Can a state delegate the creation of a law to an unelected agent such as the Supreme Court?

Question

This is with regard to the constitutionality of "trigger laws" such as those that went into effect, automatically, after the overturn of Roe vs. Wade.

I am neither a lawyer nor a politician, but it is my understanding that in the United States, state laws are produced by elected state congresses in the ideal of having such laws represent the people. Such laws must be consistent with other legislation and enforceable. The ill-defined "trigger law" is purely theoretical, in that it is known to be unenforceable, but could become enforceable if key changes occur such as a reversal of a ruling by the Supreme Court.

To me, this sounds a little absurd, as it effectively means that an untestable hopper-bill can be submitted, voted on, and even passed with the full recogition that it is outside of the ability of the state to enforce. It is passed for an unknown point in the future during which many congressmen may no longer serve; and cannot, with certainty, represent the will of the people. It is treated purely as a theoretical element. It is, given such an event as the overturn, in effect, immediately and without state review, due to the actions of someone neither elected democratically nor even likely a resident of said state.

This just feels wrong. Unfortunately I'm uncertain whether this qualifies as a matter for the federal constitution or state constitutions. SCOTUS was never meant to be a legislative body. But is it constitutional?

Answer 1

It happens all the time. Most laws designate an executive official (usually a cabinet member, but a department head under the cabinet official can also occur) who will set relevant language to enforce the goals of the law. This can lead to unelected officials (but rarely un-appointed, so there is a democratic recourse - vote out the elected official(s) that appointed them) to determine the policy of enforcement of a law.

The cure to this is to elect politicians who will repeal the law that enables another branch of government to determine how the law was intended to be enforced.

Answer 2

state laws are produced by elected state congresses in the ideal of having such laws represent the people

Yes, but isn't that precisely what the trigger laws went through? Being created upon by the appointed, state-level, representatives of the state's electorate? The people of Kentucky voted for representatives and governors who wanted to make abortion illegal, opinion polls show 57% support for "Illegal in most/all cases" limits on abortions.

1. Kentucky

Enacted: 2019 Mechanism: Goes into effect immediately without further action being required Penalty: Anyone who provides or attempts to provide an abortion service will be charged with a 4 Class D felony Exceptions: Pregnant person’s life is in danger or provider performs medical treatment that accidentally terminates a pregnancy
Other abortion bans: Six-week ban (not currently in effect)

The only "problem", depending on your pro-choice/life viewpoint, was that SCOTUS had a ruling forbidding states to enforce such a law, at the state level, for constitutional reasons.

That seems like a popular mandate, arrived at by proper procedure, the only missing ingredient is that this law, at this time, could not be applied so what is your concern? Once the trigger condition was met, this law came into effect. Not another law.

Furthermore, said trigger law is currently blocked, pending appeal, so there is more scope for review.

Kentucky’s trigger law banning nearly all abortions took immediate effect when the U.S. Supreme Court overturned Roe v. Wade on June 24. The state’s two abortion providers, Planned Parenthood and EMW Women’s Surgical Center, sued the state the following Monday, arguing that a right to privacy and bodily autonomy was protected by the Kentucky Constitution. Their request for a temporary restraining order blocking the trigger law from taking effect was granted by Jefferson Circuit Court Judge Mitch Perry last week. That ordered allowed abortions to continue, at least temporarily. The Supreme Court’s refusal to grant Cameron’s request allows that order to stay in place.

p.s. I am pro-choice myself so I believe that the state enforcing a pregnancy being carried out to term, at least in the first 16 weeks or so, is a gross violation of a woman's rights. But that opinion doesn't change my lack of concern regarding the trigger procedure itself.

Answer 3

Trigger laws don't make courts legislative in any way. No authority to craft legislation is delegated to the courts. There are lots of cases where one court decision makes a law unenforceable and another one later makes it enforceable again. This happens all the time when courts are reviewing a case, usually with a lower court striking it down, but a higher court reversing that decision. Or, in some cases, even a court enjoining it during trial and then the same court ultimately finding that the law is not illegal and allowing it to go into effect.

The only difference with 'trigger laws' from any other law is just that they include provisions acknowledging that attempts to enforce the law will not be made immediately following its passage until such time as such attempts are not be restrained by a court order. Any law ceases to be effective when struck down by a court and becomes effective again when such decision is reversed unless the law was explicitly repealed or replaced between the cases in question. As such, it's not just 'trigger laws' potentially going into effect now, but also pre-Roe abortion laws that were not repealed or replaced after Roe. All of these laws were crafted and passed via normal legislative means, not created in any way by courts.

So, no, a legislature cannot delegate actual lawmaking authority to another agent, but that's not what trigger laws do. Legislatures can, however, delegate rulemaking authority to executive and, in some cases, even judicial authorities in order to craft specific rules to implement a law passed by Congress or a state legislature. This actually happens all the time and is how we have the Code of Federal Regulations that is currently around 200 books in length (no, that is not an exaggeration; it's actually around 200 volumes.) This happens much more frequently with the executive branch, given that implementing and executing the laws is the primary purpose of the executive branch, but it also sometimes happens with the judicial branch. For example, the United States Supreme Court actually has its own police force and the Rules Enabling Act authorizes it to make rules for the federal court system, including, among other things, the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. However, while this process is common, it is entirely unrelated to trigger laws, which are just normal laws created by normal legislation which just so happened to be unenforceable at the time they were passed as the result of a court decision.

Answer 4

(I'm dyslexic, so forgive me if this is hard to understand.)

The answer is "yes and no". But the problem is, they don't use the yes and no system of law. They use their own loophole law, which is "yes and no", but nobody knows if it's yes or no. Is it legal or is it illegal?

It's one of their tricks. You can do anything if it is not illegal, but that doesn't mean it's legal to do. It means its not illegal and it's not legal, so it's a loophole that doesn't have a yes or no. So its not a crime, even if you know it's wrong, because there has never been a legal ruling on it.

The government uses it all the time. A government minister gives a contract to a organisation not because they're the best, or the cheapest, or the best all-round deal - the company that gets it is the one who gives the minister the most money to get it. It's not legal to do, but it's not illegal to do, and that's how they have always done it. I remember an MP saying "it's not right but it's not illegal and that's how we have always awarded contracts".

The courts use de facto and bylaws. De facto means it's not a legal law but nobody knows and they think it is, so they use it as if it is a legal law when it's not. And because we trust the courts to follow the law, we don't think they would do this, but it's now normal and no one has noticed.

And "bylaw" is a law that's not been made a legal law. but is being used as a law without authority legally, until it is passed or rejected. It's a loophole where a law needs to be made and used straight away at the time it was needed, and all agree it's needed, and it cannot wait until it has been passed as it is needed now, and it can get passed later or rejected. It's an emergency law for special reasons and events.

It is being used by the Canadian government as a law and not for emergency reasons, but because it's a loophole, as the bylaws Canada are using would never become a legal law, so they would never be able to forcefully remove people from their land as it would always be illegal. So they use bylaws, which is not a legal law, to get round the law to do what would be illegal to do if it wasn't for the bylaw which is not legal and going through the system to make it legal or not.

And while they're waiting to be told it's not legal, they remove you from your land, bulldoze it flat, and put you in temporary housing while the courts decide whether it was illegal to do it. And when, after a long time, they decide that it was clearly illegal and it was a crime that the government committed, and "heads will roll" and "it's a disgrace". it's too late, because the land that they would've never been able to mine and develop is now a car park, so the owners cannot get it back but get a compensation payment for it instead.

I've seen the land tax payment they give the people whose land they stole - which is worth billions and would never be sold as it belonged to the tribe - and it's a couple of thousand dollars each, and a house to rent from the agency.