The Volokh Conspiracy - City Threatening to Sue State for Negligent Failure to Legislate:

The Philadelphia Daily News reports:

What's held [the Philadelphia City Council's gun control agenda] in check is that only the commonwealth can legislate in the area of firearms, and unless the General Assembly will delegate power to the city, Council's actions would be dead on arrival....

[Now, Councilman Darrell Clarke says the Council] is preparing to file a legal complaint related to the Legislature's inaction....

Asked how Council can move forward on the bills without a state enabling law, Clarke said, "We think that with our complaint, we will show in our theory that the state has been negligent in terms of enacting good-sense legislation. We think we have a compelling case." ...

What a great theory! If you think the state has been negligent in terms of enacting good-sense legislation, why, just sue the state for negligent failure to legislate. Once it does that, and some other city or organization thinks the state has been negligent in terms of enacting bad-sense legislation, it can sue the state for negligent legislation.

Then the courts can just decide what makes the best sense, and that'll be that. No need for them to limit themselves to any areas specially removed from the political process by a constitutional provision (say, the right to free speech, the right to bear arms, city home rule as assured by some express state constitutional provision, and the like). Just apply a general "did the legislature fail to enact good sense legislation? / did it enact bad legislation?" test, potentially covering any question under the sun. Cool.

Thanks to Guy Smith for the pointer.

	[Eugene Volokh, May 3, 2007 at 11:13pm] Trackbacks City Threatening to Sue State for Negligent Failure to Legislate: The Philadelphia Daily News reports: What's held [the Philadelphia City Council's gun control agenda] in check is that only the commonwealth can legislate in the area of firearms, and unless the General Assembly will delegate power to the city, Council's actions would be dead on arrival.... [Now, Councilman Darrell Clarke says the Council] is preparing to file a legal complaint related to the Legislature's inaction.... Asked how Council can move forward on the bills without a state enabling law, Clarke said, "We think that with our complaint, we will show in our theory that the state has been negligent in terms of enacting good-sense legislation. We think we have a compelling case." ... What a great theory! If you think the state has been negligent in terms of enacting good-sense legislation, why, just sue the state for negligent failure to legislate. Once it does that, and some other city or organization thinks the state has been negligent in terms of enacting bad-sense legislation, it can sue the state for negligent legislation. Then the courts can just decide what makes the best sense, and that'll be that. No need for them to limit themselves to any areas specially removed from the political process by a constitutional provision (say, the right to free speech, the right to bear arms, city home rule as assured by some express state constitutional provision, and the like). Just apply a general "did the legislature fail to enact good sense legislation? / did it enact bad legislation?" test, potentially covering any question under the sun. Cool. Thanks to Guy Smith for the pointer.