Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now.
Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold injunctive relief, but that rationale does not justify the practice of executive officials and legislatures phasing out rather than immediately ceasing their own violations without judicial intervention. The authority for that practice inheres in the merely prima facie nature of the obligations law imposes. Where immediate compliance would risk disaster, government actors, no less than individuals, act justifiably (even if technically illegally) by decelerating gradually rather than slamming on the brakes.
Building on principles some of which are implicit in extant case law, this Article proposes three limits. First, wind-down authority exists only where immediate compliance would lead to extreme harms that clearly and overwhelmingly outweigh the harms of non-compliance; mere inconvenience or expense does not suffice. Second, the duration of any compliance delay should be specified in advance and minimized. Third, failure to wind down a violation in the prescribed time should be excused only following good-faith efforts; even then, in general at most one extension should be allowed before courts impose sanctions for non-compliance. These limits will deter the kind of recalcitrance associated with massive resistance to desegregation that the Supreme Court invited with the “all deliberate speed” formulation of Brown v. Bd. of Educ. II, 349 U.S. 294, 301 (1955).
The legitimacy of wind-down authority also implies power to initiate a constitutional violation in extraordinary circumstances. Thus, for example, should Congress fail to raise the debt ceiling before government obligations outstrip revenue, the President need not exhaust technically legal but disastrous options (such as selling national parks to real estate developers at fire sale prices) before taking unconstitutional measures (such as borrowing in excess of the debt ceiling) to mitigate the harm.
Boston University L. Rev. (Forthcoming)