Unconstitutional Laws: Is It Possible?

A law can be deemed unconstitutional if it conflicts with a provision of the State or Federal Constitution. The judiciary does not have the power to declare a law unconstitutional unless it goes against the laws set forth in the applicable constitution. Depending on the legal system, a statute may be declared unconstitutional by any court or only by special constitutional courts. In some countries, the legislature can create any law, and there is no provision for courts to declare a law unconstitutional. For example, in the United States, the President has a duty to disregard and not enforce any laws deemed unconstitutional.

The judiciary's power to declare a law unconstitutional

In the United States, the judiciary's power to declare a law unconstitutional is derived from the concept of judicial review. Judicial review is the legal authority of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing laws, state constitutions, or the US Constitution. While the US Constitution does not explicitly grant the power of judicial review to the federal judiciary, this authority has been inferred from its structure, provisions, and history.

The idea that the judiciary has the power to nullify unconstitutional laws is supported by several sources, including The Federalist Papers published in 1787-1788, which made references to the power of judicial review. The most comprehensive discussion on this topic can be found in Federalist No. 78, penned by Alexander Hamilton. Hamilton asserted that the federal judiciary, under the Constitution, has the power to declare laws unconstitutional to safeguard the people from potential abuses of power by Congress.

In 1798, the Kentucky and Virginia legislatures passed resolutions asserting their authority to determine whether acts of Congress are constitutional. However, ten states, including Vermont, disagreed and asserted that this power belongs exclusively to the federal courts. This disagreement set the stage for Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional.

The power of the judiciary to declare a law unconstitutional is not without its critics. Some argue that judicial review by the federal courts is unconstitutional, citing two main reasons. Firstly, they contend that the Constitution does not explicitly delegate the power of judicial review to the federal courts. Secondly, they maintain that the states alone possess the power to ratify changes to the "supreme law" (the US Constitution), making state interpretations of the amendment crucial to its implementation.

Despite these debates, the judiciary's power to declare a law unconstitutional remains a crucial aspect of the US legal system, ensuring that laws and actions by government officials adhere to the Constitution and protecting the rights and liberties of the people.

The executive's duty to disregard unconstitutional laws

The US Constitution does not empower the President to enforce laws they deem to be unconstitutional. The President's duty to preserve, protect, and defend the Constitution requires them to disregard unconstitutional statutes. This is supported by the Faithful Execution Clause, which requires the President to choose the Constitution over unconstitutional laws, just as courts must. John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. For instance, President Jefferson halted Sedition Act prosecutions, citing the Act's unconstitutionality.

However, some scholars argue that Presidents must enforce all congressional laws, regardless of their personal constitutional opinions. This is a significant point of contention in the interpretation of Article II, Section 3 of the Constitution, which contains the Faithful Execution Clause, or the Take Care Clause. The Take Care Clause is seen as a source of presidential power, granting broad enforcement authority, but also as a limitation on that power, as it requires the President to faithfully execute the laws of Congress and not disregard them.

The Supreme Court has been involved in several disputes regarding the scope of presidential power, including the power to remove federal officers. Andrew Johnson and William Clinton were impeached, in part, for allegedly violating their Take Care Clause duties. Some argue that the Clause should be interpreted to prevent the creation of independent agencies, as protecting officers in those agencies from removal interferes with the President's ability to execute the law as they see fit. However, insulating certain agencies from political control can foster independent, nonpartisan decision-making.

The question of whether a law is unconstitutional ultimately falls to the Supreme Court, which has the power to hold state and local laws unconstitutional or preempted by federal law. This can occur when state or local laws conflict with a federal statute, treaty, or the Supremacy Clause. Examples of state laws held unconstitutional include a Maryland law imposing a tax on notes issued by a branch of the Bank of the United States, and a New Hampshire law altering a charter granted by the British Crown before the Revolution, which both violated the Contracts Clause. Other examples include an 1851 Ohio law that levied a bank tax at a higher rate than specified in the bank's charter, and a Missouri act that imposed a license fee on peddlers of out-of-state merchandise but exempted in-state peddlers, which was held to impose an unconstitutional burden on interstate commerce.

State laws vs. federal laws

The United States Constitution creates a federal system of government, where power is shared between the federal government and the state governments. Both the federal and state governments have their own court systems. Federal laws apply throughout the United States, to everyone in the country. State laws, on the other hand, apply to people who live or work in a particular state, commonwealth, territory, county, city, municipality, town, township, or village.

The federal government's powers are listed in the U.S. Constitution at Article I, Section 8. These include immigration, bankruptcy, the postal service, intellectual property, and the military. There are 50 states, each with its own system of laws and courts. Most states have laws covering family law, divorce, child custody, and guardianships.

Some topics are governed by both state and federal law, such as when federal funds are offered to a state. In the case of a conflict between federal and state law, the Supremacy Clause of the U.S. Constitution (Article VI) dictates that federal laws take precedence over state laws. This is because federal laws are considered the "supreme law of the land."

State laws can be held unconstitutional if they conflict with a federal statute, treaty, or the Supremacy Clause. For example, a California stamp tax imposed on bills of lading for gold or silver transported out of the state was void as it was a tax on exports forbidden by Article I, Section 10, Clause 2 of the Constitution. Similarly, a New York act that required the owner of an ocean-going passenger vessel to post a bond for each passenger contravened Congress's exclusive power to regulate foreign commerce.

The Contracts Clause

The Supreme Court has interpreted and applied the Contracts Clause in several cases. For example, in Home Building & Loan Association v. Blaisdell, the Court upheld a Minnesota law that temporarily restricted mortgage holders' ability to foreclose during the Great Depression, finding that the temporary nature of the contract modification and the emergency situation justified the law. The Court has also laid out a three-part test for determining whether a law conforms with the Contracts Clause in Energy Reserves Group v. Kansas Power & Light:

• The state regulation must not substantially impair a contractual relationship.
• The state must have a significant and legitimate purpose behind the regulation, such as addressing a broad social or economic problem.
• The law must be reasonable and appropriate for its intended purpose.

In addition, the Contracts Clause has been invoked to uphold the right of creditors to be paid in gold or silver when the property (bank notes) of a debtor is seized by the marshal of a state court. However, it is important to note that the clause does not cover judicial decisions, even if they affect existing contract rights.

The Supremacy Clause

The Supreme Court has relied on the Supremacy Clause to establish a robust role for the federal government in managing the nation's affairs. The Court has interpreted the clause as allowing for both express and implied preemption of state law by federal law. Express preemption occurs when federal law explicitly states its intent to preempt state law, while implied preemption occurs when that intent is implicit in the structure and purpose of federal law. The Court has also developed the doctrine of field preemption, which holds that some federal legislation implicitly prevents states from adopting any laws on the same general subject.

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