What is the process for challenging a federal law as unconstitutional or otherwise invalid?

Asked over 1 year ago - Washington, DC

I'm referring to a petty offense in the federal code of regulations, and in this instance federal park rangers are abusing the law to overstep their bounds and make an unusually high number of arrests. Every attorney I have spoken with says something along the lines of "what they do isn't right, I don't agree with it, but it's the federal government. What can you do?"

What is the first step to challenging a federal law? Does the US Supreme Court have original jurisdiction over all federal criminal cases? Does the process begin at the local US District Court?

Attorney answers (5)

  1. James M Henderson Sr.

    Contributor Level 12

    4

    Lawyers agree

    Answered . It would be helpful to have greater detail.

    I have sued the National Park Service and the Secretary of the Interior on numerous occasions, typically over denial of permit applications, or restrictions contained in permits issued by the Park Service.

    The nature of the wrong your challenging will make a difference in how to challenge purported unconstitutionality.

    For example, if a regulation covers a topic clearly within the power of the Service (determined by evaluating the statutes creating and empowering the service) and if the regulation can be applied in many circumstances without violating the Constitution, the appropriate challenge is to the regulation as applied to your facts. On the other hand, if the ordinance can never be applied constitutionally (for example, the National Park Service once threatened to arrest any individual that appeared along the Inaugural Parade route with a sign critical of President Bill Clinton), then a challenge to the face of a regulation may be appropriate. Both these challenges are able to be brought in a civil action filed in the US District Court. As I mentioned above, I have done these actions, typically against the Service and against the Secretary of the Interior. They are brought under federal question jurisdiction in the federal court.

    Where an actual harm or injury (to the person or their interests) has been inflicted, those claims may also be brought in the US District Court under an implied cause of action called a "Bivens" action. These are, in essence, claims that would be brought under the federal civil rights statute, 42 USC 1983, except that 1983 only applies to action taken under color of state (NOT FEDERAL) laws. In the Bivens case, the Supreme Court acknowledged that an implied cause of action similar to 1983 lies in cases of civil rights violations by federal officers.

    Finally, if the unconstitutionality of a regulation appears in the context of your having been ticketed or arrested, that unconstitutionality of a regulation or statute can be pleaded as a defense in your criminal case.

    If this last circumstance is the case, you should contact counsel as soon as possible and discuss the matter with counsel. There are time restrictions in filing a motion to dismiss based on a constitutional defect in the criminal charge.

    This answer is not a substitute for consulting with and retaining the services of an attorney for your legal needs.... more
  2. L. Maxwell Taylor

    Contributor Level 20

    5

    Lawyers agree

    Answered . The first step in any legal action is evaluation by knowledgeable and competent counsel. Persons who skip this step and rush to court often find their lawsuits dismissed. Understand that the Constitution means what the Suoreme Court says it means, and that lower courts are obliged to obey the dictates of hierarchically superior courts when interpreting the Constitution. Federal statutory challenge is no sport for amateurs. Do not try this on your own unless you want a very unhappy experience which ends with your wasting your filing fee and getting your case thrown out. Better to invest in a few hours of lawyer consulting and research which results in a reasoned analysis of whether you have standing and a claim which might reasonably succeed.

    Not legal advice, just my two cents. Consult local counsel in person if you need legal advice. I practice in Vermont ONLY.

  3. Raymond George Wigell

    Pro

    Contributor Level 19

    4

    Lawyers agree

    Answered . Consult and retain an experienced federal criminal defense attorney ASAP.

    Of course, every answer is based on the question asked and requires a complete context. This answer should NOT be... more
  4. Joshua Sachs

    Contributor Level 19

    4

    Lawyers agree

    Answered . Yours is far too general a question to even attempt to answer. An immediate question that I would ask in turn, is why you think that the enforcement policy of the national park service brings the underlying regulation itself into constitutional question. Don't try to resolve this, or any other serious legal question, through on online Q&A forum, which is hopelessly inadequate for the purpose. Perhaps a serious consultation and case review by a civil rights attorney is in order.

  5. Stephen F Wallace

    Contributor Level 19

    3

    Lawyers agree

    Answered . Here Federal district court will have the original jurisdiction to hear a challenge to this law only if you were charged with it.; otherwise there is no standing. To overturn a law in the US Congress, one simply introduces a bill with the proper support and documentation. Good Luck!

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