The rise of zombie laws? Maybe!

Congress passes laws that become obsolete or unworkable over time. Those laws are then basically ignored by law enforcement, presidents and congress. Congress rarely repeals obsolete, unused laws so they are like zombies that can come back to life. 

Currently, MAGA elites are pushing for reliance on a zombie law as a way to bypass Congress and impose a national abortion ban. Vanity Fair writes about two zombies that MAGA is thinking about resurrecting to bypass congress:

This time around, to avoid pesky checks and balances, Trump and his allies have revisited US history and found some truly heinous old laws to advance their right-wing agenda. These “zombie laws,” as they’re called, are provisions that haven’t been enforced or invoked for decades but are somehow still on the books.

Arguably the worst among them is the Comstock Act of 1873, a product of the Victorian-era moral panic named after anti-vice activist Anthony Comstock. It was designed to restrict the distribution of “obscenities” at the time, like pornography, contraceptives, and even some medical textbooks. The Comstock Act was never repealed. And earlier this year, during oral arguments for FDA v. Alliance for Hippocratic Medicine—which centered on the agency’s approval of mifepristone, an abortion medication often ordered by mail—justices Clarence Thomas and Samuel Alito mused on the idea of bringing the law back to life. “Shouldn’t the FDA have at least considered the application of 18 USC 1461?” Alito asked, alluding to the law’s prohibition on “mailing obscene or crime-inciting matter.” He continued: “This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law.”

Of course, the Comstock Act is some “obscure law,” whose enforcement, The American Prospect notes, essentially stopped in the 1930s, after federal courts clarified that it could only be applied when someone was mailing an item or drug specifically intended to be used illegally for an abortion.

“On the books” is doing a lot of heavy lifting for a law that hasn’t been enforced in decades. But more to the point is the fact that the Comstock Act might allow Trump to circumvent congressional approval.

Aside from the Comstock Act, the other zombie law in contention is the Alien and Sedition Acts of 1798. The acts, passed by a Congress in the control of Alexander Hamilton’s Federalist Party, tightened restrictions on anti-government speech and gave the government power over immigrants deemed threats to the country.

Republicans are angling to use it again, to create a legal framework for the mass internment and deportation of immigrants—perhaps the biggest promise of Trump’s campaign. The president-elect has repeatedly said that the residence of some 11 million undocumented immigrants in America constitutes a foreign “invasion”—incidentally a precondition for the law’s enforcement. The problem, though, is that Republicans need to prove that America is genuinely at war—which it isn’t, rendering their theory completely faulty.

So, to round 'em up, box 'em up, and mail 'em back home, MAGA has to just call illegal immigration a war. That seems like a straightforward authoritarian plan, faulty or not.

The Alien and Sedition Acts made it a crime to “print, utter, or publish... any false, scandalous, and malicious writing” against the government, Congress, or the President. Although that seems to be an unconstitutional violation of free speech, DJT and MAGA elites have been very clear that they want to shup critics up and punish them. They are filing defamation lawsuits right now to start spreading fear in the MSM. All that MAGA has to do is to convince its MAGA US supreme court that we are in a cold war with dangerous, drug dealing, illegal immigrants and therefore criticism of the US government in this perilous time is punishable by fines and jail time.

That seems like a straightforward authoritarian plan, unconstitutional or not. How likely is this plan to pass MAGA muster in the USSC? That is unclear but probably low, maybe ~10% chance of “success.” How likely is this plan to be tested by a MAGA lawsuit or two? Probably high, maybe ~90% chance.

According to Perplexity, there's a lot of room for mischief in zombie laws that are still “on the books.”