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Are policies automatically void if the politicians who enacted them were serving unlawfully?

Law Asked on November 4, 2020

Suppose that country X has law Y. A politician introduces bill Z, which is then voted on by the legislature. The legislature approves the bill by a 51 to 50 vote, and it becomes law, replacing and repealing law Y.

Some time later, it comes to light that one of the legislators who voted for bill Z was never eligible for their position in the first place – for example, because it turns out they are not actually a citizen of country X. Legally, would law Z then become void and would law Y be considered the law of the land?

I’m curious whether there is a clear legal answer to how this scenario would be handled in various jurisdictions.

One Answer

In the United States, the answer depends on who is unlawfully in power.

In the hypothetical you presented, the answer is probably that the law would remain valid, as Congress generally has the sole authority to pass judgment on whether to admit the elected person. A third party would not have the ability to challenge the law based on the qualifications of a lawmaker.

But if we were dealing with an administrative official promulgating regulations, those rules would generally be void if that official were unlawfully appointed. That was the case in Nat'l Labor Relations Bd. v. Canning, 573 U.S. 513 (2014), where a cola distributor challenged a labor regulation, saying that the members of the NLRB who enacted it were improperly appointed. The Court agreed that the appointments were improper, so the regulations were nullified.

A judicial decision coming out under these circumstances would also be nullified if one of the judges weren't really a judge. That happened just last year, in Yovino v. Rizo. In that case, ten judges from the Ninth Circuit heard a case, and the vote split 6-4. But the author of the majority opinion died before the decision was published, which is when it become effective. The Supreme Court held that because there were therefore only five votes for that decision, it was not a majority opinion, and therefore not binding on future Ninth Circuit panels.

Answered by bdb484 on November 4, 2020

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