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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?

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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?

Yes.

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.

For example, rather than establishing a landmark precedent decriminalizing polygamy (or declining to do so), the 10th Circuit held in Brown v. Buhman, 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.

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:

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.

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.

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  • A decision to not prosecute is not permanent and binding. An individual case as you mention could be moot, but the question ask about potential, i.e. "ever".
    – user6726
    Commented Dec 9, 2022 at 20:55
  • @user6726 It is moot because the parties don't currently have standing to sue. In principle, a suit could be reinstated or refiled if the policy changed.
    – ohwilleke
    Commented Dec 9, 2022 at 20:57

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