Remedial Limits, Constitutional Adjudications, and the Balance of Powers
49 Pages Posted: 13 Dec 2022 Last revised: 1 Feb 2023
Date Written: January 21, 2022
Judges lack the power to “strike down,” or “nullify,” laws that are repugnant to the Constitution, and they commit a fallacy when they treat such laws as vetoed, repealed, or erased. The approach that is consistent with the judicial power granted by the Constitution is to refuse to enforce unconstitutional laws and perhaps to enjoin the executive from certain enforcement activities. Although the first-order consequences of accepting this “remedial limit” are straightforward—mostly linguistic, or in the rare case in which the Court overturns a precedent that had held a statute unconstitutional—the second-order effects (how it alters current judicial doctrine) are more nuanced. For example, if courts cannot actively strike down laws, then current justiciability, remedies, and severability doctrines should be reexamined.
This Article explains how the remedial limit restricts Article III standing by limiting redressability and how its misapplication can cause courts to address constitutional questions unnecessarily—even to issue advisory opinions. First, the remedial limit prevents courts from hearing claims that allege harm stemming from the mere existence of an unconstitutional statute, even if that harm is otherwise legally cognizable. Second, when courts entertain challenges to statutes that purport to restrict the President’s authority to remove executive officers, they should first determine whether the challenger would be entitled to relief even assuming the removal restriction is unconstitutional. In several recent cases, federal courts have unnecessarily decided important constitutional questions because they have treated the declaration of unconstitutionality as a remedy without considering whether the challenger’s injury would be remedied.
I then examine the systematic effects that would result from honoring the remedial limit, including legislative and executive reaction, status quo bias, and the increased role of state governments. Limiting constitutional decisions, particularly the kind of decisions the remedial limit would prevent, will push disputes from federal courts to the legislative and executive branches, as well as to state governments. It will privilege the status quo, which will heighten the importance of legislative and executive judgment. And it will decrease the importance of the federal judiciary, giving more responsibility to elected representatives to interpret and follow the Constitution.
Keywords: constitutional law, federal courts, article III, administrative law, justiciability, standing, remedies,
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