Prosecution of politicians who violate the constitution

Question

When a politician violates the constitution, why aren't they criminally prosecuted?

There are plenty of examples out there where a politician passes a law that they most likely know wont stand up in court. Someone has to prove standing and incur the cost of trials, appeals, etc. to get the law overturned.

Sometimes they knowingly do this for "temporary measures" because they know it will take longer to go through the courts than they need to to be in effect. Abuses in "States of Emergencies" come to mind as a common one, but the current example with the governor or NM banning the carrying of guns is a recent example.

Why are there no criminal consequences when these things are done? They have deprived the populous of their constitutional protections, which by default would be civil rights violations that if any of us were to commit, we'd be locked-up.

Without any criminal culpability, there's no reason for them not to do it again. There's also no example being set so that other politicians don't do the same thing in their jurisdictions.

Answer 1

In the case of legislative officials, the U.S. Constitution, and most state constitutions, have a "speech and debate clause" that absolutely immunizes legislators from civil or criminal liability for their legislative conduct.

Executive branch officials have absolute immunity from some kinds of liability and qualified immunity from other kinds of liability. Absolute immunity generally applies to quasi-legislative acts, like making decrees or executive orders or regulations. Judges likewise have essentially absolute immunity from liability for incorrect discretionary judicial decisions.

The remedy for someone aggrieved by a public official's legislative or quasi-legislative action is to go into court to have an official determination made that their decision is unconstitutional and invalid. It is a crime to act corruptly. It is not a crime to act incorrectly.

Similarly, when judges make an incorrect decision of law, the remedy is to appeal the decision, not to sue or prosecute the judge.

Essentially, these immunities are a reflection of the fact that we recognize that most kinds of mistakes will be made at some point during a political career, and no one would run for office if the peril of a criminal prosecution from doing that incorrectly was great.

Answer 2

A single politician never "passes a law" as you claimed.

Any member of a legislative body may draft a bill, which then gets edited in committee, edited by staff, reviewed by attorneys, revisions proposed by lobbyists, and then finally voted on by the entire body. It then goes to the OTHER body (except in unicameral states), where it goes through the whole process again. The two version from the two bodies are reconciled, before being signed by a President, Governor or similar executive.

The law that is finally passed often has little resemblance to the bill that was originally proposed.

How a Bill Becomes Law

By the time a bill is signed into law, there has been ample opportunity to address Constitutional questions, and there is a good faith belief that the bill is likely Constitutional. No single politician can be found responsible, especially criminally responsible for the actions of 2 different legislative bodies plus the Executive plus all the infrastructure of staff and lawyers behind the scenes.

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A typical criminal law states a specific infraction, a specific criteria, a jurisdiction and consequences. Such as, "within the city limits, operating a motor vehicle in excess of posted speed limits shall be subject to a $250 fine, enforced by the municipal police"

The Constitution does not work that way. The exact meaning of "necessary and proper", (Article I, Section 8) has been hotly debated for decades. Even simple terms like "to coin money, regulate the value thereof" are parsed endlessly (is paper money "coined"? Can Congress set prices of goods to regulate the value of coin?). And no specific police force is given jurisdiction, and there is no specific penalty for your supposed "crime".