Trump and the GOP Dig Up “Zombie Laws”

Donald Trump may have won the popular vote in 2024, but he did not win a majority of all voters.  Thus, despite claims to the contrary, he and Republicans have no mandate and Project 2025 remains highly unpopular.   Faced with the reality that there are likely not enough votes in Congress to pass the most reactionary aspects of the MAGA/Project 2025 agenda, Trump and his extremist advisors and sycophants realize they will need an alternate route to inflict on a majority of Americans policies they clearly do not want.  Hence, the effort to resurrect so-called "zombie laws" - laws still in the statute books but unenforced in some cases for many years or struck down by U.S. Supreme Court rulings but subject to reactivation if the extremist on the Court reverse past rulings - to achieve what may be impossible legislatively.   At the federal level, the Comstock Act from the 1870's is particularly troubling.  Meanwhile, here in Virginia, a reversal of the ruling in Lawrence v. Texas and/or the Obergefell ruling, would reactivate the state's sodomy law and bans on same sex marriage.  The latter would conflict with federal legislation protecting interracial and same sex marriages, but lengthy litigation might be involved to stop state enforcement by zealots in the Youngkin regime. A piece at Vanity Fair looks at this effort to resuscitate zombie laws:

During Donald Trump’s first term, courts provided a necessary check on his ambitions by blocking many of his deregulation efforts, on issues ranging from the environment to immigration, along with his initial version of a travel ban targeting Muslim-majority countries. Even the Supreme Court, which has empowered Trump in a number of ways, prevented him from dismantling DACA.

This time around, to avoid such pesky checks and balances, Trump and his allies have revisited US history and found some truly heinous old laws to advance their right-wing agenda. These “zombie laws,” as they’re called, are provisions that haven’t been enforced or invoked for decades but are somehow still on the books. Yet they could be resurrected in a radical fashion if and when Project 2025 becomes America’s reality.

Arguably the worst among them is the Comstock Act of 1873, a product of the Victorian-era moral panic named after anti-vice activist Anthony Comstock. It was designed to restrict the distribution of “obscenities” at the time, like pornography, contraceptives, and even some medical textbooks. Despite its anachronous nature, the Comstock Act has never been repealed. And earlier this year, during oral arguments for FDA v. Alliance for Hippocratic Medicine—which centered on the agency’s approval of mifepristone, an abortion medication often ordered by mail—justices Clarence Thomas and Samuel Alito mused on the idea of bringing the law back to life.

Of course, the Comstock Act is some “obscure law,” whose enforcement, The American Prospect notes, essentially stopped in the 1930s, after federal courts clarified that it could only be applied when someone was mailing an item or drug specifically intended to be used illegally for an abortion. The law had been largely dormant for decades, until Trump appointed Amarillo, Texas, district judge and anti-choice zealot Matthew Kacsmaryk, who used it to try to take the abortion pill off the market. “We don’t need a federal ban when we have Comstock on the books,” as Jonathan F. Mitchell, who has worked as a lawyer for Trump, told The New York Times.

[M]ore to Mitchell’s point is the fact that the Comstock Act might allow Trump to circumvent congressional approval. “Abortion opponents are turning to laws like the Comstock Act,” as legal scholar Mary Ziegler told me in an email, “because they doubt that even a Republican Congress would pass a sweeping ban that voters today would never accept.” The GOP could presumably shut down the mailing of abortion pills without incurring the poor optics of a federal ban; it could also claim that it brought the issue “back to the states,” even while using a federal law to negate states’ laws. Still, the larger question remains: Why was Comstock even allowed to stay on the books in the first place? And why didn’t Democrats ever make a concerted effort to repeal it earlier?

Aside from the Comstock Act, the other zombie law in contention is the Alien and Sedition Acts of 1798. The acts, passed by a Congress in the control of Alexander Hamilton’s Federalist Party, tightened restrictions on anti-government speech and gave the government power over immigrants deemed threats to the country. One of them, the Alien Enemies Act—which allows the federal government to relocate foreign nationals from countries deemed hostile to the United States during times of war—has only been invoked on three occasions. It was used by James Madison against the British during the War of 1812; by Woodrow Wilson during World War I to send more than 6,000 people, many of whom were German, to internment camps; and by Franklin D. Roosevelt during World War II, which led to the internment of Japanese citizens.

But now Republicans are angling to use it again, to create a legal framework for the mass internment and deportation of immigrants—perhaps the biggest promise of Trump’s campaign. The president-elect has repeatedly said that the residence of some 11 million undocumented immigrants in America constitutes a foreign “invasion”—incidentally a precondition for the law’s enforcement. The problem, though, is that Republicans need to prove that America is genuinely at war—which it isn’t, rendering their theory completely faulty. Nevertheless, the end result of Trump’s immigration platform might look a lot like the Dwight Eisenhower administration’s 1954 “Operation Wetback,” in which law enforcement used military-style tactics to forcibly remove hundreds of thousands of Mexican immigrants from the US.

Zombie laws may just be theoretical legal frameworks on a piece of paper. But they are also products of some of America’s most objectionable policymaking. Remember: America was the home of Jim Crow laws—which were the inspiration for the Nuremberg Laws. The Comstock Act and Alien and Sedition Acts were used during a time when American legislators were motivated by entrenched racism and sexism, writing immoral laws that masqueraded as moral.

The reason Trumpworld needs to use these laws is because its ideas are profoundly antiquated. Sure, Trump narrowly won this election. But no matter how mad Americans may be about inflation, no one is signing up for a return to the Victorian era.