This article will argue that holdings of unconstitutionality in futuro are difficult to reconcile with the separation of powers doctrine because they foster impermissible intrusions on the ability of the legislative and executive branches to act independently of the judiciary. It is further argued that in the two cases where courts have adopted the unconstitutionality in futuro approach, the failure to satisfy all of the proposed standards for the appropriateness of unconstitutionality in futuro and the further considerations of judicial legitimacy and competency should have led the courts to consider other less drastic alternatives before deciding to use unconstitutionality in futuro.
Philip H. Hecht,
Reflections on Unconstitutionality In Futuro: Shavers v. Attorney General and Robinson V. Cahill,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol12/iss2/4