Laws That Are Impossible to Follow Can Still Be Constitutional, Says California Court :: 06/29/2018

Just because a law is impossible to follow is not enough of a reason for a court to throw it out. So California's Supreme Court ruled on Thursday.

On the face the ruling sounds utterly absurd, but there's a deeper explanation that makes it a little less silly and much more deeply concerning about the deference granted to lawmakers.

Some context: California passed a law a decade ago that demanded gun manufacturers implement microstamping technology that would imprint identifying information on bullets as they were shot from semi-automatic weapons. Gun manufacturers say the technology hasn't advanced enough to comply with the law. Smith & Wesson announced in 2014 that they would be pulling some guns from the market in California rather than complying with the law (a cynic might theorize that this is the law's actual intent).

The National Shooting Sports Foundation sued to block the law. California's Civil Code contains a section that simply reads, "The law never requires impossibilities." So the question the state's Supreme Court was addressing was whether the courts can invalidate this law because it is impossible for people to comply with it.

Not only did the California Supreme Court rule that it cannot invalidate the law, but it ruled so unanimously. To be clear: The court does not suggest that people can face punishment for being unable to comply with impossible laws. Instead, the court says, "impossibility can occasionally excuse noncompliance with a statute, but in such circumstances, the excusal constitutes an interpretation of the statute in accordance with the Legislature's intent, not an invalidation of the law." Essentially, it's not unconstitutional to pass impossible laws, but the courts can exempt people from the consequences of those laws without overturning the laws themselves.

Strip away the absurdity, and it's essentially a very technical ruling. The court acknowledges its role in making sure that people are not punished for being unable to comply with a law because it's impossible—that would be an unconstitutional violation of a person's rights. It just can't use that basis for invalidating the law itself.

This is all of interest because California lawmakers regularly pass terrible laws that interfere with markets and individuals' choices for the expressed purpose of controlling how the state develops. Often the laws are impractical in the current environment and are designed to push technological development in certain directions that appeal to certain political (and politically connected) constituencies.

The most obvious example is California setting extremely high renewable energy goals by law in order to control how the market develops. It may be currently impossible for the state to get all its energy from renewable sources, but because these laws exist, it necessarily means that the state's public and private development is going to be deliberately focused in such a way that compliance eventually becomes possible, and then mandatory.

Indeed, Attorney General Xavier Becerra made it clear in his statement praising the ruling that this is entirely the point. Lawmakers pass laws that have currently "impossible" technological standards for the purpose of controlling what the private sector develops and how the private sector is regulated.

"Today's ruling confirms that California can create incentives for the gun industry to make products that serve the public's needs," Becerra said in a prepared response. "Innovation and technology will continue to drive California to be a leader. We will not go backwards. The California Department of Justice is committed to reducing gun violence and improving the ability of law enforcement to fight crime and hold accountable those who commit firearm murders and assaults."

California is far from alone in the attitude that technological development should be directed to serve political constituencies. The result is that various interests lobby the government to control how these goals are set so that they are likely able to meet them and cash in—and perhaps their competitors are not.

There are costs borne by the public due to these impossible laws. For example, California passed a law in 2006 calling for the state to reduce greenhouse gas emissions significantly by 2020. No, this isn't an "impossible" law on its face, but the result was a whole host of regulatory and policy changes implemented to make what was impossible in 2006 much more possible in the future. That goal was one of the ways the terrible high-speed rail boondoggle was sold to Californians. The state claimed it would reduce greenhouse gases. Those claims are very dubious, but Californians are still, at the moment, stuck with an expensive, unneeded train proposal that will cost more than $100 billion and won't be finished for decades. The state's citizens are getting bilked due to the costs of meeting this arbitrary goal.

And what if some companies are able to innovate to reach these "impossible" goals and others are not? That's what we're seeing in the European Union as it implements a vast, confusing data-privacy law that may well end up being impossible for some businesses to comply with. Big names like Google and Facebook—with all their money and lawyers—are able to comply. Smaller businesses are not, or at least it is much more difficult for them to do so. When the government sets impossible goals in order to force businesses to make the government's future agenda possible, some firms are going to be left behind. It's another way for the government to choose winners and losers.

Laws that are "impossible" to comply with do, in subtle ways, threaten the livelihoods of citizens as they struggle to adjust to these demands. They do challenge our freedom as citizens by attempting to force markets and innovators to dance to the government's tune—or the tune of the people with powerful government connections. There's a saying: "Nothing's impossible for the person who doesn't have to do it." Some of those people have the power to enshrine the impossible as law and leave the rest of us figuring out how to adapt.

http://reason.com/blog/2018/06/29/californias-top-court-impossible-laws-no