us-constitution
Is it possible for unconstitional laws to remain due to lack of standing to contest it?
<p>Is it in theory possible for an unconstitutional law to remain in act because no case with proper standing can or could be brought forth to challenge it?</p>

<blockquote>
<p>Is it in theory possible for an unconstitutional law to remain in act
because no case with proper standing can or could be brought forth to
challenge it?</p>
</blockquote>
<p>Yes.</p>
<p>It isn't even necessarily all that uncommon of a situation. If the authorities that enforce a statute affirm that they are not enforcing it, this is often enough to defeat a case on standing grounds.</p>
<p>For example, rather than establishing a landmark precedent decriminalizing polygamy (or declining to do so), the 10th Circuit held in <em><a href="https://law.justia.com/cases/federal/appellate-courts/ca10/14-4117/14-4117-2016-04-11.html" rel="nofollow noreferrer">Brown v. Buhman</a></em>, Case No. 14-4117 (10th Cir. April 11, 2016), that the case must be dismissed without prejudice as moot, because the Utah District Attorney's office who was sued in the case adopted a policy in May of 2012 that it would only prosecute polygamy cases when they were incident to frauds committed on a prospective spouse or third parties, effectively freeing the Sister Wives family from risk of prosecution.</p>
<p>The end result creates no precedent on the underlying issue of the decriminalization of polygamy (which also would have invalidated a virtually identical Colorado statute), and shifted the official prosecution policy of just one DA's office in Utah that can be changed prospectively at any time. The key language of the ruling was as follows:</p>
<blockquote>
<p>The Utah County Attorney’s Office (“UCAO”) subsequently closed its
file on the Browns and adopted a policy (“the UCAO Policy”) under
which the Utah County Attorney will bring bigamy prosecutions only
against those who (1) induce a partner to marry through
misrepresentation or (2) are suspected of committing a collateral
crime such as fraud or abuse. The Browns fall into neither category.
Nonetheless, the district court denied the Utah County Attorney’s
motion to dismiss the case as moot and instead granted summary
judgment to the Browns.</p>
</blockquote>
<p>Similarly, while the 7th Circuit Court of Appeals finally reached the issue in 2019 (upholding its constitutionality), many earlier constitutional challenges to the exclusion from income for federal income tax purposes for a minister's housing allowance under 26 U.S.C. § 107 on First Amendment establishment clause grounds, were dismissed for lack of standing.</p>
