It seems that one of the bedrock principles of the adversarial legal system is that there must be an actual dispute before a court will consider a case: There must be a current controversy, not a prospective or a historic one (with some exceptions), and the people bringing the case must be legitimately involved on opposite sides of the issue.
It’s that last part I want to poke at a bit here.
Let’s say the United Legal Council for Activism wants to overturn a law and the legislature isn’t going to repeal it. So it picks a test case in a jurisdiction where it knows the prosecutor isn’t a fan of the law, either. The strategy is simple: The prosecutor wins until she loses, and she loses at the highest possible court, such that the precedent is binding on as large of a region as possible. No money changes hands, and she obviously has to win most of the time, so she’s doing as good of a job as she can right up until the end.
So, if the court found out, would this cause problems? After all, there isn’t a dispute per se; both sides want the same outcome, and have even decided on a strategy to achieve it. Everyone except the judiciary and the State itself is in on it. They just have to take opposite sides in a play-acting exercise, like high school debate team, in order to walk it through the system the right way.
Case law doesn’t automatically trump statute law. Precedent is something that courts don’t like bucking, but there is no hard and fast rule that means that it is binding.
If the prosecutor tried the suggested scenario there are a number of issues.
They have no guarantee they will lose. Obviously “throwing a case” is likely to be noticed - judges are not stupid. They may get extremely peeved about such a tactic.
If the prosecutor presents a very poor case the precedent isn’t that the law is invalid. It is that the law, when presented with a case of strength matches the one presented may be dismissed. It isn’t a black and white situation - one loss and the law is out. If the prosecutor failed to introduce a key bit of evidence or information the precedence set is simply that the law, when prosecuted with a another case that also is missing that evidence or information may also lose. There is nothing to say that a case made better than the prosecutor’s deliberately sabotaged case will not succeed. Only precedent that may establish some metric of requirements for the case to succeed.
The high court can affirm the prosecution’s victory below for the reasons articulated there, even if the prosecution does not make those arguments at the high court.
No, Brown refused to defend Prop 8 from the outset. He didn’t agree to defend it and then do a half-assed job, or handle the trial then refuse to participate in the appellate proceedings. In any case, Brown’s office would not have been serving a prosecutorial function in that case; it would have been the defense in a civil action.
The ACLU does not serve a prosecutorial function. Public interest litigation test cases are totally different.
I never said the prosecutor’s case would be weak. In fact, I expect the case would have to be fairly strong in order to survive to at least the Federal Circuit Court level.
However, the prosecutor would have to, one, not drop the case, and therefore not offer a plea agreement as regards the charge brought due to the law they want overturned. Not that a test case participant would take a plea agreement to begin with, but the prosecutor in this scenario has to be raring to go to prosecute that one specific interesting charge. Therefore, the prosecutor also can’t do anything to distract the court: The courts must be focused on the merits of the law being challenged, as opposed to things like tactics or other legal questions.
So, is this kind of thing only a problem if the judge thinks the prosecution is throwing the case? Is it possible to throw a case by pounding too hard on a loser of a law if there are, potentially, other tactics you could use?
But the problem is - a case wins or loses for particular reasons. Then, the appeal says the judge made an error in interpreting the law. (IIRC, it’s pretty rare to be allowed to argue an error in fact). As a result, the real question becomes one simple point of law that the case hinges on, and the more specific and descriptive a decision, the more difficult to articulate a reason why a whole string of judges before you were wrong.
So something like “stop and frisk violates 4th amendment” may be judged unconstitutional by itself in principle, or it may be found unconstitutional for a specific reason. Consider “Terry Stops”. IANAL, but the judges did not rule them illegal, or legal, but instead articulated the rules under which they could happen -
So the police may not stop and frisk you just because it’s “frisk Tuesday”, but if you match a perp description in the area, if you look like you’re armed - fair game.
This is the risk in any court case - you may get a very limited answer for your effort. There’s probably enough crime in a city within a few miles involving “young black male approx. 6 ft in baggy pants and ball cap” that stop-and-frisk will never die out completely.
I should point out that the Supreme Court especially has been expert at ducking the question - by giving very limited answers, or even the classic “you have no standing to ask”.
The law itself isn’t being challenged. Unless you are trying to have a law struck down in the courts, at which point you are not going the route suggested.
The courts will be focussed of the merits of the case being presented. Not on the law under which the case is brought. Your attempt at setting a precedent is only meaningful within the scope of the case presented. The reasons a court decide to dismiss a case are part of the precedent, not simply that a case was lost. If the prosecutor fails to make an adequate case, that is all the precedent is. Next time a case is brought under that law, and the prosecutor does make a good case, the law stands. It doesn’t go away because a case was lost. Precedent sets limits on how the law may be applied. There is the adage that bad cases make for bad law. But a court is quite within its scope to set down exactly the reasons for its decision, and that forms part of the precedent. If the court finds that the prosecutor failed to satisfy every component required under the law in question the precedent is little more than that a successful case must satisfy every component.
I am not aware of any such obligation in the American system. The government might be obligated to enforce a duly enacted law (even then, it has prosecutorial discretion), but it is not obligated to argue that the law is constitutional if its constitutionality is challenged. That would make the executive subordinate to the legislature, which is not allowed in our divided government system. A prosecutor derives his or her authority from the constitution independent of legislative authority. It would also bind a current executive to the judgment of a prior executive.
If what you say is true, then that would be usurping the Legislatures role.
From a short search, I can find this article which suggests that there is indeed a duty.
There was something of this sort going on in the initial stages of Lawrence v. Texas. At the original justice of the peace hearing, the JP fined both defendants $100, but this isn’t enough under Texas law to appeal a JP case. The defendants’ attorneys asked that the fine be increased, which the prosecutor and JP agreed to, knowing full well that the men intended to challenge the constitutional validity of the Texas anti-sodomy law. Something similar happened at the next court level. I’ve read commentary that the judges and prosecutors at the JP and next court were sort of baffled that this was even being charged and were very sympathetic. The prosecutors from there on out, however, were not, which is sort of the downside of a plan like this. You don’t get the same team all the way from the bottom to the top and attorneys general can get pretty stroppy when you’re challenging state laws.
I wonder if the question of standing isn’t the key to the OP’s question.
If you want a law to be struck down there is the question of having standing to be able to take the question to a court that can strike it down. Which AFAIK is probably SCOTUS. So there a prosecutor can deliberately provide the mechanism for a case to make it to the Supremes, and there the question of a law’s validity could be challenged. But such a challenge is a matter of setting a precedent, and the merits of the prosecuted case are not what will be argued. Not if you are trying to have the entire law expunged.
Whether the state’s own prosecutor gets to argue the validity of the law (not the case, but the law) is something I have no idea about. But the law will be judged on its merits, and the prosecutor may not have much actual sway in the outcome. The law will only be expunged if it is indeed considered to be unconstitutional, or trumped by other law. It may be narrowed in scope. Or it may simply be deemed to be a perfectly good law, and now has even less chance of any further successful challenge. It does not strike me as a good way to wipe out a law, not unless you were convinced from the outset it would be knocked down. Which is likely to be a very small subset of otherwise undesired or bad laws.
Is the OP talking about federal or state law? That would make a huge difference, as any challenge to federal law would have to be done by the US Attorney’s Office in the district and circuit court level, but once it gets to the Supreme Court, it’s the Solicitor General’s office that takes over defense of any federal law. At this level, there is a lot of strategic coordination within the Department of Justice and the white house – there’s no way a single rogue prosecutor (an AUSA) could sabotage a case all the way to the SCOTUS.
In some ways, the litigation history of the Defense of Marriage Act (DOMA) in US v. Windsor is probably instructive with respect to the OP’s question. Signed into law in 1996, DOMA defined–for federal purposes–marriage as an act between men and women. Fast forward 23 years, to 2009 – Edith Windsor’s same-sex spouse died and left her estate to Windsor. But because DOMA defined marriage as a union between men and women, the IRS held that Windsor did not qualify for an estate tax exemption for surviving spouses when she inherited the estate of her deceased same-sex spouse. The IRS then directed Windsor to pay over $360,000 in taxes. In response, Windsor filed a lawsuit against the US, arguing that DOMA was unconstitutional.
In the years after DOMA was signed into law, American popular attitude towards same-sex marriage (and homosexuality in general) changed. The legal landscape had also changed in the subsequent years, as same-sex marriage had been recognized in several states, with some state AGs recognizing same-sex marriages from other states. In this context (and based on his legal analysis), US Attorney General Eric Holder, in consultation with and approval of the White House, issued a statement in 2011 declaring that the USDOJ would no longer defend the constitutionality of the relevant provision in DOMA. However, the DOJ allowed an interested third party (the Bipartisan Legal Advisory Group of the House of Representatives (BLAG)) to intervene in the lawsuit in order to defend the constitutionality of DOMA. When DOMA was struck down as unconstitutional by the US District Court, DOJ (although approving of the ruling) filed an appeal in order to allow BLAG to continue defense of the Act. After the Second Circuit Court of Appeals affirmed the District Court’s ruling, DOJ filed its writ of cert to SCOTUS. Although SCOTUS granted cert on the case, it also raised concern about the issue in the OP’s question:
Of course, SCOTUS ultimately ruled that DOMA was unconstitutional. But the point of this is that the DOJ did not have to throw the case (even assuming that doing so was practical).
I don’t see how that’s the case. Indeed, as I said, mandating that the executive must defend the constitutionality of statute in court subordinates the executive to the legislature and to prior executives, which is not allowed.
The very premise of the article is that there are very prominent people who disagree with its central claim. So, it’s an opinion, certainly.
In any case, there is now adequate precedent for executives to decline to defend the constitutionality of statute. And in the American system, there’s no way to force the executive to do that, because the judiciary can’t impose policy judgments on the executive.
Back in the 80s, SWMBO’s uncle was a Professor of Anthropology who was called to give expert testimony in a case. Under Louisiana law at the time, you were considered black if you had a black ancestor anywhere in your bloodline. A young lady who was apparently a blue-eyed blonde had a birth certificate said she was black and she wanted it changed. The state basically said we can’t change the law, but if you will please sue us, we can get it overturned in court. She did so and they did so.
They did it that way because the action had to come from a party “damaged” by the law.
Not exactly to “challenge a law”, but: we have an appeal going on right now that is really just a question we want answered about a statute. Without getting into details: in our case there is one instance of conduct, but two victims of the offense. Our question is whether a person can receive two convictions, or just one because there was just one “act”. Basically, whether the offense is conduct-oriented, or result oriented.
So to get our answer, the defendant and his attorney agreed to plead to one offense involving one victim, at a reduced plea bargain. Following the plea, the defense filed a motion to quash the indictment involving the other victim, which the court granted, and we appealed from that order. Our brief is in; we’re still waiting for the defendant’s brief, and then another wait for the opinion.
On edit: what Clothahump is talking about there is what you call “standing”. The law has to have affected you in order for you to have standing to challenge it.