Rule 5.1.Constitutional Challenge to a Statute—Notice, Certification, and Intervention

Last amended December 1, 2007 · Last verified June 30, 2026

In one sentenceRule 5.1 requires a party who questions the constitutionality of a federal or state statute to file a notice and serve the appropriate attorney general, and directs the court to certify the challenge so the government may intervene.

Full Text of Rule 5.1

Text sizeJump to: (a) (b) (c) (d)

(a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly:

(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:

(A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or

(B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and

(2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned—or on the state attorney general if a state statute is questioned—either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

(b) Certification by the Court. The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned.

(c) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional.

(d) No Forfeiture. A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.

End

Amendment History

(Adopted April 12, 2006, effective December 1, 2006; amended April 30, 2007, effective December 1, 2007.)

Plain-English Summary

Rule 5.1 makes sure a government gets a chance to defend its own laws. A party that draws into question the constitutionality of a federal or state statute — when no federal or state officer is already a party in an official capacity — must promptly file a notice and serve it on the United States Attorney General or the state attorney general.

The court must then certify that fact to the appropriate attorney general, under 28 U.S.C. § 2403. The government may intervene within 60 days (or a longer time the court sets), and until that intervention window closes, the court may reject the constitutional challenge but may not enter a final judgment holding the statute unconstitutional. Failing to file the notice does not forfeit a constitutional claim, but the steps protect against a statute being struck down without the responsible government being heard.

Frequently Asked Questions

When does Rule 5.1 apply?

When a party questions the constitutionality of a federal or state statute and no government officer is already a party in an official capacity. The party must file a notice and serve the relevant attorney general.

How long does the government have to intervene under Rule 5.1?

The attorney general may intervene within 60 days after the court’s certification (or a longer time the court sets), and until that window closes, the court may not enter a final judgment holding the statute unconstitutional, though it may still reject the challenge.

Source & verification. The rule text and amendment history are reproduced verbatim from the official Federal Rules of Civil Procedure (Fed. R. Civ. P. 5.1), a public-domain work of the U.S. Government. Prescribed by the United States Supreme Court under the Rules Enabling Act. The plain-English summary is original and written by us. Last verified June 30, 2026. · Official source

Also known as: FRCP 5.1Fed. R. Civ. P. 5.1constitutional challenge to a statutenotice to attorney generalcertification 28 U.S.C. 2403