The Writ-Of-Erasure Fallacy

The power of judicial review is all too often regarded as something akin to an executive veto. When a court declares a statute unconstitutional or enjoins its enforcement, the disapproved law is described as having been “struck down” or rendered “void”—as if the judiciary holds a veto-like power to cancel or revoke a duly enacted statute. And the political branches carry on as though the court’s decision has erased the statute from the law books.

But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.

When judges or elected officials mistakenly assume that a court decision has canceled or revoked a duly enacted statute, they commit the “writ-of-erasure fallacy”—the fallacy that equates judicial review with a veto-like power to “strike down” legislation or delay its effective start date. This article identifies the origins of the fallacy, describes the ways in which the writ-of-erasure mindset has improperly curtailed the enforcement of statutes, and explores the implications that follow when judicial review is (correctly) understood as a temporary non-enforcement policy that leaves the disapproved statute in effect.

Congress as Elephant

Congress, considered in its entirety, seldom is an object of legal study. Scholars tend to concentrate on discrete features—its Commerce Clause authority, its power to declare war, or the impeachment functions of its chambers. This inclination toward a narrow focus reflects the fact that Congress is so multifaceted that even fathoming its complexity is rather daunting. So intimidating, in fact, that it has caused most scholars to shy away from a comprehensive treatment. This Essay attempts to fill that gap. The Constitution’s text and context suggest that the Founders envisioned Congress playing multiple constitutional functions. After comparing our Congress with its predecessor, the Continental Congress, this Essay describes six roles for Congress, only a few of which are familiar: Chief Lawmaker, Secondary Executive, Chief Facilitator and Overseer of the Magisterial Branches, State Overseer, and Enforcer of Constitutional Rights and Duties. Only when we appreciate Congress in all its complexity can we appreciate why Congress, as an institution, is more than the first branch amongst equals.

The Presumption of Civil Innocence

The presumption of innocence represents a political and moral consensus that criminal defendants should not be subject to punishment until adjudicated guilty under a strict standard of proof. Although this concept has long been recognized as the hallmark of the criminal law, its potential application to civil proceedings has been largely neglected. Civil defendants enjoy no presumption of innocence. As a result, civil defendants are frequently subject to immense, unrecoverable costs prior to any real forecast or determination of liability. Legal blindness to these costs has produced a system in which civil plaintiffs enjoy tremendous procedural advantages at almost every stage of litigation, thereby virtually nullifying the presumption of innocence, which is grounded in practical and normative concerns.

As a practical matter, the presumption of innocence is designed to shield innocent defendants from the financial costs, personal disruptions, invasions of privacy, and general intrusions on individual dignity associated with litigation. As a philosophical matter, it is rooted in ideals of justice and liberty that have historically served to constrain the worst effects of state coercion. Finally, as a legal matter, the presumption intersects conceptually with various judicial doctrines, including due process, the law of personal jurisdiction, and certain concepts familiar to the criminal law. All of these justifications for the criminal presumption apply with equal force to the civil system. A presumption of civil innocence is therefore essential to the development of a unifying conception of American law.