In a recent Justia blog post, Illinois law dean Vikram David Amar and professor Jason Mazzone consider whether (and when) a legislature should pass laws that court are likely to invalidate under current precedent. Amar and Mazzone argue that when legislatures enact laws that are at the time unenforceable, the legislatures are not necessarily wasting legislative resources or defying constitutional limits, but sometimes helpfully informing the work of other governmental actors and guiding the resolution of constitutional issues. They write:
"...Statutes enacted but that don’t take effect until a change in the constitutional landscape could have an interesting—and potentially useful—impact on cases in which courts count up states for purposes of determining whether a right should be recognized, and in particular for purposes of deciding whether a prior decision accepting or rejecting a right should be overturned. Take capital punishment. Let’s say one state adopts a brand new method of execution. The Supreme Court rules that questions about the level of pain involved and the fact that the method is unique to the single state renders it cruel and unusual. No other state can use the prohibited method. But other states could enact laws providing for the method to be used in the event that the Supreme Court rethinks things. Those not-yet-implemented laws work to inform the Court, next time around, as to whether the method is indeed unusual—without the states having to mount the more dramatic and costly form of protest of actually trying to enforce an unconstitutional law."
Read the full post at verdict.justia.com.