Draft:Pre-enforcement ruling

A pre-enforcement ruling refers to a legal action that has been formally initiated regarding an individual’s compliance with legal obligations. Such a ruling involves the interpretation or application of the law to a particular set of facts provided by the individual seeking clarification. Pre-enforcement cases are used across the ideological spectrum to protect themselves and their constitutional freedoms, but challenges advancing “left-wing” or “liberal” interests are especially frequent. It is a contentment to a law that has not yet been applied against the party bringing up the challenge. The term includes informal guidance under section 213 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (Title II), as amended, letter rulings, advisory opinions, and no-action letters.

Courts permit pre-enforcement challenges under two circumstances: first, when the likelihood of enforcement is deemed "certainly impending" or poses a "substantial risk," and second, when the existing law is causing harm to the individual. This second scenario often arises in cases where a statute imposes restrictions on free speech, leading individuals to refrain from expressing themselves to avoid potential penalties. To address the adverse impact of this "self-censorship" injury, courts frequently entertain pre-enforcement challenges within the context of the First Amendment, even allowing individuals to contest laws without facing a "direct" threat of arrest.

Notable Cases
As early as 1923, the Supreme Court acknowledged that preventive relief could be sought without waiting for the actual occurrence of threatened harm — that if the injury is certainly impending, it suffices.

303 Creative LLC v. Elenis
303 Creative LLC v. Elenis, 600 U.S. 570 (2023), represents a U.S. Supreme Court decision addressing the confluence of anti-discrimination regulations in public accommodations and the Free Speech Clause of the First Amendment to the United States Constitution. In a 6–3 decision, the Court sided with a website designer, ruling that the state of Colorado lacks the authority to mandate the designer to produce content conflicting with her personal values.

Whole Woman's Health v. Jackson
Whole Woman's Health v. Jackson (2021) was a U.S. Supreme Court case challenging the Texas Heartbeat Act, which prohibits abortions after six weeks. The law allows private individuals, not state officials, to enforce it by suing those involved in post-six-week abortions. This unique structure aims to avoid pre-enforcement judicial review, as challenges to state laws usually target state officials who enforce them, and the state is immune from such lawsuits.

Epperson v. Arkansas
In 1968, the U.S. Supreme Court struck down a state law that banned the teaching of evolution, despite the fact that the state had not made any attempt to enforce it in the forty years since its enactment in 1928.

Planned Parenthood of Wisconsin, Inc. v. Van Hollen
In 2013, Planned Parenthood of Wisconsin initiated a pre-enforcement challenge against a law, filing it on the day the governor signed it—three days before the law was set to take effect and before it had been enforced against anyone. The law mandated that abortion providers secure admitting privileges at a hospital in close proximity.

Mangual v. Rotger-Sabat
In 1999, a newspaper reporter contested a criminal defamation statute, despite no prior enforcement against the reporter. The challenge stemmed from the statute dissuading the reporter from probing criminal activities involving government officials. The United States Court of Appeals for the First Circuit entertained the reporter's challenge, emphasizing that the "credible fear of being brought to court on a criminal charge" was sufficient for standing, even if the likelihood of conviction was not high.