This essay addresses the unresolved effects of preliminary injunctions issued by federal district courts in response to legislation that is possibly unconstitutional. More problematically, set against the backdrop of the "Partial Birth Abortion Ban Act of 2003," the essay asks whether an individual who violates the contested statute after receiving a preliminary injunction from a federal district court may be prosecuted if the statute is later upheld as constitutional. The essay analyzes competing arguments by Justice Stevens and Justice Marshall in Edgar v. MITE Corp., which involved a federal preliminary injunction against enforcement of a state statute. Siding with Justice Marshall's recognition of a court's power to immunize an individual from prosecution via a preliminary injunction, this essay searches for the source of this power. It posits that it may be found in the court's ability to approach the outer limits of its congressional authority in order to promote access of federal claimants to federal courts, or, alternatively, in the notice requirement under the Due Process clauses in the Fifth and Fourteenth Amendments. Finally, assuming that the courts do have the power to immunize an individual from prosecution, this essay considers whether this immunity extends to "compensatory liability."
Vikram David Amar,
How Much Protection Do Injunctions Against Enforcement of Allegedly Unconstitutional Statutes Provide?,
31 Fordham Urb. L.J. 657
Available at: http://ir.lawnet.fordham.edu/ulj/vol31/iss3/1