# Can Congress Outlaw the Courts?
**URL:** https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394
**Category:** Great Debates
**Created:** [July 22, 2004, 7:32pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394 "2004-07-22T19:32:50Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@jebert](https://boards.straightdope.com/u/jebert)
#### Post date: [July 22, 2004, 7:32pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/1 "2004-07-22T19:32:50Z")
IANACS (I am not a constitutional scholar), but this strikes me as strange.
House Debates Stripping Federal Courts of Jurisdiction Over Gay Marriage
[http://abcnews.go.com/wire/Politics/ap20040722\_870.html](http://abcnews.go.com/wire/Politics/ap20040722_870.html)
> [@](#):
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> Nadler said he believes the legislation is unconstitutional, but legal scholars said the constitutional question of stripping jurisdiction from federal courts is unresolved.
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> “My sense is that Congress has [bold] explicit authority in the Constitution[/bold] … but it is a largely unexercised power,” said Douglas Kmiec, a Pepperdine University constitutional law professor and former legal adviser to Republican presidents.
(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.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [July 22, 2004, 8:06pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/2 "2004-07-22T20:06:58Z")
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.
> [@](#):
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> 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.
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.
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### Author:  [@Homebrew](https://boards.straightdope.com/u/Homebrew)
#### Post date: [July 22, 2004, 8:37pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/3 "2004-07-22T20:37:54Z")
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:
> [@](#):
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> 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.
(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.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [July 22, 2004, 9:01pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/4 "2004-07-22T21:01:09Z")
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.
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### Author:  [@jebert](https://boards.straightdope.com/u/jebert)
#### Post date: [July 22, 2004, 9:44pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/5 "2004-07-22T21:44:00Z")
> [@Gadarene](#):
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> 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.
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.
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### Author:  [@pravnik](https://boards.straightdope.com/u/pravnik)
#### Post date: [July 22, 2004, 9:50pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/6 "2004-07-22T21:50:43Z")
> [@jebert](#):
>
> 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?[/size]
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:
> [@](#):
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> Originally posted by **pravnik** in a different thread:
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> The Exceptions Clause does give Congress the power to limit the appelate jurisdiction of the Supreme Court. In Ex Parte McCardle, (1868) Congress put the brakes on a newspaper editor’s writ of habeas corpus by withdrawing a section of the federal statute that gave SCOTUS jurisdiction over his appeal, saying “’’[w}e are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” However, the same year a man named Yeager appealed a writ of habeas corpus to the Supremes under a different statute and was granted review. In other words, Congress can limit the avenues one can take to apply for a writ of habeas corpus, but can’t just flat out take away jurisdiction over all habeas corpus cases challenging the constitutionality of the Reconstruction statutes.
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> The same would apply here. Many people who are unhappy with a particular decision want to use the Exceptions Clause as a constitutional loophole: don’t like a ruling about the Constitution? Pass a law overturning federal precedent and deny the Supreme Court the power to reveiw it on appeal! Doesn’t work that way. It’s generally accepted that no provision of the Constitution can override another. Both must be read together. Congress can’t legislate away constitutional rights and restrictions. Most jurists read McCardle and Yeager as standing for the proposition that Congress can enact content neutral restictions on federal appellate power, e.g. procedural or jurisdictional laws to reduce caseloads, but may not use the exceptions clause to remove an entire class of cases from judicial review or attempt to direct substantive outcomes. To say otherwise would be to allow Congress to do with it’s right hand what it can’t do with it’s left.
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> That’s what this bill [H.R. 3799] is attempting to do. For the record, it’s not even that new of an attempt. Jesse Helms has been trying to do the same thing for years with abortion cases. Pretty much just smoke and mirrors to wow the folks back home, and something else to get incensed about when our “out of control judiciary” swats it down.
The thread is [H.R. 3799…let’s take SCOTUS out of the Church/State debate…](http://boards.straightdope.com/sdmb/showthread.php?t=240554) 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.
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### Author:  [@Homebrew](https://boards.straightdope.com/u/Homebrew)
#### Post date: [July 22, 2004, 9:59pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/7 "2004-07-22T21:59:52Z")
> [@jebert](#):
>
> 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.
That is tied to a SCOTUS ruling on Article III.
> [@](#):
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> Article III
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> Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
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> Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
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> 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.
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> The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
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> Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
> The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
The principal of Constitutional review was established in [_Marbury v. Madison_](http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm).
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### Author:  [@Homebrew](https://boards.straightdope.com/u/Homebrew)
#### Post date: [July 22, 2004, 10:02pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/8 "2004-07-22T22:02:33Z")
Gah!!!
“principle”
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### Author:  [@dropzone](https://boards.straightdope.com/u/dropzone)
#### Post date: [July 22, 2004, 10:05pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/9 "2004-07-22T22:05:21Z")
> [@Gadarene](#):
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> And it’s by no means a settled area of law.
I thought it was unresolved because the justices haven’t stopped laughing at the LAST person to propose it.
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### Author:  [@Marley23](https://boards.straightdope.com/u/Marley23)
#### Post date: [July 22, 2004, 10:08pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/10 "2004-07-22T22:08:35Z")
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.
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### Author:  [@jebert](https://boards.straightdope.com/u/jebert)
#### Post date: [July 22, 2004, 11:00pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/11 "2004-07-22T23:00:18Z")
> [@Marley23](#):
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> 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.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [July 23, 2004, 12:13am UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/12 "2004-07-23T00:13:32Z")
**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.)
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [July 23, 2004, 12:51am UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/13 "2004-07-23T00:51:41Z")
> [@Homebrew](#):
>
> The principal of Constitutional review was established in [_Marbury v. Madison_](http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm).
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.
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### Author:  [@spectrum](https://boards.straightdope.com/u/spectrum)
#### Post date: [July 23, 2004, 4:06am UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/14 "2004-07-23T04:06:17Z")
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.
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### Author:  [@jebert](https://boards.straightdope.com/u/jebert)
#### Post date: [July 23, 2004, 5:17pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/15 "2004-07-23T17:17:04Z")
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.
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### Author:  [@Mtgman](https://boards.straightdope.com/u/Mtgman)
#### Post date: [July 23, 2004, 7:18pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/16 "2004-07-23T19:18:34Z")
> [@erislover](#):
>
> 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.
_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](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm)
> [@](#):
>
> Original Intent & Judicial Review
> The Constitution does not expressly provide for judicial review. What should be made of this fact? Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. A third possibility is that the framers didn’t think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers.
>
> Only 11 of the 55 delegates to the Constitutional Convention, according to Madison’s notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation. It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.
Enjoy,
Steven
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### Author:  [@Mtgman](https://boards.straightdope.com/u/Mtgman)
#### Post date: [July 23, 2004, 7:24pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/17 "2004-07-23T19:24:07Z")
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](http://caselaw.lp.findlaw.com/data/constitution/article03/13.html).
> [@](#):
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> Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application. 576 Although it was first asserted in Marbury v. Madison 577 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters, 578 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. 579
> Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, 580 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves. 581 In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, 582 and in other debates questions of constitutionality and of judicial review were prominent. 583 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from these provisions, they do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.
Enjoy,
Steven
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### Author:  [@DanBlather](https://boards.straightdope.com/u/DanBlather)
#### Post date: [July 23, 2004, 7:41pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/18 "2004-07-23T19:41:38Z")
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?
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [July 23, 2004, 8:40pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/19 "2004-07-23T20:40:01Z")
**erislover** is right, though, **Mgtman** , that _Marbury_ is surprisingly poorly reasoned and ill-founded in the constitutional text.
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### Author:  [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)
#### Post date: [July 23, 2004, 10:53pm UTC](https://boards.straightdope.com/t/can-congress-outlaw-the-courts/256394/20 "2004-07-23T22:53:30Z")
> [@jebert](#):
>
> 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.
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.
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