The Writ-Of-Erasure Fallacy

Article — Volume 104, Issue 5

104 Va. L. Rev. 933
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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 But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive.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.

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  Volume 104 / Issue 5  

Agency Design and the Zero-Sum Argument

By Daniel Richardson
104 Va. L. Rev. Online 136

A Tribute to Gordon Hylton

By Risa L. Goluboff
104 Va. L. Rev. 843

Subsidizing Segregation

By Joy Milligan
104 Va. L. Rev. 847

The Writ-Of-Erasure Fallacy

By Jonathan F. Mitchell
104 Va. L. Rev. 933