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Something I've been wondering in recent cases where courts are overturning recent government action, whether unconstitutional bills passed into law, or unconsti

Something I've been wondering in recent cases where courts are overturning recent government action, whether unconstitutional bills passed into law, or unconstitutional executive actions that overstep authority, is where's the penalty for committing those actions in the first place? The state of New York famously responded to the outcome of NYSRPA v. Bruen, which overturned the defacto ban on concealed carry, by declaring nearly all public spaces "sensitive areas" in which licensed individuals may not carry for their protection. Regardless of one's opinion of said rights, how do courts blatantly ignore rulings and orders from higher courts with no repercussions? How do courts declare certain executive orders unconstitutional, and yet the perpetrators, who took an oath to uphold and defend said rights and values, face no consequences?

calvinmorrison 4y ago
Unless the government actually about faces and holds the elected officials responsible, it devolves into unsanctioned violence, be it domestic terrorism, civil war, unrest, whatever the game of the week. That's what happens.
StanislavPetrov 4y ago
>Something I've been wondering in recent cases where courts are overturning recent government action, whether unconstitutional bills passed into law, or unconstitutional executive actions that overstep authority, is where's the penalty for committing those actions in the first place? Unfortunately the penalty falls only on the taxpayer, and not at all on the lawmakers who pass unconstitutional laws or declare executive actions that they do not have the legal authority to declare as law. Indeed, lawmakers routinely flaunt their ability to enact laws that they know are unconstitutional across the political spectrum, to abortion laws (pre Dobbs) in "red states" to gun laws in "blue states". The recent NY legislation in the wake of the New York State Rifle and Pistol Association v. Bruen decision is the perfect example. It contained all sorts of blatantly unconstitutional measures, like requiring those applying for gun permits to turn over all their social media accounts for scrutiny. But since there is no potential penalty suffered by lawmakers who willfully and knowingly violate the Constitution, this sort of unlawful, blatant political pandering is going to continue.
somenameforme 4y ago
Imagine, for a minute, that it was a crime for a politician to try to pass unlawful laws. That would, sooner or later, be abused by the group with political control to effectively criminalize opposition. Declare their opponents' efforts unlawful, convict them, and they're out of the way. You have to consider not only the effects of nominal usage, but also the effects of abuse. In this case, they're extreme.
club_tropical 4y ago
Penalties are generally meted out using the press (smear reputations through excessive focus on one person, show kompromat) and economic actors (withdraw sponsors, withdraw funding, etc). In the rare case that someone fails to be adequately railroaded using press and economics, yes, judges do mete out hefty fines and jail sentences, as a punishment of last resort against regime opponents, or give slaps on the wrist to regime allies (in this case, slap on the wrist). All justified with a 20-page verbal "explanation", of course, but those are just meaningless words for ultimately political decisions.
widowlark 4y ago
it's important to note that this is not the top court in new york, rather the beginning of the process of retrial and appeals. So, in effect, nothing will happen as a result of this ruling other than more appeals
SllX 4y ago
The consequences in theory are political. Theoretically Congress should be impeaching Presidents and expelling members that do not uphold their oaths. Executing consequences into popular Presidents or other members of Congress would also be politicized and have political consequences for Congress, so it doesn’t happen. That said, leaving impeachment or expulsion of legislative members to the Courts would also give them too much power. So the real consequences are at election time. If you ran to retain your seat, and lost, that’s your comeuppance. It’s not granular, but it gets the job done eventually. This is also why control of the White House flips back and forth so much: nothing any President does is particularly popular most of the time, they just have the votes to do it. Incumbents do get massive advantages in staying power but in the present day, two terms looks like about the maximum we would be able to tolerate a President’s political party in the Oval Office and typically after midterms they no longer have the votes in Congress either. Most of this is generally applicable to the States, but I don’t know New York politics specifically but would note that the previous Governor was put into a position where he was pretty much forced to resign both for scandals and for the actions he took while in office; and that was a slow slow build up.
- kodah 4y ago
  This is pretty good insight. Now I'm wondering what public data sources show overturned bills as well as all sponsors of a bill. I think Congress' website tracks the latter, but the former might be difficult to obtain.
- lkrubner 4y ago
  Christopher H. Achen & Larry M. Bartels wrote a whole book showing that voters do not keep track of what elected officials do, and so politicians are not punished for bad behavior, see excerpt here: https://demodexio.substack.com/p/longer-elected-terms-lead-to-better https://demodexio.substack.com/p/longer-elected-terms-lead-t...
  - SllX 4y ago
    Correct, which is why I spoke mostly of Presidents and Parties who are all big enough targets that most American voters do form opinions about what they’re up to, even with only vague notions about the details. Individual members of Congress can usually skate by, but that’s only as true as their district or State is uncompetitive. And in States where “big issue” lawmaking is deferred to the public via referendum on a regular basis there’s almost no incentive at all to mind what the legislature or governor is doing; especially if tax increases also have to be voter approved. Who do you hold accountable when it’s the voters who make a bad decision about a law?
KennyBlanken 4y ago
It's a little weird to be concerned about this now around COVID policies, and not during the last fifty years of laws passed by republican state legislatures that barely last past the ink drying on the law before getting slapped with an injunction and ultimately struck down by the courts, but not after the state AG wastes millions of dollars in taxpayer funds fighting it as high up the federal court system as possible. Just to name a few: Book bans, anti-LGBTQ bills (bathroom bills and more), edicts on what doctor can or cannot say to patients (or must say to patients), ag-gag, voting restrictions, and anti-abortion-choice laws. All passed with the full knowledge they'll be struck down almost immediately, with the express purpose of tying up funds of progressive non-profits and getting to brag to their base about how they're trying to further 'The Cause' (you know how conservatives are always going on about "liberal virtue-signaling? As always, they're great at projection.)
- SV_BubbleTime 4y ago
  Hot take to look at the oversteps of authority around covid response… and start blaming Republicans.
- DAVer98 4y ago
  - mjmsmith 4y ago
    Needs more random capitalization.
    - AlexMoffat 4y ago
      Their comment history supports that hypothesis.
  - nkozyra 4y ago
    > Eh you do realise the entire country just spent two years under house arrest? Really? Two years? House arrest? I must have missed that.
- 4y ago
systemvoltage 4y ago
The Bonta team in California has been eggregiously playing the circuit-to-district football, violating fundamental rights of citizens. The 13th circuit is in bed with California state district attorney and the state legislator (both the husband and wife, "Bontas"). Wife is a legislator and the husband is the CA District attorney. Lawyers are totally baffled at what is going on.
barry-cotter 4y ago
> How do courts declare certain executive orders unconstitutional, and yet the perpetrators, who took an oath to uphold and defend said rights and values, face no consequences? Same way no one suffered any consequences for deciding to support the opposition in the Syrian civil war to piss off Assad long after it was obvious they weren’t going to get him out and the only consequence was going to be lots of dead Stands mom Syrians. Same way there were no consequences for bombing Libya into civil war and open air slave markets. Same way there were no consequences for no WMDs in Iraq. There needs to be a coalition to make them pay. It needs to be not just powerful enough, but committed.
RC_ITR 4y ago
>where's the penalty for committing those actions in the first place You've hit the core problem of society/government that countless generations have tried to obfuscate via an academic body that implies that social interactions can be studied/understood like natural sciences. At the core, all social structure is built on the threat of violence - Commit non-violent white collar crime? Show up to court, because if you don't you'll get arrested. Run from the police when they try to arrest you? You'll get taken by force. Reject Capitalism? Starve to death on the streets. Sure, there's political theory and economics can act like "utility" drives all things, but at the end of the day, it's the threat of some sort of violently bad outcome that keeps society in check. The recent rub is that we have (probably correctly) decided that violence is bad and we should all just be chill and work together because it's good for all of us. We've also created hyper complex systems that couldn't even theoretically be kept in check with violence (Who am I going to punch when I was duped by a crypto scam?). So instead of angry mobs tarring and feathering bad politicians/business people (probably bad) we just grouse on the Internet (bad but not as bad). And stuff like this keeps happening, because an increasingly large number of people (especially the wealthy and politicians) are realizing the threat of violence isn't that great anymore. Like look at Elon Musk - his whole deal is proving that there are no bad consequences to doing whatever he wants and he's revered for it because people who still have a risk of violence in their lives are jealous but believe they one day could get to a similar place. There's not really a solution other than figuring out how to may people be chill and cooperative on their own (good luck).
- cr4nberry 4y ago
  > At the core, all social structure is built on the threat of violence - Commit non-violent white collar crime? Show up to court, because if you don't you'll get arrested. Run from the police when they try to arrest you? You'll get taken by force. Is this true for all social structures, or just our current one? The social structures that emerge are time dependent. The people living in the middle ages had no way of predicting the social structures of today. Since we can't predict the social structures that the future will bring, how could we know for sure that there isn't X social structure that doesn't need violence to propagate itself? We can talk about the likelihood of X social structure emerging, sure. But to make the universal claim about all social structures, viz "human nature", is flawed reasoning
crazygringo 4y ago
In cases of judicial review where the courts strike down a law, it's usually not as simple as you're trying to make it. First of all it's not at all clear in advance that the laws are unconstitutional, and that the lawmakers are "perpetrators". Plenty of times the laws are challenged and the courts uphold them. The whole point is that laws often push boundaries or address areas not previously addressed by the courts, and of course courts are political too. Lawmakers are trying to do what they believe is right for the people, and courts are too, and sometimes they disagree, and all of this is legitimate. And second, what would it even mean for a court to "penalize" lawmakers? For the government to penalize itself? The lawmakers are elected and often passing laws their constituents voted them into office precisely in order to pass. Do you want to fine the lawmakers and take away their salary? Do you want to fine the people who voted for them? No, of course not. That's ludicrous. Just as ludicrous as legislatures (or governors) fining judges when they think judges decide cases wrongly. This isn't criminal, it's legitimate disagreement over what policy and law ought to be. Penalizing lawmakers doesn't make any sense. In the end the court overturns something, and if a change is dangerous/disruptive enough the courts place an immediate injunction until the final decision is made. This is how democracies work. (On the other hand, if a legislator breaks a law personally, e.g. murders somebody, they are tried personally and go to jail just like anybody else.)
- muaytimbo 4y ago
  I’d like to see them held accountable. Every person who was affected by an unconstitutional law should have the ability to sue for damages arising from the intentional abridgment of their constitutional rights. Our rights would remain more intact if lawmakers actually faced personal financial penalties when they try to deny us the already very few rights afforded to us by the constitution.
  - crazygringo 4y ago
    How are you going to handle it when the Supreme Court reverses itself on decisions decades later? Or even just a few years later when a new Justice is added? Does all the money from damages get returned, with interest and accounting for inflation? Law is never settled and courts disagree and reverse frequently... So I don't think you've really thought this through... :) Including who is going to pay for all those damages, which is going to be the taxpayers, so hello much higher taxes! ;)
ss108 4y ago
The remedy in American law is supposed to be electoral, not legal.
seanmcdirmid 4y ago
> How do courts declare certain executive orders unconstitutional, and yet the perpetrators, who took an oath to uphold and defend said rights and values, face no consequences? Isn't this like saying developers should suffer consequences if they allow bugs to get into their code? Because we are perpetrators of flawed code, like law makers are perpetrators of flawed laws? > Regardless of one's opinion of said rights, how do courts blatantly ignore rulings and orders from higher courts with no repercussions? Because to do otherwise is to abandon civil process (where people get to argue about laws, and they have the right to be wrong without further consequence than being wrong) and enters into what would effectively devolve into mob rule.
- ClumsyPilot 4y ago
  > Isn't this like saying developers should suffer consequences if they allow bugs to get into their code? If your code kills someone in a foreceeable and predictable manner, then you should. Other branches of engineering have to do their work properly
- collegeburner 4y ago
  because its not always accidental. look at abortion laws before there was reason to challenge them, or many blue state gun laws. they're giant "fuck you"s to getting told to stop doing smth stupid. like NY gets its gun law overturned so its like "fuck you we're gonna make super invasive requirements for testing (which you cant even do in state) and turning over social media handles (hella chilling effect)." or almost all the lockdown orders that got overturned, but after 1-2 years of being in effect. really grinds my gears cuz they KNOW these laws will get killed in court but it will take 3-4 years so in the mean time stfu and deal with it.
  - shadowgovt 4y ago
    That's actually an old and effective political strategy. Perhaps distasteful, but part of the game in the same sense that icing the kicker in football is part of the game (as consequence of the rules of time-outs). I've even seen it used to good effect to strong-arm otherwise unreachable organizations when they choose to be anti-social. During the housing crash, one of the major non-profit universities a city panicked about its investments going shaky and abruptly decided to stop paying into some multi-decades-long standing donations that back-stopped some city services. The non-profit was paying into that donation pool because state law that had made sense in the 1900s and a lot less sense in 2000 made those non-profits non-taxable (but they had eaten up a significant percent of available real estate in the city center, none of which could generate tax revenue to pay for city services). The city responded by preparing an ordnance that would tax out-of-town students directly. The uni responded that this would be obviously illegal on its face as per state law. The city responded that they believed the uni was presenting a reasonable legal theory that they were happy to debate back-and-forth in county, circuit, state, and appeals court for the next five years. The university returned to the negotiating table and hammered out a new plan to pay a percentage of their former amount into the donation pool, preventing what would have otherwise been a heavy disruption in city services at a time when everyone was hurting from the housing crash. Messy, but this kind of creation of leverage is what makes political systems operate at all at multiple scales of governance.
googlryas 4y ago
The separate branches of government limit each other, but they can't impose punishments on the other. That's up to the electorate.
- colechristensen 4y ago
  They can, if the laws are written with criminal consequences. Most are not, with good reason. So many things which end up in courts just aren’t clear enough for the outcome to be obvious.
shadowgovt 4y ago
In general, such consequences would be applied by the public. If the people feel that the executive overreached and is no longer honoring their oath, the people don't re-elect that executive. There are some exceptions (such as the impeachment power of the federal Congress), but in a system where the public elects the executive, the last recourse of a bad executive is the public's right to elect someone else. And even in cases like the power of congressional impeachment, the punishment they can extend is removal from office and nothing more. No, if someone broke the law in the process of exercising the executive authority, that's a different issue. But we don't generally have laws of the form "the executive is not allowed to infringe on non-fundamental liberties during an emergency," because history shows that emergencies happen and sometimes people just have to be told what to do (arguably, that's one of the reasons we bother to have an executive at various levels of government).
nostromo 4y ago
You’re seeing this play out with student loan forgiveness. Most legal scholars don’t believe it’s legal and will be overturned. But everyone also agrees any money given out will not be returned, so they’re rushing to get as much debt forgiven before it’s overturned.
- jackcosgrove 4y ago
  Possession is nine tenths of the law.
ksherlock 4y ago
Ancient Athens -- birthplace of democracy -- had an answer [1]. The sponsor of a law that was later found to be, in modern parlance, unconstitutional, could be fined. Also worth considering: ostracism [2]. 1: https://en.wikipedia.org/wiki/Graphe_paranomon https://en.wikipedia.org/wiki/Graphe_paranomon 2: https://en.wikipedia.org/wiki/Ostracism https://en.wikipedia.org/wiki/Ostracism
coinbasetwwa 4y ago
This is what 18 USC 242 was written for. Allowing for punishments up to the death penalty for depravation of rights under the color of law. You’d need a federal government who would be willing to prosecute such a case however, but it’s possible.

calvinmorrison 4y ago

Unless the government actually about faces and holds the elected officials responsible, it devolves into unsanctioned violence, be it domestic terrorism, civil war, unrest, whatever the game of the week. That's what happens.

StanislavPetrov 4y ago

>Something I've been wondering in recent cases where courts are overturning recent government action, whether unconstitutional bills passed into law, or unconstitutional executive actions that overstep authority, is where's the penalty for committing those actions in the first place? Unfortunately the penalty falls only on the taxpayer, and not at all on the lawmakers who pass unconstitutional laws or declare executive actions that they do not have the legal authority to declare as law. Indeed, lawmakers routinely flaunt their ability to enact laws that they know are unconstitutional across the political spectrum, to abortion laws (pre Dobbs) in "red states" to gun laws in "blue states". The recent NY legislation in the wake of the New York State Rifle and Pistol Association v. Bruen decision is the perfect example. It contained all sorts of blatantly unconstitutional measures, like requiring those applying for gun permits to turn over all their social media accounts for scrutiny. But since there is no potential penalty suffered by lawmakers who willfully and knowingly violate the Constitution, this sort of unlawful, blatant political pandering is going to continue.

somenameforme 4y ago

Imagine, for a minute, that it was a crime for a politician to try to pass unlawful laws. That would, sooner or later, be abused by the group with political control to effectively criminalize opposition. Declare their opponents' efforts unlawful, convict them, and they're out of the way. You have to consider not only the effects of nominal usage, but also the effects of abuse. In this case, they're extreme.

club_tropical 4y ago

Penalties are generally meted out using the press (smear reputations through excessive focus on one person, show kompromat) and economic actors (withdraw sponsors, withdraw funding, etc). In the rare case that someone fails to be adequately railroaded using press and economics, yes, judges do mete out hefty fines and jail sentences, as a punishment of last resort against regime opponents, or give slaps on the wrist to regime allies (in this case, slap on the wrist). All justified with a 20-page verbal "explanation", of course, but those are just meaningless words for ultimately political decisions.

widowlark 4y ago

it's important to note that this is not the top court in new york, rather the beginning of the process of retrial and appeals. So, in effect, nothing will happen as a result of this ruling other than more appeals

SllX 4y ago

The consequences in theory are political. Theoretically Congress should be impeaching Presidents and expelling members that do not uphold their oaths. Executing consequences into popular Presidents or other members of Congress would also be politicized and have political consequences for Congress, so it doesn’t happen. That said, leaving impeachment or expulsion of legislative members to the Courts would also give them too much power. So the real consequences are at election time. If you ran to retain your seat, and lost, that’s your comeuppance. It’s not granular, but it gets the job done eventually. This is also why control of the White House flips back and forth so much: nothing any President does is particularly popular most of the time, they just have the votes to do it. Incumbents do get massive advantages in staying power but in the present day, two terms looks like about the maximum we would be able to tolerate a President’s political party in the Oval Office and typically after midterms they no longer have the votes in Congress either. Most of this is generally applicable to the States, but I don’t know New York politics specifically but would note that the previous Governor was put into a position where he was pretty much forced to resign both for scandals and for the actions he took while in office; and that was a slow slow build up.

kodah 4y ago
This is pretty good insight. Now I'm wondering what public data sources show overturned bills as well as all sponsors of a bill. I think Congress' website tracks the latter, but the former might be difficult to obtain.
lkrubner 4y ago
Christopher H. Achen & Larry M. Bartels wrote a whole book showing that voters do not keep track of what elected officials do, and so politicians are not punished for bad behavior, see excerpt here: https://demodexio.substack.com/p/longer-elected-terms-lead-to-better https://demodexio.substack.com/p/longer-elected-terms-lead-t...
- SllX 4y ago
  Correct, which is why I spoke mostly of Presidents and Parties who are all big enough targets that most American voters do form opinions about what they’re up to, even with only vague notions about the details. Individual members of Congress can usually skate by, but that’s only as true as their district or State is uncompetitive. And in States where “big issue” lawmaking is deferred to the public via referendum on a regular basis there’s almost no incentive at all to mind what the legislature or governor is doing; especially if tax increases also have to be voter approved. Who do you hold accountable when it’s the voters who make a bad decision about a law?

KennyBlanken 4y ago

It's a little weird to be concerned about this now around COVID policies, and not during the last fifty years of laws passed by republican state legislatures that barely last past the ink drying on the law before getting slapped with an injunction and ultimately struck down by the courts, but not after the state AG wastes millions of dollars in taxpayer funds fighting it as high up the federal court system as possible. Just to name a few: Book bans, anti-LGBTQ bills (bathroom bills and more), edicts on what doctor can or cannot say to patients (or must say to patients), ag-gag, voting restrictions, and anti-abortion-choice laws. All passed with the full knowledge they'll be struck down almost immediately, with the express purpose of tying up funds of progressive non-profits and getting to brag to their base about how they're trying to further 'The Cause' (you know how conservatives are always going on about "liberal virtue-signaling? As always, they're great at projection.)

SV_BubbleTime 4y ago
Hot take to look at the oversteps of authority around covid response… and start blaming Republicans.
DAVer98 4y ago
- mjmsmith 4y ago
  Needs more random capitalization.
  - AlexMoffat 4y ago
    Their comment history supports that hypothesis.
- nkozyra 4y ago
  > Eh you do realise the entire country just spent two years under house arrest? Really? Two years? House arrest? I must have missed that.
4y ago

systemvoltage 4y ago

The Bonta team in California has been eggregiously playing the circuit-to-district football, violating fundamental rights of citizens. The 13th circuit is in bed with California state district attorney and the state legislator (both the husband and wife, "Bontas"). Wife is a legislator and the husband is the CA District attorney. Lawyers are totally baffled at what is going on.

barry-cotter 4y ago

> How do courts declare certain executive orders unconstitutional, and yet the perpetrators, who took an oath to uphold and defend said rights and values, face no consequences? Same way no one suffered any consequences for deciding to support the opposition in the Syrian civil war to piss off Assad long after it was obvious they weren’t going to get him out and the only consequence was going to be lots of dead Stands mom Syrians. Same way there were no consequences for bombing Libya into civil war and open air slave markets. Same way there were no consequences for no WMDs in Iraq. There needs to be a coalition to make them pay. It needs to be not just powerful enough, but committed.

RC_ITR 4y ago

>where's the penalty for committing those actions in the first place You've hit the core problem of society/government that countless generations have tried to obfuscate via an academic body that implies that social interactions can be studied/understood like natural sciences. At the core, all social structure is built on the threat of violence - Commit non-violent white collar crime? Show up to court, because if you don't you'll get arrested. Run from the police when they try to arrest you? You'll get taken by force. Reject Capitalism? Starve to death on the streets. Sure, there's political theory and economics can act like "utility" drives all things, but at the end of the day, it's the threat of some sort of violently bad outcome that keeps society in check. The recent rub is that we have (probably correctly) decided that violence is bad and we should all just be chill and work together because it's good for all of us. We've also created hyper complex systems that couldn't even theoretically be kept in check with violence (Who am I going to punch when I was duped by a crypto scam?). So instead of angry mobs tarring and feathering bad politicians/business people (probably bad) we just grouse on the Internet (bad but not as bad). And stuff like this keeps happening, because an increasingly large number of people (especially the wealthy and politicians) are realizing the threat of violence isn't that great anymore. Like look at Elon Musk - his whole deal is proving that there are no bad consequences to doing whatever he wants and he's revered for it because people who still have a risk of violence in their lives are jealous but believe they one day could get to a similar place. There's not really a solution other than figuring out how to may people be chill and cooperative on their own (good luck).

cr4nberry 4y ago
> At the core, all social structure is built on the threat of violence - Commit non-violent white collar crime? Show up to court, because if you don't you'll get arrested. Run from the police when they try to arrest you? You'll get taken by force. Is this true for all social structures, or just our current one? The social structures that emerge are time dependent. The people living in the middle ages had no way of predicting the social structures of today. Since we can't predict the social structures that the future will bring, how could we know for sure that there isn't X social structure that doesn't need violence to propagate itself? We can talk about the likelihood of X social structure emerging, sure. But to make the universal claim about all social structures, viz "human nature", is flawed reasoning

crazygringo 4y ago

In cases of judicial review where the courts strike down a law, it's usually not as simple as you're trying to make it. First of all it's not at all clear in advance that the laws are unconstitutional, and that the lawmakers are "perpetrators". Plenty of times the laws are challenged and the courts uphold them. The whole point is that laws often push boundaries or address areas not previously addressed by the courts, and of course courts are political too. Lawmakers are trying to do what they believe is right for the people, and courts are too, and sometimes they disagree, and all of this is legitimate. And second, what would it even mean for a court to "penalize" lawmakers? For the government to penalize itself? The lawmakers are elected and often passing laws their constituents voted them into office precisely in order to pass. Do you want to fine the lawmakers and take away their salary? Do you want to fine the people who voted for them? No, of course not. That's ludicrous. Just as ludicrous as legislatures (or governors) fining judges when they think judges decide cases wrongly. This isn't criminal, it's legitimate disagreement over what policy and law ought to be. Penalizing lawmakers doesn't make any sense. In the end the court overturns something, and if a change is dangerous/disruptive enough the courts place an immediate injunction until the final decision is made. This is how democracies work. (On the other hand, if a legislator breaks a law personally, e.g. murders somebody, they are tried personally and go to jail just like anybody else.)

muaytimbo 4y ago
I’d like to see them held accountable. Every person who was affected by an unconstitutional law should have the ability to sue for damages arising from the intentional abridgment of their constitutional rights. Our rights would remain more intact if lawmakers actually faced personal financial penalties when they try to deny us the already very few rights afforded to us by the constitution.
- crazygringo 4y ago
  How are you going to handle it when the Supreme Court reverses itself on decisions decades later? Or even just a few years later when a new Justice is added? Does all the money from damages get returned, with interest and accounting for inflation? Law is never settled and courts disagree and reverse frequently... So I don't think you've really thought this through... :) Including who is going to pay for all those damages, which is going to be the taxpayers, so hello much higher taxes! ;)

ss108 4y ago

The remedy in American law is supposed to be electoral, not legal.

seanmcdirmid 4y ago

> How do courts declare certain executive orders unconstitutional, and yet the perpetrators, who took an oath to uphold and defend said rights and values, face no consequences? Isn't this like saying developers should suffer consequences if they allow bugs to get into their code? Because we are perpetrators of flawed code, like law makers are perpetrators of flawed laws? > Regardless of one's opinion of said rights, how do courts blatantly ignore rulings and orders from higher courts with no repercussions? Because to do otherwise is to abandon civil process (where people get to argue about laws, and they have the right to be wrong without further consequence than being wrong) and enters into what would effectively devolve into mob rule.

ClumsyPilot 4y ago
> Isn't this like saying developers should suffer consequences if they allow bugs to get into their code? If your code kills someone in a foreceeable and predictable manner, then you should. Other branches of engineering have to do their work properly
collegeburner 4y ago
because its not always accidental. look at abortion laws before there was reason to challenge them, or many blue state gun laws. they're giant "fuck you"s to getting told to stop doing smth stupid. like NY gets its gun law overturned so its like "fuck you we're gonna make super invasive requirements for testing (which you cant even do in state) and turning over social media handles (hella chilling effect)." or almost all the lockdown orders that got overturned, but after 1-2 years of being in effect. really grinds my gears cuz they KNOW these laws will get killed in court but it will take 3-4 years so in the mean time stfu and deal with it.
- shadowgovt 4y ago
  That's actually an old and effective political strategy. Perhaps distasteful, but part of the game in the same sense that icing the kicker in football is part of the game (as consequence of the rules of time-outs). I've even seen it used to good effect to strong-arm otherwise unreachable organizations when they choose to be anti-social. During the housing crash, one of the major non-profit universities a city panicked about its investments going shaky and abruptly decided to stop paying into some multi-decades-long standing donations that back-stopped some city services. The non-profit was paying into that donation pool because state law that had made sense in the 1900s and a lot less sense in 2000 made those non-profits non-taxable (but they had eaten up a significant percent of available real estate in the city center, none of which could generate tax revenue to pay for city services). The city responded by preparing an ordnance that would tax out-of-town students directly. The uni responded that this would be obviously illegal on its face as per state law. The city responded that they believed the uni was presenting a reasonable legal theory that they were happy to debate back-and-forth in county, circuit, state, and appeals court for the next five years. The university returned to the negotiating table and hammered out a new plan to pay a percentage of their former amount into the donation pool, preventing what would have otherwise been a heavy disruption in city services at a time when everyone was hurting from the housing crash. Messy, but this kind of creation of leverage is what makes political systems operate at all at multiple scales of governance.

googlryas 4y ago

The separate branches of government limit each other, but they can't impose punishments on the other. That's up to the electorate.

colechristensen 4y ago
They can, if the laws are written with criminal consequences. Most are not, with good reason. So many things which end up in courts just aren’t clear enough for the outcome to be obvious.

shadowgovt 4y ago

In general, such consequences would be applied by the public. If the people feel that the executive overreached and is no longer honoring their oath, the people don't re-elect that executive. There are some exceptions (such as the impeachment power of the federal Congress), but in a system where the public elects the executive, the last recourse of a bad executive is the public's right to elect someone else. And even in cases like the power of congressional impeachment, the punishment they can extend is removal from office and nothing more. No, if someone broke the law in the process of exercising the executive authority, that's a different issue. But we don't generally have laws of the form "the executive is not allowed to infringe on non-fundamental liberties during an emergency," because history shows that emergencies happen and sometimes people just have to be told what to do (arguably, that's one of the reasons we bother to have an executive at various levels of government).

nostromo 4y ago

You’re seeing this play out with student loan forgiveness. Most legal scholars don’t believe it’s legal and will be overturned. But everyone also agrees any money given out will not be returned, so they’re rushing to get as much debt forgiven before it’s overturned.

jackcosgrove 4y ago
Possession is nine tenths of the law.

ksherlock 4y ago

Ancient Athens -- birthplace of democracy -- had an answer [1]. The sponsor of a law that was later found to be, in modern parlance, unconstitutional, could be fined. Also worth considering: ostracism [2]. 1: https://en.wikipedia.org/wiki/Graphe_paranomon https://en.wikipedia.org/wiki/Graphe_paranomon 2: https://en.wikipedia.org/wiki/Ostracism https://en.wikipedia.org/wiki/Ostracism

coinbasetwwa 4y ago

This is what 18 USC 242 was written for. Allowing for punishments up to the death penalty for depravation of rights under the color of law. You’d need a federal government who would be willing to prosecute such a case however, but it’s possible.