Trigger Laws

Abstract

A trigger law is a statute that is unconstitutional and unenforceable when it is enacted but contains a provision deferring the law's effective date until the substantive provisions become constitutional - either because the Supreme Court has changed its interpretation of the Constitution or because the Constitution itself has been amended.

Most trigger laws currently on the books target abortion and anticipate the reversal of Roe v. Wade. Using the abortion trigger laws as a case study, this Note first discusses the many ways trigger laws could be drafted and the interpretive problems created by some formulations.

The Note then analyzes trigger laws within the framework of extrajudicial or popular constitutionalism. Although trigger laws initially appear to be an attractive means of popular participation in constitutional discourse, the Note suggests that trigger laws are not in fact effective tools of extrajudicial constitutionalism because (1) their delayed effectiveness distorts the usual democratic process, casting doubt on whether the laws have majority support, (2) their ineffectiveness precludes judicial challenge, preventing any interbranch dialogue about the law's constitutionality, and (3) their supporters, with some exceptions, have not framed their efforts in terms of constitutionalism, instead preferring to defer questions about the laws' constitutionality until they become enforceable.

The Note concludes by raising Rule-of-Law concerns with trigger laws and suggests how advocates might shape constitutional meaning without inflicting such harm to the Rule of Law.

Keywords: trigger laws, trigger law, popular constitutionalism, rule of law, extrajudicial constitutionalism, extrajudicial, democratic constitutionalism, Roe, Roe v. Wade, Wade, abortion, Article V, state legislature, state legislatures, constitutional interpretation, departmentalism, south dakota