760
Scalia, J., concurring
"wrong." (If it were, every citizen would have standing to challenge every law.) In fact, what a court does with regard to an unconstitutional law is simply to ignore it. It decides the case "disregarding the [unconstitutional] law," Mar-bury v. Madison, 1 Cranch 137, 178 (1803) (emphasis added), because a law repugnant to the Constitution "is void, and is as no law," Ex parte Siebold, 100 U. S. 371, 376 (1880). Thus, if a plaintiff seeks the return of money taken by the government in reliance on an unconstitutional tax law, the court ignores the tax law, finds the taking of the property therefore wrongful, and provides a remedy. Or if a plaintiff seeks to enjoin acts, harmful to him, about to be taken by a government officer under an unconstitutional regulatory statute, "the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding." Massachusetts v. Mellon, 262 U. S. 447, 488-489 (1923) (emphasis added). In such cases, it makes sense to speak of "remedial discretion."
In the present case, however, ignoring the unconstitutional statute (which the Ohio courts were bound to do) did not result in the conclusion that some remedy must be provided (over which the courts might have some discretion). Rather, it resulted in the conclusion that the remedy which the plaintiff sought could not be provided. Respondent's suit was concededly untimely under the applicable state statute of limitations, Ohio Rev. Code Ann. § 2305.10 (1991). See ante, at 751. When petitioners moved to dismiss the suit, respondent replied that the suit was timely by virtue of the tolling provision, § 2305.15(A). The tolling provision, however, was unconstitutional, see Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988), and since it was unconstitutional it "was . . . as inoperative as if it had never been passed," Chicago, I. & L. R. Co. v. Hackett, 228 U. S. 559, 566 (1913).
In contemplation of the law, then, all that the trial court
had before it was a concededly untimely suit, and (absent
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