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This question originated from the Australian encryption debate, but I am mainly asking about the US. Just to keep things simple (if a bit absurd), suppose the US passed a law that says,

Every citizen is required to provide the government with a valid solution to the equation 0x = 50, and will otherwise be jailed.

I’d like to think this would simply never happen, but the reality is that the US government has already done various other things that I would have hoped would be in the “never ever” category.

Although it probably wouldn’t be as blatant as the above example, it seems to me that it is possible the US could pass a law that is literally impossible to comply with. What would happen if it did?

11 Answers 11

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it seems to me that it is possible the US could pass a law that is literally impossible to comply with. What would happen if it did?

The court would need to ascertain (1) the legislative intent, (2) whether it or the statutory language is unconstitutional, and/or (3) whether it is enforceable.

Apropos of unenforceable laws, see In re Initiative Petition No. 364, 930 P.2d 186, 201 (1996)

Unenforceable law is the very antonym of an initiative-authorized legal product. Proposing for adoption (through the initiative process) a measure that is facially incapable of application as a state law is as much an oxymoron as "gentle cruelty" or "deft clumsiness."

(italics in original)

A scenario of the sort of "solving" the absurd equation 0x=50 ought to be held unconstitutional insofar as it would be "nothing more than a state-compelled false statement" (see Entertainment Software Ass'n v. Hatch, 443 F.Supp.2d 1065 (2006), which was affirmed) with obvious infringements of people's First Amendment rights. The only possibility of survival of that requirement would be if it were evident that legislative intent contemplated a special arithmetic where the zero-element differs from the role that number 0 has in traditional arithmetic.

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    The Oklahoma supreme court has clearly never seen Chinese Drunken Boxing, or "deft clumsiness" would not have been their word choice =) – Cort Ammon Dec 11 '18 at 1:50
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    @jpmc26 It depends. If the legislators' "special" arithmetic or set of axioms is flawed so that it leads to inconsistencies (that is, falsehoods), then that is unconstitutional compelled speech. As such, it warrants a similar outcome as in Entertainment Software Ass'n. – Iñaki Viggers Dec 12 '18 at 14:10
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    What I was suggesting was that I don't think the Constitution grants Congress the power to force people to say anything in particular, regardless of whether that thing is true or false. – jpmc26 Dec 12 '18 at 15:50
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    @chloe however, there's a distinction between "impossibility" and "we don't wanna coz it's hard". Making the circumference of your circle 3.2 instead of 3.14 is impossible. Intentionally creating barrel scratches is just hard. – Harper Dec 16 '18 at 17:44
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There may be a purpose to have laws which are impossible to follow.

(I'm neither a lawyer nor a politician, following points are what I like to call qualified hearsay - they come from qualified people I know personally but were given as a remark or during a chat over a cup of coffee and therefore are not easily substantiable with rigorous sources. You can treat them as a hypothetical ideas for your thought experiments.)

Everybody is implicitly guilty

Confident citizens and transparent law is the worst enemy of totalitarian regime. You learn to live with ingrained feeling that there surely is something you are guilty of. Merely being addressed by police makes you nervous and malleable; should you stand up against oppression, it is easy for the state apparat to detain or convict you of one or more default offenses.

A good example would be the law present in many, if not all, socialist bloc countries saying that knowing of a comrade having commited an offense or merely planing to and not reporting it to authorities is an offense in itself. Whether you did or did not know would be determined by the authorities.

Make your laws very strict with a hope thay they will be followed at least to a degree

Not laws in themselves, but standards (technical norms) regarding nuclear power stations in the former Soviet Union were strict to the point where they were technically impossible to follow given the state of the art. For example the standards for manufacture of high pressure pipes would state very low level of material impurities that when the actual manufactured material contained twice the level of impurities the pipe will still be very safe to operate. In a centrally planned economy with ever more ambitious production projections and declared zero need for contingency this was one of several ways how to create a bit of a wiggle room. (Source: I once worked for a nuclear power research institute supporting Soviet technology and was told this by an expert on stainless steel.)

So there you have a bit of an illustration what may happen if a law is intentionally impossible to follow. Since you labelled your question 'United States', I believe the follow-up question is why would anyone want to propose such a law.

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    "Everybody is implicitly guilty" - Dystopian but painfully true. – nathanchere Dec 13 '18 at 8:19
  • Before it can we pass a law that says anyone found guilty of breaking a law can no longer hold any public office for the term of their life? – xQbert Dec 13 '18 at 18:52
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    Upvoted for libertarian rant even if it doesn't answer the question. – Chloe Dec 13 '18 at 19:54
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    @Chloe I believe it does answer the titular question directly and the hypothetical question in the original post quite substantially. Rule of law and civil order last only as long as they are not challenged successfully. Which happens quite often, as history informs us. – Pavel Dec 14 '18 at 15:51
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    I don't think this qualifies as a libertarian rant btw. – immibis Dec 15 '18 at 6:10
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Jury Nullification

While I'm sure this won't be a popular answer, it's worth noting that the founders of the United States solved this problem by requiring a jury trial. A jury has the freedom to not convict if someone breaks a stupid law, even if they know the person on trial did break the law. This is known as jury nullification, and merely bringing the idea up in a court is generally sufficient for you to be banned from the jury.

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    +1 Haven't heard that in a while. – J. Chris Compton Dec 14 '18 at 14:28
  • Huh, I guess I was wrong about this not being popular. – Drigan Dec 14 '18 at 17:05
  • We're not trying to fill a jury, but a bunch of people just trying to find interesting and creative answers to questions. – Ellesedil Dec 14 '18 at 17:27
  • It's unfortunate that prosecutors not only prevent jurors from being informed that they have a general duty not to convict people of serious crimes unless the defendant's actions were inconsistent with those of a reasonable, conscientious, and law abiding person, but in many cases don't even allow jurors to know whether the crimes at issue are considered "serious". If someone is charged with "obstructing an emergency vehicle" because they entered an intersection before there was space on the other side to clear it, and consequently got stuck when the light changed... – supercat Dec 14 '18 at 18:53
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    It's true, it's my favorite way to get out of jury duty. – Harper Dec 16 '18 at 17:46
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Firstly, all laws passed by congress are done for public policy reasons. Therefore, for your hypothetical, assuming that Congress knew that it was impossible for some citizens to answer the question, there must be a public policy reason to make it impossible to comply. Perhaps they are trying to get rid of the mathematically illiterate? The thing is that impossible to follow laws have been passed and defended in court in the past. Below is a link to one such incident.

https://reason.com/blog/2018/06/29/californias-top-court-impossible-laws-no

There is nothing wrong with making impossible to follow laws. There are laws that get passed that make businesses go bankrupt because they cannot take the heat. The question is: are these impossible to follow laws constitutional? If they are then they stand in court. If they are not then they fall apart in court. I would argue that in the case of your hypothetical it would be unconstitutional. It would deprive the mathematically literate of rights granted to other citizens. It would also not be ADA (americans with disabilities act) compliant. Many disabled people are by nature of their disability mathematically illiterate. There are probably other reasons why it would be unconstitutional but nothing comes to mind.

EDIT: It has come to my attention that the equation is literally impossible to resolve. I suppose the article is less applicable as a result. However my point stands. Being impossible to follow changes nothing. All that matters is the intent behind the policy. In the hypo Congress intends NOT TO JUST IMPRRISON EVERYONE BUT INSTEAD TO CAUSE THE NATION TO COLLAPSE. I'm sure the courts would find that unconsitutional. On the other hand, suppose Congress were to pass a law saying "Peanuts are banned unless they were acquired from the core of the sun". That is impossible. Congress' intent would be to simply ban peanuts outright. Sounds pretty constitutional to me. Therefore it will stand in a court of law.

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    Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Dec 11 '18 at 22:09
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    Regarding your examples at the end of the last paragraph, the peanut law would not be impossible to comply with. As you mentioned, simply not possessing peanuts would comply with the law. I think what the OP was asking about would be something more like, "You must eat 10 peanuts per day that were grown in the core of the sun. Failure to eat 10 peanuts obtained from the core of the sun on a given day shall be punished by up to 10 years imprisonment." – reirab Dec 13 '18 at 10:28
  • @reirab A law saying you must eat such peanuts would be fine UNTIL the courts got their hands on it (which would happen very quickly). They would say the intent for such a policy would be the mandatory imprisonment of everyone, which is unconstitutional (it would involve the deliberate collapsing of this nation). On the other hand, if people were fined for breaking that law that would be okay. The courts would just say that the intent is to tax people, which is constitutional. – S J Dec 14 '18 at 22:26
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    @SJ Courts generally draw a line between fines (punishment) and fees or taxes, though. NFIB v. Sebelius spent quite a lot of time on this distinction, though the individual mandate was ultimately ruled a tax (with extreme dissent from 4 justices.) I'm pretty sure it would be struck down as an unconstitutional fine. At any rate, my point was more just that the analogy in the answer doesn't quite fit, as it is completely possible to comply with that law by simply not possessing peanuts of any sort. – reirab Dec 14 '18 at 22:31
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    @reirab: And now that the tax has been removed, a court did find ACA unconstitutional (having no severability clause played an important role as well). – Ben Voigt Dec 17 '18 at 1:37
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It gets ignored.

This is not a hypothetical; just do a search for "dumb laws" and you'll find hundreds of examples of laws that are either impossible or impractical to enforce. My personal favorite is the law prohibiting dogs from chasing cats (because we all know how law-abiding dogs are!). Of course, I don't know how many of these are real laws and how many were just made up for amusement; it takes a bit of effort to track them down. Still, a surprising number of them are real.

There are also a lot of old laws implemented at a time when it made sense, that are now meaningless, or that were nonsense to begin with. The most famous example of this, of course, is the english law making witchcraft illegal, which managed to stick around (in one form or another) right up until 1982. As far as I am aware, it is still illegal for MPs to wear armor in parliament, while the Metropolitan Police Act 1839 makes it illegal to play annoying games, or to shake a rug in the street. Yes, you read that right; it is illegal to be annoying.

Frankly, at this point the laws have become so byzantine and ridiculous, that I guarantee you break at least one every week.

A couple of years ago, a new law was passed that outlawed scented candles. Needless to say, nobody is bothering with it. Laws only matter if they are actually enforced, and the police are far too busy tackling real crime to waste their time on every crazy idea dreamed up by politicians with too much time on their hands.

Sorry my examples are all from the UK, but I think my point stands in general.

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    GIven that only yesterday a member of the UK parliament picked up the mace, which although ceremionial would make a very effective weapon, the law against wearing armor in parliament is arguably still relevant. (Ref: bbc.co.uk/news/av/uk-politics-46514458/…) (And the seating arrangement was specifically designed to prevent attacks one's political opponents from a seated position, using a sword!) – alephzero Dec 11 '18 at 13:23
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    A good number of wacky U.S. Laws are an appeal to ludicrousness of a debated legislation (a number of them were appended to another law to demonstrate that the law was so stupid that we should pass my stupid idea as well. Most often by a member of a legislature that gave more credit to the intellect of his peers than he should have). Others are laws that make sense... but we thought this was obvious (in Baltimore, it is illegal to take lions to the theater... it's clearly obvious that this should be a good idea, but apparently they needed to clarify this point). – hszmv Dec 11 '18 at 15:23
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    Others are from the fact that common law allows judges to clarify the laws and some Americans can do some tremendously dumb things (i.e. Recently, it was found in Florida that throwing an Alligator through a Drive Through Window (of a Wendy's) is considered an assualt with a deadly weapon because this specific case happened in Florida (the state of "This is why we cannot have nice things") and this was what the offender was charged with for that incident. – hszmv Dec 11 '18 at 15:27
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    Others made sense at the time, but no no longer remain relevent but no one bothered to repeal them. Baltimore (again) has a standing ban on owning Parrots as pets. This is due to a historical epidemic that was determined to be caused by diseased parrots entering the city. This is no longer the case, but parrot ownership is not an important issue to the city at the moment. – hszmv Dec 11 '18 at 15:29
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    @alephzero: swords: the oft-reported fact about the distance between the red lines on the carpet being equal to the length of two swords is probably a myth, according to this book - on the grounds that the layout of the chamber dates back to when the current Palace of Westminster was built in the 19th century, by which time MPs no longer wore swords. – Steve Melnikoff Dec 12 '18 at 10:53
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One common consequence of laws that are impossible, or very difficult to comply with, is increased opportunities for graft and bribery. Just give the local LEO or court official a gift and he will document that you have complied.

Sometimes such laws are enacted for this very purpose. Fortunately that is more common in other countries than in the US currently.

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    Or they can be selectively applied. Asset forfeiture springs to mind. "Guilty of being suspected" too. – mckenzm Dec 12 '18 at 3:59
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In the United States, the Eighth Amendment's prohibition against cruel and unusual punishment has been interpreted as prohibiting the government from criminalizing behavior that cannot be avoided.

See, most recently, Martin v. City of Boise. Here, the Ninth Circuit Court of Appeals held unconstitutional a law that prohibited people from sleeping in public. If you do not have a home and cannot obtain one, it is impossible for you not to violate this law.

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Laws That Are 'Impossible' to Follow Can Still Be Constitutional, Says California Court

California passed a law a decade ago that demanded gun manufacturers implement microstamping technology that would imprint identifying information on bullets as they were shot from semi-automatic weapons. Gun manufacturers say the technology hasn't advanced enough to comply with the law. Smith & Wesson announced in 2014 that they would be pulling some guns from the market in California rather than complying with the law (a cynic might theorize that this is the law's actual intent).

California's Civil Code § 3531 says

The law never requires impossibilities.

So it is possible for legislatures to pass impossible laws. The court says they won't invalidate the law, but leaves room for special exemptions for punishment from those laws.

The court does not suggest that people can face punishment for being unable to comply with impossible laws. Instead, the court says, "impossibility can occasionally excuse noncompliance with a statute, but in such circumstances, the excusal constitutes an interpretation of the statute in accordance with the Legislature's intent, not an invalidation of the law." Essentially, it's not unconstitutional to pass impossible laws, but the courts can exempt people from the consequences of those laws without overturning the laws themselves.

The court acknowledges its role in making sure that people are not punished for being unable to comply with a law because it's impossible—that would be an unconstitutional violation of a person's rights. It just can't use that basis for invalidating the law itself.

So the court, depending on its bias, will leave an impossible law on the books, but require people who violate it to challenge the law every time in order to be excused from the punishment.

For your specific example, the government cannot compel speech. So providing a mathematical solution would be a form of compelled speech (as is writing computer code). So not only are you protected from punishment for what you say, you cannot be forced to say things the government wants you to. (There is also the 5th Amendment against compelled testimony against yourself.)

Compelled Speech

The compelled speech doctrine sets out the principle that the government cannot force an individual or group to support certain expression. Thus, the First Amendment not only limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.

In West Virginia State Board of Education v. Barnette (1943), the Court ruled that a state cannot force children to stand, salute the flag, and recite the Pledge of Allegiance.

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Faced with this in a local law, I went to court, and didn't argue constitutionality, nor legislative intent. Rather I argued practical difficulty.

I will not elaborate more, because I do not understand law, in this instance, well enough to do so. But for the lower court, it worked and the state did not appeal the matter.

Addendum: Let me give an example which my research came up with when preparing my case.

Issue: When a vehicle is stopped to discharge a passenger, must the driver remain at the controls, while the passenger is being discharged? The zone permits stopping for loading and unloading [of passengers, cargo]. In this instance, a passenger is a 92 yo female who needs assistance entering and exiting the vehicle, but is capable of self-ambulating.

Rules: A loading zone exists to load and unload passengers, and a motor vehicle may not remain in the zone for any longer than is required to actively load or unload the motor vehicle. A stopped motor vehicle must have a driver at the controls, otherwise the vehicle shall be deemed parked. Also, a driver may not leave a motor vehicle engine running when the driver is not at the controls.

Analysis: It is normal practice for medical transport drivers to provide assistance to mobility limited passengers, and such assistance is essential to safety and efficiency at locations like train stations and airports when discharging or onboarding passengers. While the strict interpretation of stopping may not apply if the driver leaves the controls for purposes of assisting a passenger, it is the most efficious manner to assure that the rider's needs are being met, and that they safely board and unboard the motor vehicle. Furthermore, if mobility impaired riders were forced to use other loading locations, then they would normally be required to ambulate further, from a more distant location. [Or in the alternative, the majority of people would have to travel further to load and unload, to make a more desirable location available for mobility impaired passengers.] (Also included in the argument/analysis was much about ADA, state disability laws, equal access, etc.)

Conclusion: Where a mobility impaired passenger, who needs assistance boarding or unboarding a vehicle, the driver of that vehicle is most familiar with their needs and can efficiently assist the rider. This is commonly done by bus drivers, and provided for under the city transportation rules for bus drivers. Therefore, in the case of automobiles and other motor vehicles, there is practical difficulty, if the driver does not temporarily abandon the vehicle controls, and assist the passenger. To not do so, may require replanning of loading zones, inconveniencing the majority of passengers, and may violate the rights of mobility impaired passengers, in likely violation of ADA and state laws.

Result: County court ruled that assistance to passengers when stopping to load and unload passengers did not violate motor vehicle code regarding stopped vehicles.

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    You didn't even tell us what the law was, what the argument was, or the locality. – Chloe Dec 13 '18 at 20:19
  • @Chloe, the local law is complex, and crosses jurisdictions, and relies on administrative processes outside that locality. The circumstances, if explained with clarity to allow someone to follow it, would take a couple of pages. I know that because I briefed the court. FWIW, I was on a zoning board for 32 years, and practical difficulty is normally associated with zoning. In my case, I used it in a criminal matter, but the result was effective. Furthermore, the OP posted a hypothetical case, so the specifics of my case are largely irrelevant. – mongo Dec 13 '18 at 21:06
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    Stack Exchange answers (unlike comments) are allowed to be a couple of pages. Some of the best answers are that long. – immibis Dec 15 '18 at 6:11
  • @immibis, understood. In Aviation SE there is a long posting on pilot responsibilities under common law, etc. Well, not super long, but allot of supplements added. In this instance the case is just too complex to lay out here and not have people chasing rabbit holes. I am getting beaten up on down votes, apparently because I am not sharing the details. If that is the way this works, there is a big disincentive to share information. What I wanted to share is that practical difficulty is a reasonable defense, and has been used regularly in administrative contexts, as well in some criminal.... – mongo Dec 15 '18 at 15:04
  • If it's criminal, they can't appeal the matter. – Harper Dec 16 '18 at 17:47
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Many US laws are already impossible to follow because, quite simply, they are impossible to know about. For example, a child born in France to US citizen parents is legally required* by US law to report all of his bank accounts to the US government. This despite the fact that he may have never left France in his entire life, never studied US law and does not have an American accountant in a 200 mile radius. The penalties for not doing so include massive fines and jail time.

There simply is no way the child could have known about these legal requirements, yet could and most likely would be held responsible for not complying - including by the French government who have agreed to prosecute French citizens and residents who do not comply with these US laws. (see also "Accidental Americans")

* assuming a net worth of over USD $10,000, which is essentially every adult

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    These laws are published, so there certainly is a way for him to comply. It is not even reasonable to argue that such a person would not have known that he is a US citizen (whereas Iran's obligatory paternal citizenship law is little-know). – user6726 Dec 11 '18 at 20:45
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    "These laws are published" I don't see anywhere that the OP was asking about secret unpublished laws. "It is not even reasonable to argue that such a person would not have known that he is a US citizen" Why would a person who has spent their entire life in Europe know that they are a US citizen? I suppose you are assuming his/her parents are legally literate and have informed him/her. But that is a big assumption – rayray Dec 11 '18 at 20:59
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    I'm addressing your premise, which itself is not relevant to the OP. Re-read the OP, and note that it is about literally impossible requirements, and not about legal ignorance. – user6726 Dec 11 '18 at 21:10
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    I would argue that the odds of this hypothetical child being in compliance with the laws of I've mentioned are so low, that we could for all practical purposes call them impossible. – rayray Dec 11 '18 at 21:19
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    @mongo when he grows up, obviously. – rayray Dec 12 '18 at 19:08
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This does happen. For example, the state of California has passed a law requiring certain firearms to have a feature that is not simply uneconomical, but actually impossible to manufacture with current technology. In effect, this is an outright ban on the affected types of firearms. Apparently the legislators believed that this trick would protect the law from Constitutional challenges, and so far they have been right. The law was upheld by state courts, and AFAIK, opponents have not challenged it in Federal courts, possibly due to the current fickle judicial environment. But this could change overnight depending on future appointments to the Supreme Court.

  • that is a good point. NY did something similar when they reduced the size of magazines to sizes not available in the market. See: buffalonews.com/2015/10/19/… However, while an appeals court rules that 10 rounds in a 10 round magazine is OK, the law has not been changed, AND people have since been charged with more than 7 rounds and having a 10 round magazine. Go figure. Finally, I do not agree that this a law that is impossible to follow. It merely removes any affected gun from use. – mongo Dec 17 '18 at 3:33
  • @mongo Of course, banning a class of firearm normally allowed in the US has Second Amendment implications. – David Thornley Dec 18 '18 at 16:46

protected by feetwet Dec 13 '18 at 23:11

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