Judge Costa (CA5): "It is often said that courts 'strike down' laws when ruling them unconstitutional. That's not quite right. Courts hold laws unenforceable; they do not erase them."

He's right.


In Buckley v. American Constitutional Law Foundation (1999), the Supreme Court declared unconstitutional a Colorado law that only permitted registered voters to circulate petitions. The City of Houston (my hometown) had a similar law. Did Buckley "strike down" the Houston law? Of course not. It has remained on the books for nearly twenty years.

Recently, two people who were not registered voters in Houston challenged the local ordinance. The City argued that the Plaintiffs lacked standing to challenge a law that could not be constitutionally enforced, or in the alternative, the case was moot, because the ordinance could not be constitutionally enforced.

The Fifth Circuit disagreed on both counts, and found that the plaintiffs could challenge the "zombie" statute. Judge Costa wrote the majority opinion.  And he accurately described the process of judicial review.

It is often said that courts "strike down" laws when ruling them unconstitutional. That's not quite right. See Jonathan F. Mitchell, The Writ-of- Erasure Fallacy, 104 VA. L. REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example.1 See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH. ST. L. REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO. L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

I am happy for the citation, but even happier that the panel rejected the myth of judicial universality: the Supreme Court cannot bind nonparties, or enjoin unchallenged statutes, in a given case. The Supreme Court is a court like any other, and can only issue judgments to the parties before it.

The rest of the opinion is a joy to read. Here are a few of the better turns of phrase:

This case thus requires us to decide when the threat of continued enforcement is enough to reanimate a zombie law and bring it from the statutory graveyard into federal court.

Although there would not usually be a reasonable fear of continued enforcement of a zombie law, the history of Houston's qualified-voter requirement we have recounted gives Trent Pool standing to seek an injunction that would guard against continued chilling of his speech. This zombie shows signs of life.

A reasonable concern that the City might enforce its unconstitutional Charter provision has raised this zombie law from the statutory necropolis.

I have only one criticism of this otherwise exemplary opinion. The panel should have held onto the case for another eight days, and released it on October 31. It would have been the perfect Halloween Trick and Treat!

NEXT: The Law of Guns 2020: CLE program on Oct. 26

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  1. O.K. . . . Let’s say my (black) girlfriend and I want to get married in Virginia (remember that Chamber of Commerce slogan, “Virginia is for lovers” ?) We go to get married and the Justice of the Peace cites the Racial Integrity Act (still not formally repealed) and refuses to marry us. So we have to start a lawsuit so that the judge, citing Loving v. Virginia, rules the RAA unenforceable.

    Does this ever happen these days? NOT!

    Josh, in his privileged whiteworld, can’t see this.

    1. It does not happen because such conduct goes beyond the bounds of qualified immunity.

    2. I see you specify that your girlfriend is black, but not your own race, It seems a fair assumption to be white, otherwise it would not contravene the Virginia law. It smacks of white privilege to just let your readers assume your race is white by default instead of being impartial and stating it as explicitly as your stated your girlfriend’s race.

      Your white privilege makes all your racial criticisms invalid by your own standard. Please turn in your white lawyer commenter card.

      1. Are you ready for Election Day, bigot?

        See you in November, clingers.

        Then again in January.

        After that, not so much. You will be irrelevant.

        1. I see that Johnny One Note is back at it.

          Hit it Ella!


    3. I’m not going to subject myself to Prof. Blackman’s law review articles—his posts here are tedious enough—but I don’t read him to be saying that government’s should try to enforce obviously unconstitutional laws, but rather that the threat they might be enforced gives people standing to get a federal judicial ruling saying that they are indeed unconstitutional. Of course, since the Virginia statute itself has already been declared unconstitutional, I’m not sure your hypothetical is on point, and it appears that Prof. Blackman agrees.


      1. Josh seems to be saying that the statues “struck down” are still in force. If that is true it is a trivial, pedantic truth. There must be thousands of statutes and ordinances still on the books involving (say) racial classification which no longer pass Constitutional muster. Nobody enforces them. They have not been specifically repealed and never will be. A trivial fact.

        1. “still in force” but not enforceable?

          It’s interesting to what great lengths you will go to avoid saying “I goofed.”

          1. Yes, an entity (here, the City of Houston) can try to enforce a law that’s been found to be unenforceable. This little turn of phrase–“still in force” but not enforceable–suggests you didn’t read the opinion carefully. Let me show you what having an unenforceable law enforced against you looks like:

            “In 2014, the last time that an initiative or referendum petition made it onto the ballot, the City deposed petition organizers—including Trent Pool—about the validity of signatures they collected in view of the Charter’s petition-form requirements.”

            They deposed him dude. You can go read the opinion to see what they asked him. But if your acts implicated an unenforceable law and an entity used that activity as a basis to depose you, I have a hard time thinking you wouldn’t feel like that law was “still in force.”

            It doesn’t matter that a law cannot be enforced to the extent of obtaining a legal judgement from whatever tribunal. What matters is what the zombie law is being used as a legal basis to do.

          2. As recently as 2016 there were cops in Louisiana that arrested men for sodomy charges. The DA’s inevitably drop charges, but the arrests (and the various harms that entails) still happened.

            So yeah. Being able to easily win in court is great, but it doesn’t really preclude harms happening first.

            1. yea, then you turn around and file a 1983 civil rights action against all these officers who arrested you under a law that was clearly unenforceable.

        2. It’s not trivial if you bring suit in federal court, as the plaintiffs here did. The issue then is whether they have standing, and whether their claim is moot.

      2. I would think it is a little too on point for comfort. Ken Cuccinelli, when he was the VA Attorney General, attempted to prosecute an individual under the invalidated statute in before leaving office. it had been invalidated in 2003 in Lawrence, but he tried to defend its Constitutionality over his 4 years as AG, forcing the US Court of Appeals to specifically rule the VA law invalid (wasting immense taxpayer dollars in the process) in March 2013. he appealed to SCOTUS, was denied, and then tried a novel argument to reapply the law in a statutory rape case to keep the law alive. here’s the kicker – he is currently the “Senior Official Performing the Duties of the United States Deputy Secretary of Homeland Security” – he cannot be called “Acting” because of federal law, and even the word-around has been questioned by the Courts – so he’s serving arguably illegally as the second ranking official in DHS (thanks Trump) – if he’s happy to do that and with his history, what invalid laws will he try to apply next??!!

    4. “Josh, in his privileged whiteworld, can’t see this.” To say that someone’s ability to comprehend a concept is controlled by the color of that person’s skin is a thoroughly racist comment. You, captcrisis, judge people the same way the KKK does.

      1. Baptists and bootleggers. Some kind of anti-universe version, at any rate.

      2. I think he was making a comment on white priviledge and how it makes that person suffer from being able to emphatize with minority groups. Unlike the KKK who says because my skin color is white I am better than evrey other race.

    5. And more to the point, if you sue to enjoin the statute, the courts are supposed to tell you the statute is already enjoined.

  2. The perfect Halloween Trick or Treat would have been to have Judge Reinhardt write the opinion.

  3. Josh. Come on. Just stop your ridiculous and horrifying lawyer bullshit. An unenforceable law has been struck down, and erased. The making of a law unenforceable is law making. The lawyer profession has one tool, punishment. If punishment cannot be administered for a violation, the law does not exist anymore. It has been repealed.

    Judicial review is prohibited by Article I Section 1, giving “all” law making power to the Congress. Judicial review is insurrection against this sentence. This insurrection justifies the arrests of all Justices, and sentencing them to 10 years in federal prison.

    If you want judicial review of complicated, technical subjects by know nothing, dumbass, bookworm, worthless, big government, rent seeking, Ivy indoctrinated, treasonous lawyers on the Supreme Court, enact an Amendment.

    This accepted lawyer fiction, judicial review, has been the biggest catastrophe for our nation, worse than the Civil War or World War II, in damage to our country. Its very first expression was in Dred Scott. That decision lawlessly repealed a law that prevented war for 20 years, breached a ratified international treaty with Canada, and set off the Civil War. Good job, lawyer asshole traitors. This is from AP Am. History in high school. You never hear about this horrifying decision in law school. Its peak expression was not in Dred Scott, but in Roe v Wade. The death warrant of millions of babies was signed by subhuman, feminist, lawyer filth. No American may criticize the German people of the 1930’s.

    1. Its very first expression was in Dred Scott.

      I’m not sure which is sadder: your grasp of history, law, or the English language.

      1. “I’m not sure which is sadder: your grasp of history, law, or the English language.”

        I’m not sure which is saddest, your grasp of history, of law, or of the English language.

        David, if you give me your address, I will gladly send you this book.


      2. David, did you cover Dred Scott in law school or not? You can make yourself useful by answering that question.

        1. Dred Scott was a decision written by racist. If we are being honest the real people to blame for the civil war were our founding fathers who found people to be 3/5 of a person.

    2. dude please start taking your meds again.

  4. Back in 1982, my Con. Law professor that courts do not “strike down” statutes, but “refuse to give effect to” them.
    In the Houston case described above, that has gone up to the Fifth Circuit, and (presumably) down on remand, will the Plaintiffs get all of their attorney fees under 42 USC §1988?

  5. I think the concept of ‘erasing’ or ‘striking down’ a law is just a crude and unfortunate way of characterising what is actually happening (on the orthodox view) when a court finds a law to be unconstitutional.

    When a court ‘strikes down’ a law actually it is ruling that the purported law is invalid ab initio. The legislator went beyond its limited powers when it purported to enact the law. A non-existent law cannot be binding on anyone. And as no law was validly enacted there is nothing for the court to erase/strike down.

    The alternative (equally respectable) view is that an unconstitutional ‘law’ should be regarded as valid but unenforceable (until it is repealed). It’s not clear to me why that is the better approach.

    1. And if the law is in fact valid and the court is mistaken, then it’s a legitimate but enenforceable law. Even those who believe the courts are wrong won’t try to enforce the law if they know they’ll lose in court – wait for better judges.

      Conversely, if the courts decide a certain type of law is constitutional, the legislators (and the governor/President in the case of a veto) should repeal or veto a statute they believe to be unconstitutional, and their decision is final – that is, courts won’t un-repeal a law the legislature has repealed, even if based on disagreement with the court’s reasoning.

      Similarly with pardoning violators of a statute.

  6. Desuetude is useful. If no one has been punished for a violation of a law, regalation, or mandate for 5 years, the law should be void, and repealed automatically. That gives the elected executive branch the discretion to cancel silly rules. It is also based on reality polcy not on the fictitious, unconstitutional doctrine of judicial review.

    An Amendment would be nice. However, a national law would suffice. This would be a weapon of mass regulation destruction. It would bring balance to the 10000 pages of federal regulation written each year. It would restrain the horrible, nitpicking, bad faith, political agenda lawyers engaging in the Inquisition 2.0.

  7. I get the formalism of this argument, but how does that square with Qualified Immunity decisions on what “clearly established” means. If the previous decisions can only bind the parties then can a violation by a different officer ever be clearly established? Does it have to be clearly established that that decision applies to them? And if your argument is it doesn’t then it obviously isn’t clearly established.

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  9. Trick question! That couldn’t happen because there are no justices of the peace in Virginia. What used to be JPs are now magistrates. (That, and because the Racial Integrity Act has in fact been repealed. )

    1. That was supposed to be a reply to captcrisis, above. I have no idea why it got thrown down here.

    2. In fact, it was repealed in the very next session of the General Assembly after the Court ruled it invalid. https://law.lis.virginia.gov/vacode/title20/chapter4/section20-50/

  10. I think Professor Blackman is twisting things a bit. Lawsuits are against parties, never statutes. Courts order parties, not statutes, to do things.

    I think the district court very reasonably said that in order for plaintiff to have standing to enjoin parties, there has to be a credible, imminent likelhood that the parties sued are about to do the action to be enjoined. There wasn’t such a likelihood shown here. So no standing, and end of case.

    I don’t see how hairsplitting about the metaphysical nature of statutes helps anything. As Nicholas Nassim Taleb put it, “experts” whose expertise in sophisticated jargon and theories doesn’t enable them to do anything practical that laypeople would consider their profession responsible for doing – classify correctly, predict a result, estimate a value, identify a course of treatment that will cure, etc.. – better than an uneducated lay person, should be considered pseudoexperts, not real experts at all.

    My feedback here is that repeated fine distinctions that don’t seem to make any practical difference come perilously close to Taleb’s definition of pseudoexpertise, and should be a avoided. And this particular distinction seems to be an example.

    1. Conversely, it is the threat of imminent enforcement and the degree of that threat, not the on-the-books existence of a statute, that conveys standing.

      The existence of a state statute is relevant evidence to matters like whether conduct was done under color of state law and the existence of a policy or practice. But other factors, such as whether defendents are state officials, their interactions with or threats to plaintiff were done in the course of their duties, etc., are also relevant evidence.

    2. I think it may have to do with the fact that Blackman has never actually practiced law, he has only taught it.

  11. Perhaps it’s important to recognize that rulings get overturned.

    Then all those unenforceable, but not repealed, laws will spring back to life.

    For example this remains on the books:
    1 U.S. Code § 7 – Definition of “marriage” and “spouse”

    In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

  12. From a practical standpoint, it would be nice for an average Joe to be able to read the Law (revised statutes of one’s state) and be able to understand what is legal and illegal, without having to be a scholar.
    Thus, legislatures should have a committee that scrubs statutes of unenforceable laws. In an ideal world.

  13. Why write about this?
    There’s no point to this. Once the supreme court rules in this case every lower court including states court must adhere to its decision. Meaning if the Supreme Court says gay marriage is ok, then every state in the union must allow it. It’s not limited just to the parties.

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