which the trial happened were not fair. The presumption is that a jury reaches the right decision, and Teague had the appeals process to overturn the jury’s initial finding. Had his all-white jury reached a wrong decision, the argument runs that the Appeals Court would have overturned it. They didn’t, and so the fact that the rules as to trial change doesn’t warrant overturning his verdict, or even necessarily a new trial. Were it to be a _Lawrence_ type situation, the Court found that the state could nto make the accused of activity illegal. Therefore even if the system works perfectly, the individual should never have been convicted. The state can go back and seek prosecution under a different law, but it makes sense that such a rulign should be retroactive. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 19, 2010, 9:13pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/14 "2010-02-19T21:13:46Z")
> [@Oakminster](#): > > In the federal system, it matters which court found the law to be unconstitutional. If a district court made that ruling, there’s no binding effect outside of that district, likewise if a circuit court of appeal made the ruling, there is no binding effect outside of that circuit, but if SCOTUS makes the ruling, all courts are bound by it–unless, of course, a new case can be distinguished from the one that held the law unconstitutional in some way. Actually, that statement is a little confusing. If a district court makes the ruling, there’s no binding effect outside the district, true… but also no binding effect _inside_ the district, except to the extent that it involves the law of the case. The circuit’s ruling do create binding precedent within the circuit. But if Congress passes a law against crossing a state line for the purpose of mopery, and I am acquitted in the Eastern District of Virginia because the court decides that mopery requires the government to prove intent to creep as an element… when you’re arrested next week in Alexandria for the same offense, you can’t point to my acquittal as binding precedent on the issue of whether mopery requires intent to creep. Now, if the government appealed that ruling to the Fourth Circuit, and they affirmed, then sure enough, the rule in the Fourth Circuit would be that mopery requires intent to creep, and everyone in both districts of Virginia, Maryland, both West Virginia districts, all three North Carolina districts, and the district of South Carolina would be covered. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [February 19, 2010, 9:28pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/15 "2010-02-19T21:28:29Z")
**Bricker** , I do always enjoy your detailed and interesting treatises on the subject of mopery. ---
**Author:** ![Irishman](https://avatars.discourse-cdn.com/v4/letter/i/b487fb/32.png) [@Irishman](https://boards.straightdope.com/u/Irishman)\ **Post date:** [February 19, 2010, 9:28pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/16 "2010-02-19T21:28:35Z")
**Bricker** said: > [@](#): > > you can’t point to my acquittal as binding precedent on the issue of whether mopery requires intent to creep. Not binding precedent, but it still can be used as part of the argument to that point, in hopes of convincing the new court, correct? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 19, 2010, 9:36pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/17 "2010-02-19T21:36:00Z")
> [@Irishman](#): > > **Bricker** said: > Not binding precedent, but it still can be used as part of the argument to that point, in hopes of convincing the new court, correct? Yep. “A precedent is whatever a lawyer offers that a judge does not immediately fall off the bench laughing at.” But a binding precedent is a ruling on the relevant law arrived at by a court “above” the court in which it’s being argued. (Technically, no precedent is totally binding, as a lawyer can always creatively distinguish the facts of this case from those of the precedent case. But no trial-court judge, and few appeals-court judges, care to rule in a manner they know damn well is likely to be reversed by the court that appeals from their decisions are taken to. So a judge will rule in accord with precedent a lot of the time, and in accord with “binding precedent” 99.9% of the time.) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 19, 2010, 9:42pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/18 "2010-02-19T21:42:30Z")
> [@Polycarp](#): > > So a judge will rule in accord with precedent a lot of the time, and in accord with “binding precedent” 99.9% of the time. Richard Posner being the exception that proves the rule, of course. 😃 ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [February 19, 2010, 11:59pm UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/19 "2010-02-19T23:59:43Z")
> [@II\_Gyan\_II](#): > > This pertains to US federal laws. > > Suppose a Court rules some law X unconstitutional because it violates some section or amendment. What happens next? Not US Federal laws, but in Minnesota, once a law had been ruled unconstitutional by the Minnesota Supreme Court, it remained on the books, but the Revisor of Statutes would put a note in the next edition of the law books noting that this statute had been declared unconstitutional in _Smith v. Hennepin County_ or whatever. Sometimes these notes remained in the statutes for decades! That was primarily because of political considerations. Usually it was laws related to religion: sex, gambling, drinking, required Sunday closure, etc. Despite their having been declared unconstitutional, republicans would refuse to vote to repeal them, because that would bother their fundamentalist base, and conservative democrats would refuse to vote for it either, then, because republicans would attack them for that vote. So the unconstitutional law stayed on the books for years. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 20, 2010, 12:39am UTC](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605/20 "2010-02-20T00:39:18Z")
> [@Tom\_Tildrum](#): > > I misspoke slightly; it turns out that non-retroactivity is the default, unless there is a specific finding of retroactive effect. Interesting. Though, as a matter of procedure, one would think that the matter would almost certainly HAVE to be retroactive to at least the amendment that the law violated. If the Court found that a law against X violated the 14th amendment, then shouldn’t anyone convicted of that law after 1868 (when the amendment was passed) be free from its punishments? I mean, it’s not like the court is just repealing the law, it is saying that the law is void on its face and never at any time proper because it goes against the constitution. [Next page](https://boards.straightdope.com/t/a-law-is-ruled-unconstitutional-what-next/529605.md?page=2)