Surveying the statute books and passing judgment on the laws

|The Volokh Conspiracy |

Compare and contrast this passage from the district court decision holding unconstitutional, under the Second Amendment, the California statute prohibiting magazines with more than ten rounds:

Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code section 32310.

with this passage from Younger v. Harris, which I taught today in a Remedies class at Notre Dame:

Beyond all this is another, more basic consideration. Procedures for testing the constitutionality of a statute 'on its face' in the manner apparently contemplated by Dombrowski, and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation it has been clear that, even when suits of this kind involve a 'case or controversy' sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, see, e.g., Landry v. Daley, 280 F.Supp. 938 (N.D.Ill.1968), rev'd sub nom. Boyle v. Landry, 401 U.S. 77, ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process.

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  1. IANAL, so maybe this is some lawyer quibbling far above my pay grade.

    If we are to have rule of law, not men; and if courts are to judge when men transgress laws; then we need some super law which governs what lesser laws men can enact without violating the rule of law.

    Is that not what a Constitution is? Who would judge whether lesser laws violate the Constitution, if not judges?

    1. I interpret this post as stating that enforcement has to be attempted in order for an injunction to be issued.

      1. IANAL either, but isn’t there a distinction between “as applied” challenges, where there would logically need to be an example of enforcement to judge, and “facially invalid” challenges, where the law is clearly invalid regardless of how it is enforced?

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    2. If we are to have rule of law, not men

      obligatory

      1. Thanks for the link, but I’ve always thought the expression was honored more in the breach. It’s nice sentiment which people treat more like rule of robots, except that would probably be worse in practice and end up with men controlling the robot programming — right back where we started.

  2. The Court in Younger v. Harris doesn’t know where this policy originated:

    “The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified, but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.”

    And admits it might not be applicable to the US:

    “The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country..”

    But doctrine is doctrine.

  3. My favorite part of that passage from Younger v Harris was later…

    “It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against [p54] whomever an effort might be made to apply it. 313 U.S. at 402. Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be.”

    Ohhh, maybe a statue that just flat out banned possession of 11 round and larger clips that are in common usage, in violation of the 2nd amendment?

    Perhaps next California will just try to ban bullets, and claim “The second amendment is just “arms” not the bullets to use with them.

    1. “Perhaps next California will just try to ban bullets?”

      A proposed bill in Oregon [SB 501] would limit ammo purchases to only 20 rounds per month. Ammo sales would require a background check and:

      “(2) A person may not receive more than 20 rounds of ammunition in any 30-day time period. (3)(a) Any person transferring ammunition shall maintain a record of all ammunition transferred by the person to ensure that a person does not receive more than 20 rounds of ammunition in any 30-day time period.”

      By the logic employed in Younger v. Harris, the courts couldn’t declare this (proposed at this time) law unconstitutional if no one is ever charged with violating it. And If on one is able to buy more than 20 rounds a month (because no one will sell any individual more than 20 rounds per month), then on one can be charged with violating the law.

      1. Some New York Demoncrap “progressive” proposed the same, but every 120 days, so 60 rounds per year. LOL

        1. It’s a good thing these idiots never heard of reloading.

  4. From the syllabus of Watson v. Buck:

    Criminal proceedings to enforce a state statute, even though it be unconstitutional, are not to be enjoined by a federal court in the absence of a definite threat of prosecution and of a clear showing of great and immediate danger of irreparable loss.

    The opinion of the district court in this case does not contain the word “irreparable.”

  5. It’s maybe one thing if the state passes a law say against hate speech which is likely unconstitutional, and then wait until the state finds something someone said and tries to prosecute. There is damage done to the defendant, and perhaps some speech is chilled.

    But it’s another thing entirely when the state passes a law, also likely unconstitutional that immediately turns millions into criminals without so much as a single act. The 30 round magazine sitting on the shelf in the closet untouched for years, was yesterday lawful, and without any affirmative action now the magazine sitting on the shelf makes the owner a criminal, millions of criminals.

    Maybe injunctions like this should be rare, but this surely was a rare instance of the state instantly criminalizing a constitutional right, without the citizen even affirmatively taking performing any act.

    Citizens United which outlawed the showing of a political movie during an election campaign was probably best litigated when the government acted and a test case presented, but millions of people were not in jeopardy of going to jail.

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