Legal Question for one of the MOD lawyers...

Let's eat this elephant one bite at a time, shall we?

Texasgrillchef said:

I have noticed through the course of time, that questions of constitutional law being decided in the courts tend to be after the fact. Being in suits saying an enacted law is unconstitutional, or that certain actions taken by police, prosecutors, politicians etc have violated in some form or another their constitutional rights.

For the most part I do understand what an Injunction is, and understand where in some cases it can or can not be used. One was the case where I believe his name Was Judge Benito put an injunction on California preventing them from enforcing the magazine capacity ban, it lasted a week. However, I will admit I don’t fully understand all details of an injunction in regards to what can or can’t or when it can or can’t.

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An injunction is just a court order for a party to a case to do something, or refrain from doing something. Courts would prefer to order someone not to do something, generally speaking. From the sounds of your post, you're specifically asking about a preliminary injunction, though. That's one requested (and possibly entered) at the beginning of a lawsuit. They're usually intended to preserve the status quo, as it existed immediately prior to an allegedly illegal or unconstitutional act. For example, if my legislature passed "The Hell Yes We're Going to Take Your AR-15" Act, and I want to challenge that, one of the things I'd request in my Complaint is a preliminary injunction barring the State from Enforcing the HYWGTYAR15 Act. If granted, that injunction would hold things in a kind of 'legal stasis' as it all existed right before the HYWGTYAR15 Act was passed.

In order to get a preliminary injunction, typically, the requesting party has to show: (1) a likelihood of success on the merits of the underlying case; (2) that the requesting party will suffer irreparable harm if the injunction is not granted; and (3) that the irreparable harm outweighs other interests involved.

Texasgrillchef said:

so this is my question.... why isn’t it possible to sue a governor and have the courts place an injunction on the Governor to stop him signing a bill into law, until the proposed bill is decided in the courts on its constitutionality? Or even an injunction on the state house or state senate from voting on the bill.

is there an actual legal reason or law that says that the law has to be passed before we can have the courts decide it’s constitutional status?

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There are a handful of reasons, but the primary reason is one called "ripeness." Unless and until the governor actually signs a bill into law, it's just a bill.

I'm Just a Bill:

As long as it's just a bill, it can't be enforced and nobody can really suffer any direct harm from it (wasting taxpayer dollars on garbage bills doesn't count for purposes of this discussion). Harm (aka injury or damage(s)) is one of the key elements of every legal case. If you have suffered no harm of any kind, you cannot bring a case.

And we require actual "cases or controversies," before a case can be brought. Not theoretical, speculative ones, but actual cases in which someone has suffered (at the very least) a real threat of harm. All of that is rooted in the language of Article III, Section II, of the US Constitution. Because we require actual cases and controversies, our courts do not offer advisory opinions, which is kind of what you're asking about here, if not exactly.

On top of that, there are questions of legislative immunity and the First Amendment protecting the legislators' right to promote bills of various types.

Texasgrillchef said:

one other follow up question... which might vary from state to to state. But as far as I know, ever state Governor has an oath to uphold the United States constitution as well as the states constitution. So if a Governor signs a bill that is later found to be unconstitutional, why can’t he/she be removed from office for breaking their oath of office? and is breaking the oath of office a criminal offense? Civil offense?

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Because it is not up to the Gov or the legislature to rule upon the constitutionality of a statute. That's the court's job. You'd have to look at your particular state to find the grounds for which a gov might be removed from office, but consider the possibility that a Gov might actually sign an unconstitutional bill in good faith believing it to be constitutional. Would that still be a valid basis for removal? Would you want to encourage his or her political opponents to challenge his enactments in court, in the hopes of finding one unconstitutional so that he could be removed from office?

herrwalther said:

...oaths to uphold the Constitution are lip service. There is no direct penalty for violating the Constitution.....

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That assumes that there can't be reasonable disagreement about what the Constitution means or how it applies. But the Founding Fathers indeed expected such disagreements and therefore assigned the authority to decide disagreements about what the Constitution means and how it applies to the federal courts (Article III, sections 1 and 2):
Many of the Founding Fathers were lawyers and understood what judicial power is. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.

See also:

• Hamilton in Federalist No. 78:

  ....If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, ....

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• And Madison in Federalist No. 39:
  

  ....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....

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And not the Constitution, nor any law, is self executing. Laws are tools used by courts to decide matters. The meaning and utility of laws comes from their use by courts for that purpose.

The reality is that our Constitution has served as a governing document of this republic for over 200 years. We've survived a panoply of travails, including civil war, economic ups and downs, an assortment of lousy elected officials, and some really lousy laws (like Prohibition) -- and yet we endure. From The Wall Street Journal, "The Culture That Sustains America’s Constitution", 2 July 2018:

Texasgrillchef said:

... Jury Nullification and intentional jury hanging.....

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Jury nullification has been around for a long time. It's a natural consequence of the Constitutional prohibition of double jeopardy. And while in an extreme case it may be an ultimate safety valve it actually has very limited utility as an expression of the "Will of the People."

1. Jury nullification is merely the expression of a jury's disinclination for some reason to convict a person who quite probably is guilty of the crime charged. It is the natural consequence of the prohibition of double jeopardy and works because the prosecution may not appeal a jury verdict of acquittal -- even when under the evidence and law the defendant was unquestionably guilty.
   
   
2. In general judges will not instruct about jury nullification, nor will judges generally permit counsel to bring it up. A prospective juror who brings it up will probably be excused by the prosecutor or the judge.
   
   
3. Jury nullification doesn't change the law. It's not precedent. The law exists and continues to exist and can be applied in other cases. Jury nullification has only let a guilty person off.
   
   
4. For jury nullification to work the jury must acquit. That means that all the jurors necessary for acquittal must agree even when they have accepted based on the evidence that the defendant is guilty, and they must so agree even though they had been instructed by the judge that they are to apply the law as explained by him to the facts as they, the jury, find. While a single juror can generally cause a hung jury, a hung jury merely results in a mistrial; and the defendant can be retried.
   
   
5. Jury nullification only has meaning in criminal cases. A plaintiff can appeal an adverse verdict in a civil case.
   
   
6. Jury nullification works only to the extent that the prohibition on double jeopardy applies. But often one can be tried both on a state criminal charge and a federal criminal charge without violation double jeopardy, even if each charge is based on the same facts.
   
   You might remember the Rodney King incident in the early 1990s. The four police officers who were involved in his beating were charged under state law with various "excessive force" crimes, tried in state court and acquitted (well, one drew a hung jury as to one charge). They were subsequently tried in federal court on federal charges involving the same incident and facts, and two of the officers were convicted and sent to federal prison.
   
   
7. In theory of course reasons for an acquittal against the weight of the evidence and law could be noble. But historically there have been instances of jury nullification having clearly ignoble application, such as when at times in our history a jury of White men in some States would resolutely refuse to convict a clearly guilty White defendant of the murder of a Black person.
   
   
8. Jury nullification of course is possible only when there's a jury, i. e., when a case is being tried to a jury. But precedent comes from appellate courts deciding matters of law.

Basura Blanca said:

The beleaguered (and silly) "Calexit" campaign, which was to put state secession/division on the ballot in the form of an initiative, was nixed by the California State Supreme Court citing potential harm among other things, before it could even be put to voters. So that's at least one example in recent history where the courts acted based on an assumption of a controversy.

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Basura Blanca said:

But it's an example of a lawsuit brought against a theoretical law.

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I’m on my phone, so my research capabilities are limited. I don’t think that either the controversy’s or the law was theoretical. Here’s what I found in one news article:

The court wrote that it took the step “because significant questions have been raised regarding the proposition’s validity and because we conclude that the potential harm in permitting the measure to remain on the ballot outweighs the potential harm in delaying the proposition to a future election.”

Last week, an environmental group sued to have the measure removed from the ballot. To substantially alter the state's governance under the California constitution, the group argued, a constitutional convention would need to be called -- and that requires a supermajority of both houses of the state's legislature.

A ballot initiative, the group said, was constitutionally insufficient.

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Source: https://www.foxnews.com/politics/ca...osal-to-split-state-in-3-from-november-ballot
If the article is true, and the statements I quoted above do seem pretty reasonable, then it was neither a ‘theoretical law’ (it was going to be on the ballot), nor the ‘assumption of a controversy’ (someone was actually claiming that the ballot violated the law). What was a potentiality (still theoretical) was the damage.

Spats McGee said:

....Source: https://www.foxnews.com/politics/ca...osal-to-split-state-in-3-from-november-ballot
If the article is true, and the statements I quoted above do seem pretty reasonable, then it was neither a ‘theoretical law’ (it was going to be on the ballot), nor the ‘assumption of a controversy’ (someone was actually claiming that the ballot violated the law). What was a potentiality (still theoretical) was the damage.

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I've found similar information, but I can't seem to find the case itself (and Christmas festivities have me pretty tied up).

It looks like the issue was decided based on California law regards the rules that apply to ballot initiatives. Essentially it appears that the ruling was based on a determination that under applicable California initiative law Calexit was not a proper issue to be decided by initiative.

Of course that's something of a guess since all we have to work with so far are news media reports, and those can be unreliable, especially regarding technical points of law.

Texasgrillchef said:

...Please correct me if I am wrong. but As I understand it any decision that they make in regards to a question posed to them on constitutionality is final. Meaning that the only way to override any decision they make on a laws constitutional status would be to change the constitution. Is that correct?.....

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It's more complicated than that.

First, sometimes the ruling isn't that a law is absolutely unconstitutional. The Court sometimes rules that a particular situation a law is unconstitutional as applied.

Or sometimes an unconstitutional law can be fixed by the amending the law

Sometimes folks could decide that the way a law is applied is a really bad idea or bad public policy, even though the law is perfectly constitutional. Being constitutional does not guarantee that a law is a good thing.

I often cite the case of Kelo v. City of New London, 545 U.S. 469 (2005) as an example of this phenomenon. It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result. "Checks and balances" at work.