The Writ-of-Erasure Fallacy

87 Pages Posted: 25 Apr 2018 Last revised: 19 Oct 2018

Date Written: April 6, 2018

Abstract

The power of judicial review is all too often regarded as something akin to an executive veto. When a court declares a statute unconstitutional or enjoins its enforcement, the disapproved law is described as having been “struck down” or rendered “void” — as if the judiciary holds a veto-like power to cancel or revoke a duly enacted statute. And the political branches carry on as though the court’s decision has erased the statute from the law books.

But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.

When judges or elected officials mistakenly assume that a court decision has canceled or revoked a duly enacted statute, they commit the “writ-of-erasure fallacy” — the fallacy that equates judicial review with a veto-like power to “strike down” legislation or delay its effective start date. This article identifies the origins of the fallacy, describes the ways in which the writ-of-erasure mindset has improperly curtailed the enforcement of statutes, and explores the implications that follow when judicial review is (correctly) understood as a temporary non-enforcement policy that leaves the disapproved statute in effect.

Keywords: judicial review, void, erasure, strike down, veto, non-enforcement, facial, as-applied, Council of Revision, injunctions, judicial supremacy, departmentalism, Civil Rights Cases, Plessy v. Ferguson, stare decisis, Administrative Procedure Act, Eighth Amendment, Shelby County v. Holder

JEL Classification: K00, K10, K19, K20, K30, K39, K40, K41, K42

Suggested Citation

Mitchell, Jonathan F., The Writ-of-Erasure Fallacy (April 6, 2018). 104 Va. L. Rev. 933 (2018). Available at SSRN: https://ssrn.com/abstract=3158038

Jonathan F. Mitchell (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://law.stanford.edu/directory/jonathan-mitchell/

Register to save articles to
your library

Register

Paper statistics

Downloads
330
rank
84,837
Abstract Views
1,324
PlumX