Unconstitutional-but-Unchallenged Federal Laws

Narration by NotebookLM

Welcome to today's episode, where we delve into the fascinating and sometimes perplexing realm of federal laws that linger on the books despite serious constitutional doubts. Legal scholars and even judges have raised concerns about the constitutionality of these statutes. However, due to rare circumstances, hypothetical scenarios, or issues with legal standing and justiciability, these potentially unconstitutional laws have largely evaded judicial review and remain in effect. Join us as we explore some prominent examples, uncover the constitutional controversies surrounding them, and examine why they continue to exist without a definitive ruling from the courts. We'll touch on issues ranging from presidential succession and the separation of powers to the complexities of the War Powers Resolution, the limits of free speech under the Logan Act, and even the constitutionality of the federal debt ceiling. Get ready to discover the intriguing world of unconstitutional-but-unchallenged federal laws.

As we established, there are several federal statutes that continue to exist despite serious questions about their constitutionality. Legal scholars and even judges have argued that these laws likely violate the U.S. Constitution, yet they remain in effect because the necessary circumstances for a legal challenge are rare, hypothetical, or complicated by issues of standing and justiciability.

Here are some of these potentially unconstitutional laws, with more detail from the source:

Presidential Succession Act of 1947:

◦ Law & Controversy: This Act dictates that the Speaker of the House and the President pro tempore of the Senate are next in line for the presidency after the Vice President.

◦ Why Potentially Unconstitutional: Critics argue that this violates Article II’s Succession Clause, which grants Congress the power to declare “what Officer shall then act as President”. Many scholars, including Akhil and Vikram Amar, contend that the term “Officer” was intended to mean an “Officer of the United States,” specifically an executive or judicial officer, not a member of Congress. This raises separation-of-powers concerns and could potentially violate the Incompatibility Clause. The Amars warn that invoking this Act in a dual vacancy scenario could lead to national chaos.

◦ Barrier to Challenge: A significant barrier is that no such dual vacancy of the President and Vice President has ever occurred. Without this specific circumstance, courts lack a plaintiff with the necessary standing to bring a legal challenge. While such an event would likely trigger a constitutional crisis, no court has yet ruled on the Act's constitutionality.

War Powers Resolution of 1973:

◦ Law & Controversy: This law mandates that the President must notify Congress within 48 hours of deploying military forces and requires their withdrawal after 60 days without specific congressional authorization. It also allows Congress to order the withdrawal of troops through a concurrent resolution.

◦ Why Potentially Unconstitutional: Every President since its enactment has questioned its constitutionality. A key aspect, the use of concurrent resolutions to order troop withdrawal, was undermined by the Supreme Court's decision in INS v. Chadha, which deemed such legislative veto mechanisms unconstitutional.

◦ Barrier to Challenge: Courts frequently dismiss challenges to the War Powers Resolution as political questions. Without a concrete legal injury or a direct defiance by the President of a concurrent resolution, the issue remains unresolved in the courts. Notably, Presidents from Nixon to George W. Bush have criticized the law, yet it persists due to congressional inaction and judicial restraint.

The Logan Act (1799):

◦ Law & Controversy: This Act criminalizes unauthorized U.S. citizens from engaging in negotiations with foreign governments. It is a very broad law and has not resulted in any convictions since the 19th century.

◦ Why Potentially Unconstitutional: The Logan Act likely violates the First Amendment by potentially punishing political speech and may also encroach upon the executive branch's authority in foreign affairs.

◦ Barrier to Challenge: The absence of modern prosecutions means that no individual has had the standing to challenge the law in court. Legal experts generally believe that the Act would be struck down if it were to be enforced. Despite being often invoked politically, it is largely considered symbolic and unenforceable.

The Federal Debt Ceiling:

◦ Law & Controversy: This law limits the total amount of money the U.S. Treasury can borrow to meet its existing legal obligations.

◦ Why Potentially Unconstitutional: Some scholars argue that the debt ceiling could violate the Fourteenth Amendment, which states that the validity of the public debt "shall not be questioned". In a situation where the debt ceiling is reached, the President might be forced to choose between violating the debt ceiling or defaulting on the nation's debt. Some argue that the debt ceiling itself is unconstitutional under these potential default scenarios. Figures like Professor Laurence Tribe and former President Bill Clinton have raised concerns about its constitutionality in such crises.

◦ Barrier to Challenge: No actual default on the U.S. debt has occurred, and courts have dismissed legal challenges as speculative, making it difficult to establish standing.

The Smith Act (1940):

◦ Law & Controversy: This Act criminalizes advocating the violent overthrow of the government. It was notably used against communists during the mid-20th century.

◦ Why Potentially Unconstitutional: Current legal doctrine, particularly stemming from Brandenburg v. Ohio, protects even inflammatory speech unless it incites imminent lawless action. By modern standards, the Smith Act's provisions are considered overly broad.

◦ Barrier to Challenge: Following landmark Supreme Court rulings in Yates and Brandenburg, the Smith Act is no longer actively enforced. Any contemporary attempt to prosecute someone under this Act would almost certainly fail constitutional scrutiny. Legal scholars largely consider it effectively a dead law, despite its continued presence in U.S. law.

FISA Surveillance (Section 702 of FISA Amendments Act):

◦ Law & Controversy: This provision authorizes warrantless surveillance targeting non-U.S. persons located abroad but incidentally collects communications of Americans. Critics argue this violates Fourth Amendment protections against unreasonable searches and seizures.

◦ Why Potentially Unconstitutional: It enables mass data collection without traditional warrants or probable cause. Concerns also exist regarding "backdoor searches" of data belonging to U.S. persons without proper judicial oversight, which are viewed by some as a constitutional overreach.

◦ Barrier to Challenge: The classified nature of the surveillance makes it exceptionally difficult for individuals to know if they have been targeted, thereby hindering their ability to establish the necessary standing to sue. The Supreme Court's decision in Clapper v. Amnesty International set a high bar for establishing such standing.

Male-Only Selective Service Registration Law:

◦ Law & Controversy: Current law requires only men to register for the military draft, a policy initially upheld in 1981 when women were legally excluded from combat roles.

◦ Why Potentially Unconstitutional: Since 2015, women are now eligible to serve in all combat roles. This significant change has led courts and even Supreme Court justices, like Justice Sotomayor, to acknowledge that the original rationale behind the male-only registration has been undermined.

◦ Barrier to Challenge: Courts have generally deferred to Congress to address this issue. The absence of recent prosecutions and ongoing legislative review have also postponed a definitive legal challenge.

Ineligibility Clause and the “Saxbe Fix”:

◦ Law & Controversy: The Ineligibility Clause prevents members of Congress from being appointed to any civil office under the authority of the United States if the salary for that office was increased during their term in Congress. Congress has frequently employed the "Saxbe fix," which involves lowering the salary of the relevant office back to its previous level before appointing a former member of Congress.

◦ Why Potentially Unconstitutional: Many legal scholars argue that this "fix" does not negate the fact that a salary increase occurred during the former member's term, and therefore, the appointment still technically violates the plain text of the Constitution.

◦ Barrier to Challenge: Courts have consistently found that plaintiffs lack the necessary standing to challenge these types of appointments. Consequently, these appointments often proceed without judicial contest. Scholars and commentators frequently question the legality of such appointments, but they continue due to political consensus.

In conclusion, these examples illustrate how various federal laws, despite facing significant constitutional doubts raised by legal experts and sometimes even judges, remain on the books. The reasons for their continued existence often lie in the procedural hurdles of bringing a legal challenge, such as the need for a specific set of facts to occur (as with the Presidential Succession Act), the classification of the issue as a political question (as with the War Powers Resolution), the lack of enforcement leading to no injured party with standing (as with the Logan Act and the Smith Act), or the difficulty in demonstrating direct and concrete injury required for standing (as with FISA surveillance and the "Saxbe fix"). This creates a situation where potentially unconstitutional laws persist, shaping the legal and political landscape without ever being definitively reviewed by the judiciary.