[a lot about the following: In a message dated 8/14/2003 2:44:15 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:There is so much that can be written about this subject, and Bobby's bottom line, that there doesn't seem to be any meaningful difference between "nullifying" and "not giving effect in a case before the court," is just one the issues.whether courts can "nullify" unconstitutional laws, or whether courts will simply not give effect to unconstitutional laws in cases pending before them, which is what the Court did in Marbury as well as Dred Scott.
What does it mean to "nullify" a law that a court finds unconstitutional? The statute remains on the books unless and until repealed by statute. Were the court to change its mind and overrule its prior decision that the law was unconstitutional, the law would be in effect without further action. So it might be said that "nullifying" means nullifying any legal effect the law might have; the court decision does not have any formal, positivist effect.
But what if the court that finds the law unconstitutional is not the Supreme Court of the United States? Imagine the losing side does not seek cert. from a state court or federal court of appeals, or the Supreme Court denies cert. As to the parties to the particular case, the federal law is "nullified." But what about non-parties outside the jurisdiction of that court? We understand that the law is not "nullified" as to them. This clarifies that the effect of the court decision as to non-parties is based upon stare decisis, which then raises a whole 'nother question as to whether stare decisis is or is not constitutionally based, required, or whatever. In any case, whatever the limits of stare decisis are, the law deemed unconstitutional can only be "nullified" as to non-parties subject to those limitations. There is also the question of the effect of the decision on non-parties within the jurisdiction of the court; is it law as to them or merely a good indicator of what the court will do if a case raising the issue comes before it? This, of course, is the Cooper v. Aaron issue.
It also may shed some light on the issue to think of the President "nullifying" laws. For instance, imagine that Presidents (who uniformly announced their view that one house vetoes were unconstitutional) had acted on the basis of that belief, as some believe they should, given their oath of office to uphold the Constitution. Chadha is told not to worry, the INS will not give effect to the one house veto of his suspension of deportation, as opposed to doing what it did -- saying that despite its position that the veto was unconstitutional, the INS would give effect to it, and forcing Chadha to sue. Presumably, no one can sue to deport Chadha; certainly a member of Congress does not have standing to sue merely because he/she believes the President is violating a law he/she voted for. If no one can sue, the President has "nullified" the law by not giving it effect. This might be the status of the War Powers Resolution.
As to judicial supremacy, there is no question that from at least the Steel Seizure case and United States v. Nixon the President accepts that the courts are supreme in their application of the Constitution to the case before it, even when there is a dispute between the President and the Court over the Constitution. When this became accepted, I don't know, but I am confident that Jefferson and Jackson would have reacted differently from Truman and Nixon.
Bill Funk
Lewis & Clark Law School
