Bench Memos

Law & the Courts

Positive Progress?

More in the ongoing debate over judicial supremacy: In his thoughtful reply to my two posts yesterday, Randy Barnett asks me, “What is the positive law of the land after a Supreme Court holding of unconstitutionality?” Barnett opines that a federal statute that has been determined by the Court to be unconstitutional either is or is not still the positive law of the United States. He speculates that the difference between my position and his is that I’m “primarily (or even exclusively) concerned with the legal effect of such a decision on the executive branch or on Congress,” whereas he’s “primarily concerned with the effect of such a ruling on the legal duty of We the People, each and every one, to obey a statute.” (His emphases.)

No, I think that the difference between us is that, unlike Barnett, I don’t think that there’s a simple yes-or-no answer to the question whether a statute that the Court has determined to be unconstitutional remains positive law. To put it another way, I’m not sure that the question really makes sense. I’ve been spared the burden of spelling out my views on this question, as a learned reader has sent me an e-mail that sets forth a response to Barnett’s question that I happily embrace:

Just read Randy’s characteristically thoughtful post.  But I’m not sure I see the significance of distinguishing between the Executive and private individuals (“We the People,” in Randy’s constitutional parlance), because it seems to me the analysis is the same.  

A private individual is not legally bound by a Supreme Court judgment to which he’s not a party, and is thus legally free to ignore that judgment if he wants to and can get away with it practically — i.e., if he’s not subject to a lawsuit that will end up in a court that’s bound to apply Supreme Court precedent upon pain of reversal by the Court. Conversely, a private individual is legally free to comply with a Supreme Court judgment to which he’s a non-party if he wants to and can do so practically — i.e., if he can seek judicial redress against any third party who disagrees in a court that’s bound to apply Supreme Court precedent upon pain of reversal by the Court.

In other words, and to answer Randy’s question directly, there is no single answer to the question “what is the positive law of the land?”  The positive law is the statute if constitutional, and no-statute if unconstitutional.  And in a departmental system, the answer depends on the entity who has jurisdiction to resolve the constitutional question for the particular parties at issue.  Some parties will get their answer judicially, in which case the highest court with jurisdiction over the question will provide the ultimate answer.  But other parties won’t get their answer judicially, in which case the Executive Branch or mere private ordering will provide the ultimate answer.

Randy makes a big deal about how practically uncertain that renders the law.  But the law is filled with uncertainty.  Consider the individual mandate pre-NFIB-lawsuit.  What was the “positive law” that “we the people” were supposed to follow then?  Was it the statute, just because no court had yet ruled it unconstitutional?  Or was it no statute, because “we the people” correctly determined that the mandate to buy insurance was unconstitutional and correctly predicted that the Supreme Court would so rule.  As in all cases where the law is uncertain, individual people were free to make different choices, based on their constitutional beliefs, willingness to follow other’s constitutional beliefs, and tolerance for risk if wrong about one’s own constitutional beliefs. The same holds true even after the Supreme Court has spoken.  In a departmental system, non-parties who honestly disagree can ignore the Court if they think they’re sufficiently unlikely to be sued; non-parties who honestly agree can follow the Court if they’re sufficiently unlikely to be sanctioned for compliance by someone who’s immune to suit.  

In short, Randy seems to think that it’s the Supreme Court’s constitutional responsibility to provide practical certainty and clarity about the positive law to We the People — but that’s just judicial supremacy in another guise.  The Supreme Court’s duty is not to say what the law is in the abstract and for all people and all time, but rather to resolve concrete cases or controversies between specific parties, and thereby establish precedent that will control how inferior courts resolve future cases or controversies between different parties raising the same or similar issues.  How everyone else chooses to order their affairs as a result is up to them in a departmental system, subject of course to the possibility that their choices may give rise to a new case or controversy between parties that will be resolved by a court that is bound to apply Supreme Court precedent upon pain of reversal.

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