Wasserman, Howard, Zombie Laws (February 2, 2021). Florida International University Legal Studies Research Paper No. 21-02, Available at SSRN: https://ssrn.com/abstract=3778122
“Zombie laws” are the statutory remainder from constitutional litigation. Neither a judicial declaration of constitutional invalidity nor an injunction prohibiting enforcement removes or erases a challenged law from the books. The court stops the defendant executive official’s conduct in enforcing that law, but the law does not disappear or cease to exist as a statute. Such laws are “undead”—alive in remaining on the books, alive in being enforceable by a departmentlaist executive acting on independent constitutional judgment, but dead in that enforcement efforts are dead-on-arrival in court, where judicial precedent holding the law invalid binds and dictates the outcome in future litigation. This Article considers how Congress and state legislatures can control zombie laws, exploring four options. Congress could authorize universal injunctions prohibiting all future enforcement of the law against all rights-holders or procedural mechanisms to expand the practice scope of constitutional judgments; these options leave less room for future use of the zombie remainder. That may work on the margins. The real legislative power (federal or state) rests with control over substantive law and thus the control over the existence of zombie laws. A legislature could repeal zombie laws, eliminating future enforcement by leaving no law to enforce. Or a legislature could enable future enforcement and future constitutional litigation by leaving zombie laws untouched and even enacting new zombie laws, often “trigger laws” that exist but do not become enforceable until a triggering event, such as judicial overruling of precedent.”
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