Can Congress Outlaw the Courts?

IANACS (I am not a constitutional scholar), but this strikes me as strange.

House Debates Stripping Federal Courts of Jurisdiction Over Gay Marriage

(bolding mine)

I have just re-read the constitiution and could not find anything that I could interpret as giving Congress the power to enact a law that would be immune to judicial review. What are they talking about?

I agree that using such a power (if it exists) would truly set a dangerous precedent.

Note: Placed in GD because two viewpoints seem to exist.

Just heard my Fed Courts professor talking about this on the phone yesterday. She very emphatically feels that it’s a disastrous proposal, and one that is of dubious constitutionality.

In doing this, Congress is essentially amending the Constitution without going through the intentionally arduous Article V process. The proposed statute is absolutely indistinguishable, in its bypassing of the amendment process, as one that stated, for example, “Congress shall be empowered to make laws abridging the freedom of speech of citizens whose political views are deemed, by the President or by a majority vote of both houses of Congress, to be harmful to the republic. Neither the Supreme Court nor any other federal court shall have jurisdiction to judge any act or action taken under this law, or the law itself, for its constitutionality.” Presto, an eviscerated First Amendment that the federal courts ostensibly can’t touch. Plus, the supporters of this bill aren’t acknowledging that it amounts to constitutional amendment. There are very few instances in which the phrase “slippery slope” is appropriate. Legitimating an amendment to the Constitution on the strength of a Congressional majority and a presidential signature is one of those instances.

Keep in mind, though, that the power of the Court to review the constitutionality of legislation is itself nowhere to be found in the Constitution.

The bill reads “No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.”

The lower courts were created by an Act of Congress and this bill would strip them of the power. However the Supreme Court is established by the Constitution. The bill seeks to strip them of appellate jurisdiction in the DOMA case. And presumably keep it out of their hands.

However Article III of the constitution says:

(bolding mine)

I don’t see how they can Constituionally strip the Court of original jurisdiction. They’re trying to force this into SCOTUS without having any District Courts rule knowing that SCOTUS is reluctant to take any case expect on appeal.

Well, and that the Supreme Court isn’t going to have original jurisdiction over a DOMA case unless a state sues the U.S. government. Which I really can’t see happening for this statute.

There’s a bunch of complicated, boring constitutional debates among academics, by the way, regarding what Congress does and doesn’t have the power to take away from the Supreme Court, the other federal courts, and the state courts. I won’t even attempt to relate it, but I studied it and it’s out there. And it’s by no means a settled area of law.

Then where is the check and balance of the courts on Congress? I had always thought the judicial review of constitutionality was the courts’ main check and balance.

They’re attempting to use the Exceptions Clause to take away jurisdiction. Article III states: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Those three little words there periodically give constitutional scholars headaches. Most, but by no means all, believe that it doesn’t give them the power to do what you descibe. Here’s my thoughts on the matter from another thread the last time it came up:

The thread is H.R. 3799…let’s take SCOTUS out of the Church/State debate… Lots of other good stuff in there. There have been other threads on the Exceptions Cluase, too, but I can’t find them at the moment.

That is tied to a SCOTUS ruling on Article III.

The principal of Constitutional review was established in Marbury v. Madison.



I thought it was unresolved because the justices haven’t stopped laughing at the LAST person to propose it.

I’m not a Constitutional scholar either, but no, I don’t think Congress can do this. I would wager anything that the people proposing the bill are fully aware of that and are just grandstanding to convince the anti-gay marriage folks that they’re doing everything they can to stop it.

Grandstanding wastes time that could be better spent on important things like energy and real homeland security.

But we knew that.

pravnik: Sheldon v. Sill, 49 U.S. 441 (1850), is also interesting in this regard, as is Battaglia v. General Motors, 169 F2d 254 (2d Cir.) (1948).

(When I started this post I really meant to do more than just cite and run, but research assistanting calls. I’ll be back to more fully explicate the above gobbledegook, if someone else doesn’t first.)

Board residents that poo-poo substantive due process have never, to my knowledge, commented on whether this was a good thing. It seems, essentially, a total power-grab by judicial fiat, if anything ever was. Yet, to my eyes, it was one of the most essential things the court could have ever done to ensure a fair legal system.

This proposal has about as much chance of passing the Senate as Ralph Nader does of being the next president. The House can debate and pass all they want. This never reaches the Senate floor.

It’s not really about this particular bill; it’s about whether Congress can just attach a provision that essentially says, “This law shall not be subject to being overturned by the Supreme Court.”

As pravnik stated, this has been tried before and has failed, so I feel a bit more comfortable. It seems to me that if this was ever successful, it would essentially render the SC irrelevant.

Marbury v Madison was not nearly as controversial or as much of a “power-grab” as is often implied(or outright stated) in various civics courses. Judicial Review was not a new concept, it existed in British law and was part of the legacy from British common law which was inherited by the new country. Some more analysis found here


A much more comprehensive and well-cited discussion of the US judiciary and the power of Judicial Review can be found on the FindLaw page annotating Article III of the constitution.


It seems to me that this is one of the scariest times in our history since the Civil War/War Between the States. Regardless of how the SCOTUS had ruled, the fact that the election of a president was decided by them is really creepy. Combine that with the fact that the disputed state wa headed by one of the candidate’s brother. Now we have the possibility of a face-off between the SCOTUS and Congress. Is it going to come down to the military taking sides?

erislover is right, though, Mgtman, that Marbury is surprisingly poorly reasoned and ill-founded in the constitutional text.

It seems to me, when you come right down to it, the checks and balances work up to a point. What I mean is, Congress is unquestionably the supreme authority if it gets the bit in its collective teeth and chooses to exercise its powers to the full.

Congress can, for whatever reason it chooses, remove from office any other government official by impreachment and trial and its own unpopular members whenever it desires. So the Congress can keep removing judges, presidents and its inconvenient members until they get someone who will do exactly what the Congress wants done.

Admitedly an extreme and highly unlikely scenario, but the power is there and can be used.