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Tyler Lindley: The Writ-of-Erasure Fallacy, Remedial Limits, and the Balance of Powers
Michael Ramsey

Tyler B. Lindley (J.D. Chicago '21; research fellow, Brigham Young University - J. Reuben Clark Law School) has posted The Writ-of-Erasure Fallacy, Remedial Limits, and the Balance of Powers (51 pages) on SSRN.  Here is the abstract:

Judges commit the writ-of-erasure fallacy when they purport to “strike down,” or “nullify,” a law repugnant to the Constitution, and treat it as vetoed, repealed, or erased. Instead, the approach more consistent with the judicial role set forth in the Constitution is to refuse to enforce the pertinent law and perhaps to enjoin the executive from certain enforcement activities. While the first-order consequences of accepting this “remedial limit” are straightforward—mostly linguistic, or in the rare case in which the Court overturns a precedent that held a statute unconstitutional—the second-order effects (how it alters current judicial doctrine) are more nuanced. For example, if courts cannot actively strike down laws, or parts of laws, then current justiciability, remedies, and severability doctrines might need to be reexamined.

Justices Clarence Thomas and Neil Gorsuch have explicitly accepted this remedial limit, as have many federal judges. If federal courts are bound by the remedial limit, then studying its implications is necessary to ensure its consistent application. This Article explains how the remedial limit restricts Article III standing through redressability and how its misapplication can cause courts to err by issuing advisory opinions—or at the very least addressing constitutional questions unnecessarily. First, the remedial limit means that courts cannot hear claims that allege harm stemming from the mere existence of an unconstitutional statute. Second, when courts entertain challenges to the unconstitutionality of statutes that purport to restrict the President’s authority to remove executive officers, they should first determine whether the challenger would be entitled to relief if the removal restriction is unconstitutional before deciding that constitutional question.

I then examine the systematic effects that would result from honoring the remedial limit, including legislative and executive reaction, status quo bias, and the increased role of state governments. Limiting constitutional decisions, particularly the kind of decisions the remedial limit would prevent, will push disputes from federal courts to the legislative and executive branches, as well as to state governments. It will privilege the status quo, which will heighten the importance of legislative and executive judgment. And it will decrease the importance of the federal judiciary, giving more responsibility to the elected representatives to interpret and follow the Constitution.