I presume this suit is against John Ashcroft as Attorney General, seeking to enjoin enforcement of the law. Ashcroft of course has no authority to enforce it until it becomes the law. Once it does, the suit is ripe.
On 31 Oct 2003 at 16:07, Edward A Hartnett wrote: > I guess if "one has a sufficiently robust notion of judicial power," > judges can do just about anything. For example, if Sandy's suggested > theory is correct, a similar injunction (or declaratory judgment) > could be issued against members of Congress to prevent them from > voting for a bill that the judges believe to be unconstitutional. > > Even if one rejects the view that the president enjoys absolute > immunity from official capacity injunctions, see Mississippi v. > Johnson (1866), any claim against legislators should, at the very > least, be blocked by absolute _legislative_ immunity. See Eastland > v. USSF (1975). I would suggest that, at least from the functional > point of view that is used in immunity doctrine, a presidential > decision to sign or veto a bill is better understood as a > "legislative" rather than an "executive" act. (That is, the > presentment process calls for the president's involvement in a > legislative function, similar to the way that the appointment process > calls for the Senate's involvement in an executive function; hence > "executive" sessions of the Senate.) See Supreme Court of VA v. > Consumers Union (1980) (extending absolute legislative immunity to a > state supreme court in its role as promulgator of disciplinary rules). > If that is right, then the president has absolute legislative > immunity from an injunction involving the signing or vetoing of laws > -- _even if_ he lacks absolute immunity for his executive actions. > > I know that immunity doctrines are not highly favored by most > academics, and tend to be viewed as evidence of disrespect for law, or > at best compromises with the rule of law. But to my mind, one > important and valuable function of absolute immunity is precisely to > keep constitutional dialogue between the branches open and guard > aganst judicial monopolization of constitutional interpretation. > > Ed Hartnett > Seton Hall > > > > > > Sanford Levinson > <[EMAIL PROTECTED] To: > [EMAIL PROTECTED] UTEXAS.EDU> > cc: Sent by: Discussion Subject: > Re: Challenging a (presumed) Future Law list > for con law professors <[EMAIL PROTECTED] > .ucla.edu> > > > 10/31/03 03:32 PM > Please respond to > Discussion list for > con law professors > > > > > > > If one has a sufficiently robust notion of judicial power, isn't this > the logical equivalent of seeking a declaratory judgment that it would > be unconstitutional for the President not to veto a law because to > sign it would violate his/her oath of office? If Sheriff Jones > announces that the police will come out in force to prevent a > political gathering in the public forum, I presume that one can go to > court immediately upon the announcement rather than wait until the > police actually try to prevent the gathering. (And, indeed, one can > probably get injunctive, and not simply declaratory, relief.) Is > the difference in the two hypotheticals the fact that the President > merely signs the legislation, he doesn't actually declare an intention > to act upon it? Or do we simply regard it as lese-majeste to bring > the president to court when he announces an intention to violate his > oath of office? (I'm not advocating that suits for such injunctive > relief are desirable, but I do wonder what the difference is between > this and any other suit for a declaratory judgment based on > anticipated future action. > > sandy > > At 02:13 PM 10/31/2003, you wrote: > Talk about your races to the courthouse -- in this case, before the > fact! > > The ACLU and CPR have each filed suit challenging the > constitutionality of the so-called Partial Birth Abortion Act, which > the President has not yet signed. > http://www.washingtonpost.com/wp-dyn/articles/A47078-2003Oct31.html > > "We want the judge to be in a position to issue an order as soon as > the bill is signed," said one of the attorneys. > > Anyone aware of any precedent for such a preemptive move? I'm fairly > certain no injunction could be issued before the bill becomes law. > But If the President signs the bill, can a court then issue an > injunction in these suits? I would imagine she could, because the > originally unripe suit would have ripened in the interim between the > filing of the complaint and the issuance of the injunction; but I > don't think I've ever seen a case quite like this one. > Ira C. ("Chip") Lupu F. Elwood & Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NW Washington D.C 20052 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED]
