What if it is determined retroactively that a law is literally impossible to implement or comply with?

For example of something being impossible to implement, let's say the federal government passes a laws stating that the all government agencies must use a secure implementation of RSA for all government communications. 6 months later a cryptographer proves that all implementations of RSA are insecure, and it is impossible to create a secure one. Suddenly, government agencies realize it would be illegal for them use communication. This, however, would also be illegal since it prevents them from upholding other regulations. We will also say legislators did not write into either the law requiring RSA communication or the law requiring government agencies to do their duties what would happen in this scenario.

As something that is impossible to comply with, let's say the federal government passes a law stating that parents must take their children once a year on February 1st to have their appendixes X-rayed by a CDC approved clinic to make sure they do not develop appendix cancer. However, the CDC publishes a metastudy one year on January 28th showing that child appendices are super sensitive to X-rays, and that it will drop the approval of any Clinic that offer this procedure. It now becomes impossible for parents to comply with that law, since by definition any clinic that offers that procedure will not be CDC approved.

So, what happens in a case like this? Note my question is different from What if a law is literally impossible to follow? in that the fact that it was impossible to implement/comply with only become apparent afterwards.

I think its reasonable to suppose that no court is going to impose penalties against someone for doing something impossible. My question is how would they go about answering the following questions:

  • Do they enforce the spirit of the law, and if so, which one?
    • For example, would the courts expect government agencies to use some other form of secure communication? If so, which ones could they use? Could it be another form of digital communication, or would a court expect them to use briefcases instead. Or would they expect agencies to use insecure RSA implementations. Or would they expect them to cease doing their duties that require communication since they can not comply with the RSA law.
    • Would parents be expected to have their child's appendix checked some other way at a CDC approved clinic, like a blood sample? Or would they be permitted to get their child's appendix x-rayed at a non-CDC approved clinic? Or would the law that gets discarded be the law stating you can not threaten people, enabling parents to violently force the CDC to approve clinics that offer the procedure?
  • Or does the law simply get discarded completely until the legislature passes a new version of it? And if so, if there are multiple laws that are individually obeyable, but can not be simultaneously obeyed, which is one is discarded?

Now, I do not expect you all here to know the answers to these hypothetical questions, but what procedure would the government use, if any, to determine the answers to them. The problem is that different people might come to different conclusions about the best way to handle the situation, and these views would need to be reconciled for the sake of impartiality.

  • 2
    Laws have to be enforced. When your governor or mayor goes on TV and says they won't enforce Federal immigration laws, there isn't much the Fed can do about it.
    – Mazura
    Commented Jan 29, 2019 at 23:45

1 Answer 1


Normally, statutes don't crawl out of law books and enforce themselves. And, government officials have broad sovereign immunity for most of their activities, so in most cases the only remedy available if someone in the government doesn't enforce a law according to its terms is to seek an injunction ordering the government to carry out the law. Impossibility is a defense to an injunction request. Also, enforcement of many laws is vested entirely in the discretion of the executive branch and can't be compelled judicially at all.

When compliance can be judicially compelled because someone has standing to do so and the language makes the action required by statute truly mandatory, short of demanding full compliance with the law, a judge can set deadlines for compliance (a recent example of that involved a judge ordering the federal government to reunite migrant parents and children who had been separated).

In the absence of a court order, the attorney-general for the jurisdiction (or an assistant AG tasked with the job) and the chain of command managers responsible for the function and often aides on the chief executive's staff will come up with a compliance plan that is within the realm of the possible.

If none of those approaches is workable, the chief executive or top aides to the chief executive will typically approach friendly members of the legislature to seek a legislative work around. A substantial share of the bills in Congress or a state legislature at any given time that almost never make headlines are bills addressing situations like these that come up from time to time, for example, when a statutory requirement that used to become workable, ceases to be due to unavailability of resources or some technical barrier. Most of these bills pass on a bipartisan basis as a matter of course without the general public even noticing it. Most large omnibus laws are followed a few months later by a technical corrections bill address problems discovered in trying to implement the law.

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