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Suppose that country X has law Y. A politician introduces bill Z, which is then voted on by the legislature. The legislature approves the bill by a 51 to 50 vote, and it becomes law, replacing and repealing law Y.

Some time later, it comes to light that one of the legislators who voted for bill Z was never eligible for their position in the first place - for example, because it turns out they are not actually a citizen of country X. Legally, would law Z then become void and would law Y be considered the law of the land?

I'm curious whether there is a clear legal answer to how this scenario would be handled in various jurisdictions.

Brian
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    Not an answer because I can't argue the legal basis, but in 2017-18 Australia had a very similar situation (representatives found to be ineligible for their roles due to dual citizenship) and as far as I can tell no laws were rescinded. You'd have to do a lot of digging through vote records to figure out whether it would have affected them, though https://en.wikipedia.org/wiki/2017%E2%80%9318_Australian_parliamentary_eligibility_crisis#Aftermath – llama Aug 26 '20 at 19:25

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In the United States, the answer depends on who is unlawfully in power.

In the hypothetical you presented, the answer is probably that the law would remain valid, as Congress generally has the sole authority to pass judgment on whether to admit the elected person. A third party would not have the ability to challenge the law based on the qualifications of a lawmaker.

But if we were dealing with an administrative official promulgating regulations, those rules would generally be void if that official were unlawfully appointed. That was the case in Nat'l Labor Relations Bd. v. Canning, 573 U.S. 513 (2014), where a cola distributor challenged a labor regulation, saying that the members of the NLRB who enacted it were improperly appointed. The Court agreed that the appointments were improper, so the regulations were nullified.

A judicial decision coming out under these circumstances would also be nullified if one of the judges weren't really a judge. That happened just last year, in Yovino v. Rizo. In that case, ten judges from the Ninth Circuit heard a case, and the vote split 6-4. But the author of the majority opinion died before the decision was published, which is when it become effective. The Supreme Court held that because there were therefore only five votes for that decision, it was not a majority opinion, and therefore not binding on future Ninth Circuit panels.

bdb484
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    Weird how the Supreme Court thought a 5-4 vote wasn't a majority outcome. 5 is a majority of 9 last time I checked (and is greater than 4). SCOTUS cases where 2+ Justices recuse themselves are binding, despite sometimes resulting in 4-3 rulings. – TylerH Aug 26 '20 at 14:47
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    Sometimes majority means 50% + 1, in this case 4.5 + 1 = 5.5, so 5 is not majority. – Oylex Aug 26 '20 at 15:23
  • Your judicial decision seems like a different case than this. The important part is "before the decision was published", whereas this question is about after it's been finalised. Case in point: all the decision deceased judges have made in the past aren't nullified because they died. – NotThatGuy Aug 26 '20 at 16:56
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    @TylerH The Supreme Court thought that a 5-5 vote wasn't a majority: "Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed." – Ross Ridge Aug 26 '20 at 17:05
  • @TylerH It was a court of more than 9 judges, so 5 isn't a majority. In both the circuit courts and the Supreme Court, the question is whether there's a majority of the judges participating. – bdb484 Aug 26 '20 at 17:26
  • @RossRidge a 5-5 vote isn't a majority; it's equally split between the voters. Or did you mean to say 5-4 vote? – TylerH Aug 26 '20 at 17:26
  • @bdb484 If the court had more than 9 voting judges (a recusal doesn't affect binding-ness, despite what SCOTUS-Arizona may have thought in 1971), then you have more than 9 votes, and they should all be factored into the count. It's illogical to say the court had 10 voting judges and then not count the vote of the 10th judge just because he passed away after the ruling. If one wants to say only 9 of the votes count, then the total should be out of 9, not 10. You can't have it both ways; this is one of many cases SCOTUS got flat-out wrong, frankly. – TylerH Aug 26 '20 at 17:29
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    @TylerH I meant what I said. You seem to have misread it. Part of the confusion seems to be caused by the answer stating that only 10 judges considered the case, when the implication of the Supreme Court's decision is that 11 judges considered the case, as is normal for the Ninth Circuit sitting en blanc. – Ross Ridge Aug 26 '20 at 17:31
  • @RossRidge I see, so the answer is incorrect; there were 11 judges voting, and 1 passed away, making it 5-5 instead of 6-5. Still spurious reasoning, but less difficult to swallow since the outcome is now a tie. – TylerH Aug 26 '20 at 17:35
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    I just checked. https://www.payequityadvisor.com/2019/02/on-technicality-u-s-supreme-court-vacates-ninth-circuit-ruling-barring-reliance-on-prior-salaries-as-defense-in-pay-discrimination-dispute/ is an article that asserts that yes, the "en banc" bit had 11 judges considering the appeal, divided 6-5 until Judge Reinhardt died. (My understanding is that in federal appellate courts, a "panel" is 3 judges and "en banc" is 11 judges, using odd numbers to avoid getting deadlocked in a perfect tie if an even number of judges were to split down the middle.) – Lorendiac Aug 26 '20 at 17:56
  • No legal system can prescribe a remedy for every possible kind of malfeasance by those in charge of administering it. Some kinds of malfeasance may create situations where a remedy fabricated out of whole cloth may show better respect for the rule of law than declaring that because no remedy is provided for, none is possible. Nothing within the Constitution or any other system of laws can fully describe all cases where such remedies would be appropriate, however. If someone in a regulatory position declares that X can legally do something which happens to be detrimental to Y, ... – supercat Aug 26 '20 at 20:10
  • ...but the person had no actual authority to say the action wasn't criminal, X should be immune from prosecution for the action in question, but should not necessarily be immune from having to compensate Y, at least to the extent that he actually benefited from the improper declaration. – supercat Aug 26 '20 at 20:14
  • This question is about a legislature. You seem to be answering about a bunch of random roles in the United States only. Could you revise this to answer the question? – Harper - Reinstate Monica Aug 26 '20 at 22:57
  • @Harper-ReinstateMonica The legislature-specific information is in the second sentence. – bdb484 Aug 27 '20 at 01:11
  • No it’s not. OP says nothing about the USA. – Harper - Reinstate Monica Aug 27 '20 at 01:34
  • I'm not sure if we have a disagreement on whether Congress is a legislature or on how to count to two, but yes, the legislature-specific information is definitely in the second sentence. – bdb484 Aug 27 '20 at 01:49
  • Not the second sentence I'm reading. Perhaps you should quote it. It seems like you are trying to be difficult and obstruct communcation. And your comment is insulting. – Harper - Reinstate Monica Aug 27 '20 at 05:56
  • Yes, there's definitely a communication breakdown. – bdb484 Aug 27 '20 at 06:06