Retroactive Law: Is It Legal In The Us?

The concept of retroactive law is rooted in the Fifth Amendment of the U.S. Constitution, which upholds the principle of due process. In other words, it is generally considered unfair to hold an individual liable for violating a law that did not exist at the time of the alleged violation. However, there are exceptions to this principle, and courts may permit the retroactive application of statutes, regulations, or standards under specific circumstances. This exception is known as ex post facto and is most commonly applied to criminal statutes, retroactively criminalizing conduct that was initially legal. The U.S. Constitution prohibits Congress and individual states from enacting such laws. Nevertheless, there are instances where retroactive laws have been upheld, such as in taxation and regulatory contexts.

Can a law be retroactive in the US?

Retroactive laws are rooted in the Fifth Amendment of the US Constitution

The US Constitution's Fifth Amendment, or the due process clause, forms the basis for the principle of disfavouring retroactive law application. In other words, it is typically deemed unfair for an individual to be held responsible for breaking a law that did not exist at the time of the alleged violation.

The US Supreme Court has, however, permitted retroactive application of statutes, regulations, or standards in certain circumstances. For instance, in SEC v. Chenery II, the US Supreme Court allowed retroactive application of an SEC adjudicatory proceeding, introducing a new standard of conduct. The Court stated that "every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency".

The Court further emphasised that such retroactivity must be balanced against the potential negative consequences of producing a result that goes against a statutory design or legal and equitable principles. In U.S. v. Carlton, the US Supreme Court, while acknowledging the protections of the due process clause of the Fifth Amendment, ruled that a federal estate tax statute amendment limiting a deduction and its retroactive application did not violate the Fifth Amendment. The taxpayer did not rely on the previous statute, and the retroactive application only extended one year back.

In addition, federal courts have been more receptive to the retroactive application of tax laws. The US military also recognises ex post facto law. For example, the Domestic Violence Offender Gun Ban, which imposed firearms prohibitions on those convicted of domestic violence misdemeanours or subjects of restraining orders, is considered regulatory rather than punitive. Similarly, the Copyright Term Extension Act, which was retroactive as it affected both new and existing works, was upheld by the decision in Eldred v. Ashcroft.

Courts may allow retroactive application of statutes under certain circumstances

The principle of disfavoring retroactive application of the law is rooted in the Fifth Amendment of the U.S. Constitution's due process clause. In other words, it is not considered fair for an individual to be held responsible for breaking a law that did not exist at the time of the alleged violation.

However, courts may allow the retroactive application of statutes, regulations, or standards in specific circumstances. For instance, in SEC v. Chenery II, the U.S. Supreme Court permitted the retroactive application of an SEC adjudicatory proceeding, introducing a new standard of conduct. The Court acknowledged the inherently retroactive nature of new principles established by courts or administrative agencies, but emphasised the need to balance this against potential contradictions with statutory intent or legal and equitable principles.

Similarly, in U.S. v. Carlton, the U.S. Supreme Court held that an amendment to a federal estate tax statute, which limited deductions and applied retroactively, did not violate the Fifth Amendment. The Court reasoned that the taxpayer had not relied on the previous statute, and Congress had corrected an error by only extending the application retroactively for one year.

In the context of Illinois law, while there is no explicit authority for the legislature to modify criminal judgments after 30 days, the Illinois Supreme Court has upheld the power of the Illinois Legislature to adopt statutes permitting individuals to seek sentence alterations or reductions beyond this timeframe. This flexibility allows for corrections to be made when laws no longer align with evolving standards of decency or result in unfair sentencing disparities for the same offence.

Retroactive reforms aim to redress injustices caused by outdated, overly broad, harsh, or disproven past policies. While these reforms cannot always undo the harm, they can provide significant relief in certain cases.

Retroactive criminal sanctions are prohibited in the Irish Constitution

In the United States, the principle of disfavouring retroactive application of the law is rooted in the Fifth Amendment of the U.S. Constitution, i.e., the due process clause. This means that it is not considered fair for an individual to be held liable for violating a law that did not exist at the time of the alleged violation. However, courts may allow retroactive application of statutes, regulations, or standards under certain circumstances.

The Irish Supreme Court has also found that retroactive changes of the civil law violate the constitution when they would have resulted in the loss of a right to damages before the courts. This is because such a right is considered a constitutionally protected property right. The Irish Constitution also expressly provides for the principle of legality or the rule of law, which is a basic international human rights and constitutional principle.

The principle of legality or the rule of law is implicit in the Irish Constitution in a number of ways. For example, criminal offences are interpreted restrictively because they allow for sanctions, including the deprivation of liberty. A serious offence is presumed to require a mental element or an element of fault. In CC v. Ireland, the strict offence of having unlawful carnal knowledge of a minor aged under 15 was found unconstitutional due to the absence of a mental or fault element.

In addition to the Irish Constitution, other countries' laws and international documents also reflect the principle against retroactive criminalisation. For example, in France, retroactive laws are technically prohibited by Article 2 of the Code Civil, which states that "Legislation provides only for the future; it has no retrospective operation". While the Code Civil can be overruled by subsequent laws, the Conseil Constitutionnel has determined that retroactive laws can be passed within certain limits, particularly in the case of financial or tax legislation. Similarly, Article 25, paragraph 2, of the Italian Constitution prohibits indictment pursuant to a retroactive law, stating that "nobody can be punished but according to a law [in force] before the deed was committed".

In conclusion, the prohibition of retroactive criminal sanctions in the Irish Constitution aligns with international principles of human rights and the rule of law, as well as the principles of legality and liberty.

Retroactive laws may be applied if they benefit the person being judged

In the United States, the Ex Post Facto clause, derived from Article I, Section 9, Clause 3 of the Constitution, prohibits the enactment of retroactive laws. The Fifth Amendment's Due Process Clause also prohibits the government from depriving any person of "life, liberty, or property, without due process of law."

However, this does not prohibit in mitius laws, where the retroactive application benefits the accused person. For example, in the case of SEC v. Chenery II, the U.S. Supreme Court allowed the retroactive application of an SEC adjudicatory proceeding, which applied a new standard of conduct. The Court acknowledged that while every case of first impression has a retroactive effect, such retroactivity must be balanced against the potential negative consequences of producing a result that goes against statutory design or legal and equitable principles.

Similarly, in U.S. v. Carlton, the federal courts upheld the retroactive application of tax laws. Additionally, the U.S. Constitution does not prohibit all retroactive laws, as Congress routinely passes tax laws applicable to the full calendar year in which they are enacted. These laws are generally upheld by courts against due process challenges, as they are considered to have a "legitimate legislative purpose" and only establish "a modest period of retroactivity."

While American jurisdictions generally prohibit ex post facto laws, some nations that follow the Westminster system of government may allow them due to the doctrine of parliamentary supremacy. For example, Article 29 of the Constitution of Albania explicitly permits retroactive laws that alleviate possible punishments. In the United Kingdom, ex post facto laws are permitted by virtue of parliamentary sovereignty.

Ex post facto prohibits legislatures from passing laws that retroactively criminalize behaviour

In the United States, ex post facto laws are expressly forbidden by the US Constitution in Article 1, Section 9, Clause 3 (federal laws) and Article 1, Section 10 (state laws). These clauses prohibit legislatures from passing laws that retroactively criminalise behaviour, as it is not considered fair for an individual to be liable for violating a law that did not exist at the time of the alleged violation.

Ex post facto laws refer to criminal statutes that punish actions retroactively, thereby criminalising conduct that was legal when it was originally performed. This can include criminalising actions that were previously legal, aggravating a crime by bringing it into a more severe category, changing the punishment for a crime, extending the statute of limitations, or altering the rules of evidence to make conviction more likely.

Despite the prohibition on ex post facto laws, there have been instances where retroactive laws have been upheld. For example, the Domestic Violence Offender Gun Ban imposed firearms prohibitions on those convicted of domestic violence misdemeanours or subject to restraining orders, even if the weapon was legally possessed when the law was passed. This law was upheld as it was considered regulatory rather than punitive. Similarly, the Copyright Term Extension Act, which affected both new and existing works, was upheld in Eldred v. Ashcroft.

While ex post facto laws are prohibited, there is an exception when retroactive criminal laws benefit the accused person. For example, in Canada, if the punishment for a crime has varied between the time the crime was committed and the sentencing, the convicted person is entitled to the lesser punishment.

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