I keep hearing that in order to challenge a law you have be charged with it. For example, a few weeks ago I listened to a discussion about the new laws making it illegal to film police. The guest said that one state has a sentence of a few years in jail so people are scared to challenge the law.
However, a few days ago Arizona’s law had an injunction before it even started. So that means that someone challenged the law without being impacted by it first.
So how does this work? What kinds of laws can you challenge without being convicted and what kind of laws do you need to be convicted of first before you can challenge them?
Todderbob’s answer is on target, but doesn’t explain standing well. To have standing to sue or challenge a law means that you, as an individual or a member of a definable class, have been “injured”, in the legal sense, by action of the law. You may have received physical injury, you may have been unjustly arrested, you may have lost income, you may even have been prevented from doing something you might reasonable wish to do, by action of that law. It does not mean that you are a taxpayer whose taxes underwrite the law’s enforcement, or that if you won the lottery, you might find yourself in a position to do something you presently have no capability of doing, but for the law’s operations. You m,ist be able to point to some way in which the law unjustly has brought harm to you or prevented you from doing something that you might otherwise reasonably be doing. The courts will grant standing on any reasonable ground but will cast a dim eye on blue-sjky hypothetical scenarios.
I believe the Federal Government challenged the Arizona law, having standing as the constitutionally and congressionally authorized enforcer of federal immigration law.
It was the federal government that challenged the law, not an individual who was charged under it.
The federal government’s reasons for filing this lawsuit vary, but it’s mainly due to the fact that matters concerning immigration are the exclusive domain of the federal government, and states can’t make their own immigration law. Legal analysts who know much more than I do about this subject seem to think that this lawsuit isn’t a slam-dunk for either side.
This mostly involves nuts-and-bolts constitutional law, namely, the proper relationship between the states and the federal government, not the sexy stuff found in the bill of rights (freedom of speech, freedom of the press, due process, etc.).
Ah, OK. So if an individual thinks a law is unconstitutional he or she has to be impacted by it to have standing, but if the federal government thinks a law is unconstitutional that’s all it takes for them to have standing.
No, I think the federal government has to show that a state is assuming a power that is constitutionally assigned to the federal government. That gives the federal government standing. I don’t believe mere unconstitutionality is enough - the federal government couldn’t have challenged a state law that restricted freedom of religion because that’s a right held by individuals not a federal power.
What I mean is this. Say my Oregon (where I live) passes a law saying that if you wear red shoes you will be fined $1,000. I just can’t say it’s wrong and bring a lawsuit. I have to wear the shoes, get fined the $1,000 and then I can challenge the law.
The federal government was able to get an injunction before the law took effect. The federal government didn’t have to actually feel the impact the law, unlike a citizen would.
The Federal government does have an actual injury - as soon as the law was passed (the government would argue) it injured the powers of the Federal government to wholly and soley control immigration. That the law has not yet been enforced against individuals is of no concern to the Federal government. By existing, it attacks Federal powers.
An injunction doesn’t actually challenge the consitutionality of the law. It prevents (enjoins) enforcement of the law during the time during which the case is being heard. Individuals can also get injunctions.
Yes and no. to the last paragraph. You’re describing a temporary injunction, the sort of thing that prevents you from shooting the cow that both you and Jones claim until a court decides who actually owns it. Permanent injunctions, along with court orders and common law writs, are among the tools courts use to give effect to their rulings. The Governor, Attorney General, and law enforcement community of a state, for example, may be enjoined from enforcing a law that has been found to be unconstitutional.
I don’t think that’s correct. The federal government has no interest in what color your shoes are so it would not have standing and could not file. The challenge would have to wait for an Oregonian to file on his or her own behalf.
Sorry, that wasn’t the point. I gave a fictitious case showing how I would have to suffer the consequences of the law before I could have standing to challenge it, and then compared it to the the real anti-illegal-immigration law being challenged by the federal government event though the law hadn’t gone into effect and the federal government didn’t have to be negatively impacted by it before going to court over it.
But the timing of the two situations differ. As an individual, you are not affected by a law until it is applied to you - you can’t claim standing due a law existing because you have no law enforcement powers.
However, the federal government does have law enforcement powers (along with other governmental powers). So a law that interferes with its powers affects the federal government just by its existence. Standing is created as soon as the law is enacted.
The definition given here of standing seems to imply that I needn’t actually wear the red shoes, but indicate that I was prevented from doing so. Though I would guess a shoe salesman that specialized in red shoes would have a better case.
The US has true Judicial Review, via the Separation of Powers. If the Judiciary determines a law is unconstitutional, there is no way – without a 2/3 majority in both the House and Senate, by passing an amendment – for the law to take effect. The House/Senate do not hold supreme power, where in the UK the Legislature does (a 51% majority is enough to overrule the Judiciary).
In the US, the Supreme Courts decision is, by all effects, law (or invalidation of law) of the land.