This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:
1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;
2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;
3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions;
4) a judgment controls the parties to the case, while the court’s opinion creates precedent to resolve future cases; and
5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding.
The synthesis of these five principles produces a constitutional system defined by the following features:
1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case;
2) the challenged law remains on the books; and
3) the challenged law may be enforced against non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.
Howard M. Wasserman, Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Adjudication, 23 Lewis & CLARK L. REV. 1077 (2020).