One of the cases is being argued Wednesday morning,
at least a day before the law takes effect, but it appears that the plaintiff is
requesting only that judge issue an injunction "as soon as the bill becomes
law." http://www.crlp.org/pr_03_1103pba.html
----- Original Message -----
Sent: Saturday, November 01, 2003 12:17
PM
Subject: Re: Challenging a (presumed)
Future Law
I haven't been able to find the ACLU or CPR
complaints online, but here's a third one, filed by Planned
Parenthood:
As Chip predicted, AG Ashcroft is the
defendant in his official capacity. The complaint does not expressly ask
the court to grant the requested declaratory or injunctive relief
prior to the effective date of the Act.
----- Original Message -----
Sent: Friday, October 31, 2003 4:25
PM
Subject: Re: Challenging a (presumed) Future
Law
> 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]
|
