There was some state legislation that passed a few days ago with unusual (to me) procedures built in. Rather than address the particulars of that case and get lost in Great Debates space, let’s address the general mechanism:
‘This law restricts (this thing) to (this group). If that’s found unconstitutional, it restricts (this thing) to (this group plus A). If that’s found unconstitutional, it restricts (this thing) to (this group, plus A, plus B). Repeat as needed. See attached list of A through ZZZ.’
The point being to overtly restrict (this thing) as much as possible, and then make the whole thing go to court over and over and over until the list of (A,B,C,D,E…) hits some cutoff that the Courts agree with.
I guess that ‘severability’ is an established bit of legislative art, in that if a part of a law is unconstitutional, the rest of the law may stand minus the offending bit. But can you really do a stepwise play like this, acknowledging that you’re trying to push the Constitutional issues to their limits? Putting it all in a single bill, including all your incremental changes, rather than drafting a new bill for each step? You’re guaranteeing a continuous legal challenge until every possible included step has been found unconstitutional, and (presumably) putting something acceptable at the very end to prevent the whole law from being struck down in a single step. It smells like it’s a way of abdicating legislative power and making the Courts say what the law should be.
Has this been tried before? Has it worked before? If not, how was it defeated - through Court action or the legislature backing down?
Laws certainly sometimes refer to severability. That is, they will explicitly say that if one part of the law is found unconstitutional, the others continue to apply. I’m not familiar with a law that explicitly has subordinate sections that only are relevant when others are ruled unconstitutional, but it’s an interesting concept.
I wonder if it will actually work. It probably depends on the specific groups, things, and whether the constitutionality test for restrictions related to them is different for the different groupings.
I am very curious about this. Will you send a private message to me with a link about the law? I will leave specifics out of the thread.
It sounds like a great timesaver to me, PROVIDED that the court (if it rejects the plain version) responds with something like, “It is too restrictive as is, but with A B and C it is okay.” The idea seems to be to specifically AVOID going back and so many times.
Of course, this would only work if the court agrees to do it. Note also the specific language of the bill: The court might be satisfied with just groups A and E, but that’s not an option as the bill was written, so they might have to include B C D also.
Can a court rule against provisions that are not in force at the time the case comes to trial, though? You can’t argue against including, say, group E yet because they aren’t included until you’ve gone through 5 rounds of ruling against (this group), (this group+A), (this group +A+B), etc.
If a member of group E brings a case, then they can argue all the way down to the subordinate legislation plan that restricts E from thing, but presumably not further, due to judicial restraint (they’ll only decide the issue at question, which is whether the law is an unconstitutional violation of the rights of the person bringing the suit).
The decision may still effectively apply further, depending on the thing and the groups and the standard on which it was decided. Plenty of landmark Constitutional cases were only argued about a single state’s law, but still apply to many different laws in many different states because the same principle can be applied to all of them.
Broadly, it’s an antiabortion law that bans the practice after x weeks post conception. If that law is overturned, it goes to x+2 weeks. If that’s overturned, x+4 and so on.