https://soundcloud.com/capimpactca/is-there-liability-for-enacting-unconstitutional-laws

On occasion, I’ve been asked whether there’s any recourse if the Legislature and Governor enact a law that somehow violated the state and/or federal constitutions. Obviously, the first action would be to challenge the enacted bill in either a state or federal court, depending on the basis for that constitutional challenge. Another avenue is the referendum process in California. However, to determine whether an enacted law is constitutional or not, there’s really only one avenue, the state or the federal courts.

Assume the proper court determines that a law conflicts with the Constitution and declares the law invalid, either in part or in whole. Is there any recourse, or a second action against either or both branches of government? Can the Legislature and/or the Governor be held, if you will, accountable for having enacted an unconstitutional state law? Would it matter whether they were informed, say by the Legislative Counsel or opponents of the bill, that the proposed law might be unconstitutional?

I think the short answer is no. It’s not the role of the legislative or executive branches of government to determine whether or not a proposed statute is constitutional or not. Rather, that role is reserved to our third branch of government, the judicial branch.

Note that under federal law, there is a civil private action for damages that may be brought against a public officer who acts under an unconstitutional statute. There are so-called Section 1983 Actions. And Section 1983 was enacted after the Civil War to hold a state official accountable for violating a federal law. But these laws generally apply to executive branch officials who are acting pursuant to a law. They don’t apply to those elected officials who enact a law that’s later declared invalid.

While sometimes in the legislative process elected officials push the proverbial envelope on public policy issues, it certainly doesn’t mean that our elected officials should or can be held liable for enacting unconstitutional state statutes.

Our elected officials and their actions are ultimately answerable to the state’s electorate come election time. If the citizens believe that unconstitutional laws are being enacted, then they can seek to recall the elected officials, or they can simply vote them out of office at the next ballot.

You can find the full transcript of today’s audio here.