# Could congress prevent SCOTUS from invalidating laws? **URL:** \ **Category:** Politics & Elections\ **Created:** [October 16, 2020, 5:56pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130 "2020-10-16T17:56:25Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [October 16, 2020, 5:56pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/1 "2020-10-16T17:56:25Z")
Here is a clause in the constitution concerning SCOTUS. The previous sentence refers to cases where the court has original jurisdiction. > [@](#): > > In all the other Cases before mentioned, the supreme Court shall have appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. My question is could congress simply remove the court’s jurisdiction over acts of congress? I point out that the court’s right to do so is somewhat watery. As far as I can tell it rests solely on the phrase “In Pursuance thereof” in thesupremacy clause: > [@](#): > > This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [October 16, 2020, 6:04pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/2 "2020-10-16T18:04:01Z")
Sure, they could pass a Constitutional amendment. Otherwise, i think not. However, note that quite a few laws are invalidated due to some part or wording and that a rewrite could make them kosher. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [October 16, 2020, 6:07pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/3 "2020-10-16T18:07:32Z")
[Yes, they can do so](https://en.wikipedia.org/wiki/Jurisdiction_stripping), and have done so in some cases. A Constitutional amendment is not necessarily required. There are specifics (Congress can’t strip the courts of jurisdiction over things specifically mentioned in the Constitution, and some other tricky bits). But [it’s been done](https://en.wikipedia.org/wiki/Ex_parte_McCardle), and the court accepted the limit. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [October 16, 2020, 6:47pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/4 "2020-10-16T18:47:03Z")
Not only could this be done, but I’ve thought this has more viability than stacking the Courts–albeit with the same obvious backlash where the Republicans will do it back and thus invalidate the Supreme Court completely. ---
**Author:** ![Red\_Wiggler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/red_wiggler/32/13190_2.png) [@Red\_Wiggler](https://boards.straightdope.com/u/Red_Wiggler)\ **Post date:** [October 16, 2020, 8:28pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/5 "2020-10-16T20:28:40Z")
Well crafted progressive legislation won’t even reach the Supreme Court. For example, raising tax rates on corporations and high income earners. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 16, 2020, 8:55pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/6 "2020-10-16T20:55:22Z")
> [@Hari\_Seldon](#): > > My question is could congress simply remove the court’s jurisdiction over acts of congress? There are limits to the “exceptions” Congress can make to the Court’s jurisdiction. Specifically, removing all appellate jurisdiction in cases of law and fact under the clause you mentioned still allows the Court to invalidate federal law under its original jurisdiction. A state might, for example, bring suit against the United States, _parens patriae_ or in its own right. The Court then has jurisdiction to hear the case, and it is possible that the Court would strike down the law. ~Max ---
**Author:** ![FlikTheBlue](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fliktheblue/32/10972_2.png) [@FlikTheBlue](https://boards.straightdope.com/u/FlikTheBlue)\ **Post date:** [October 16, 2020, 9:05pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/7 "2020-10-16T21:05:33Z")
> [@Max\_S](#): > > A state might, for example, bring suit against the United States, _parens patriae_ or in its own right. The Court then has jurisdiction to hear the case, and it is possible that the Court would strike down the law. Yes. My guess is that in the case of liberal legislation, the challenges would mostly be from the attorneys general of conservative states. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [October 17, 2020, 1:09am UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/8 "2020-10-17T01:09:11Z")
> [@Red\_Wiggler](#): > > Well crafted progressive legislation won’t even reach the Supreme Court. For example, raising tax rates on corporations and high income earners Right. Corporations and high income earners would [never](https://en.wikipedia.org/wiki/Pollock_v._Farmers%27_Loan_%26_Trust_Co.) dream up a means to challenge a tax law in court. Right? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [October 17, 2020, 7:14am UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/9 "2020-10-17T07:14:07Z")
At the end of the day the Supreme Court has no enforcement mechanism. If the rest of the government chooses to ignore a Supreme Court ruling there is nothing they can do about it. Famously (and almost certainly apocryphal) president Andrew Jackson said, “John Marshall has made his decision; now let him enforce it!” So many “norms” have been broken by republicans what happens if they decide to not listen to the Supreme Court? What could they do about it? ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [October 17, 2020, 11:52am UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/10 "2020-10-17T11:52:00Z")
Quoting a snip I posted in another thread: > [@Starting over, the NEW new form of government thread](https://boards.straightdope.com/t/starting-over-the-new-new-form-of-government-thread/922154/118): > > One of the big challenges all Americans are wrestling with right now is that our system was _not_ designed against the possibility of nihilist vandals at the helm _who are supported by a substantial fraction of the political class and the populace._ > > Our system (checks and balances, impeachment, and all the rest) _was_ designed to stop a small fraction of “bad apples” _who were seen as bad apples by the rest of the political class and the populace._ > > As I said way upthread, trying to alter the rules of the game while the current rules are already being ignored with not only impunity, but to widespread applause, is a sterile academic exercise at best and a foolish direct route to enshrining tyranny at worst. > > Witness countless examples in the history of the last ~1000 years, starting perhaps with Cromwell and leading up to current Duterte & Erdogan & perhaps Trump, I don’t believe a democratic system _can_ be built that withstands simultaneous assault by the leadership and the followership. ---
**Author:** ![Red\_Wiggler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/red_wiggler/32/13190_2.png) [@Red\_Wiggler](https://boards.straightdope.com/u/Red_Wiggler)\ **Post date:** [October 17, 2020, 1:34pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/11 "2020-10-17T13:34:49Z")
If we have to go back 125 years to a time before income taxes were enacted, then I feel pretty confident that this court won’t risk it with a Dem admin holding the threat of adding new judges over their heads. Other legislation the Dems could pass is lowering the age of Medicare to 60, an action that would be enormously popular with about 20 million voters. Good luck to an SC blocking that. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 17, 2020, 5:24pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/12 "2020-10-17T17:24:02Z")
> [@Hari\_Seldon](#): > > My question is could congress simply remove the court’s jurisdiction over acts of congress? > > I point out that the court’s right to do so is somewhat watery. As far as I can tell it rests solely on the phrase “In Pursuance thereof” in the supremacy clause: > > > [@](#): > > > > This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; I would say no, because the function of judicial review is the core of the judicial power. The Congress can make particular exceptions by subject matter, as in _[McCardle’s case](https://en.wikipedia.org/wiki/Ex_parte_McCardle)_, but to take away the Court’s power of judicial review would gut the court of its core constitutional function. The supremacy clause is important, but the starting point is the opening words of [Article III](https://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution): > [@](#): > > **Article III, s. 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. > > **Article III, s. 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… It is that delineation of the judicial power which is the source of the Court’s power of judicial review, because a question whether a law is consistent with the Constitution is a case “arising under this Constitution, [and] the Laws of the United States”. That is the core function of the judiciary, just like enacting laws is the core function of the Congress, and taking “care that the laws be faithfully executed” is one of the core duties of the President. One branch can’t take away the core functions of another branch. The Supremacy clause ([Article VI](https://en.wikipedia.org/wiki/Article_Six_of_the_United_States_Constitution)) is important to that analysis, because it clearly states that the Constitution itself is a law, and the supreme law, at that. That was the key foundational distinction between the Constitution and the Articles of Confederation: the Articles were a treaty alliance between sovereign states, but the Constitution was the result of the sovereign law-making function of the people of the United States. That was why Madison in particular insisted on ratification of the Constitution by individual state conventions ([Article VII](https://en.wikipedia.org/wiki/Article_Seven_of_the_United_States_Constitution)), rather than by the state governments. The Constitution drew its authority directly from the people, unlike the Articles, which drew their authority from the state governments. The Constitution is a law, not a political agreement. And that leads to the core of Chief Justice Marshall’s statement in _[Marbury v Madison](https://en.wikipedia.org/wiki/Marbury_v._Madison)_: > [@](#): > > It is emphatically the province and duty of the Judicial Department to say what the law is. What he is saying is that between the different types of laws listed in Article III and in the supremacy clause, it is the core function of the courts to determine how those laws relate to each other, and in case of conflict, which one governs. He concluded that in case of a conflict between the Constitution itself, and a law “made in pursuance of” the Constitution, the Constitution had to govern. Otherwise, laws “made in pursuance” of the Constitution would be exceeding the authority granted by the people to the federal government in the Constitution. It’s sometimes said that Marshall CJ just made judicial review up out of whole cloth, and there’s no basis for judicial review in the Constitution, but it is there, in those provisions. And, he didn’t make it up. It was foreseen by the drafters of the Constitution. For example, in [Federalist 78](https://en.wikipedia.org/wiki/Federalist_No._78), Alexander Hamilton clearly states that judicial review is implicit in the judicial branch: > [@](#): > > The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. **Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.** Without this, all the reservations of particular rights or privileges would amount to nothing. > > Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. > > There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. > … > Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that **where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former**. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. Since the it is the core function of the courts to determine the relationship between the Constitution and laws passed by the Congress, an attempt to strip the Supreme Court and the federal courts of all jurisdiction to do that would be unconstitutional, in my opinion. Now, could the Congress strip the Supreme Court of that power by means of reducing its appellate authority, but leave the inferior courts the power of judicial review? After all, in that model, the “judicial power” under Article III would still be able to review the constitutionality of laws. Maybe. But my bet would be that the Supreme Court would rule that since the judicial power is vested in **both** the Supreme Court and inferior federal courts, there would be limitations on stripping the Supreme Court of judicial review in general. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [October 17, 2020, 8:02pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/13 "2020-10-17T20:02:34Z")
You may well be right, but Marbury v. Madison was seen as a giant power by the court at the time. Hard to know what an (honest) originalist would make of all this. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 17, 2020, 8:04pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/14 "2020-10-17T20:04:21Z")
Would an originalist deny Hamilton’s authority as to what the original intent was? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 17, 2020, 8:09pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/15 "2020-10-17T20:09:53Z")
As well, before Marshall was even appointed to the Court, all six justices of the Court had individually held that a federal law was unconstitutional: the _Invalid Pensions Act_. They issued those decisions on circuit, not collectively as the Supreme Court, but that’s a a series of precedents from 1792, a decade before _Marbury_, and includes one decision from Chief Justice Jay. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [October 20, 2020, 5:14pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/16 "2020-10-20T17:14:38Z")
I did not know that. So it wasn’t a real departure. Ignorance fought. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 20, 2020, 10:20pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/17 "2020-10-20T22:20:19Z")
You might be interested in Professor Treanor’s article, “Judicial Review before Marbury and Madison”. Treanor did an extensive study of court deicisions in both state and federal courts prior to the Marbury case, and found that there were numerous examples of the courts asserting that they could hold statutes unconstitutional, under state and federal constitutions. He deals with the particular case of the _Invalid Pensions Act_ at pp. 533-538, where all six justices of the Supreme Court, prior to Marshall’s appointment, took the view that the Act was unconstitutional because it infringed the independence of the judiciary and its separation from the executive, protected by Article III. > **[treanor.pdf](https://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf)** > > 652.57 KB ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 20, 2020, 10:58pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/18 "2020-10-20T22:58:36Z")
Here’s Treanor’s lead-in to his discussion of _Hayburn’s Case_, which dealt with the _Invalid Pensions Act_: > [@](#): > > **_Hayburn’s Case_ [1792] was a landmark in the history of judicial review and was recognized as such at the time**. In 1800, when in _Cooper v. Telfair_ the Supreme Court was considering a challenge to a state statute on state constitutional grounds, Justice Chase in the course of oral argument observed that “there is no adjudication of the Supreme Court itself upon the point” whether a congressional statute could be held unconstitutional, but also noted, **“It is . . . a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the Circuits, decided, that the Supreme Court can declare an act of congress to be unconstitutional**. . . .” He was referring to _Hayburn’s Case_, the first case in which Supreme Court Justices concluded that a congressional statute was unconstitutional. That was before Marshall was appointed to the Court in 1801, and _Marbury_ was decided in 1803. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [October 21, 2020, 4:05pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/19 "2020-10-21T16:05:49Z")
This is all very interesting and I did not know any of it. When I took American history in HS, Marbury v. Madison was treated as a shot out of the blue. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 21, 2020, 9:14pm UTC](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/20 "2020-10-21T21:14:35Z")
My impression is that there’s been a lot more historical research being done, such as Treanor’s article, into the historical antecedents for the doctrine. Takes a while for that to filter into the high school curriculum. And of course, judicial review wasn’t inevitable; could imagine an alternate reality where the Supreme Court judges decline to exercise judicial review, for the reasons given by opponents of the doctrine, such as Thomas Jefferson, who was very hostile to it. Or, you might have had a situation where the federal courts would only use that power to strike down state laws that they thought intruded on the principles of the federal constitution, but were extremely deferential to a law passed by Congress. But, I think it’s clear that there were strong precedents for it prior to _Marbury_. The key points about _Marbury_ are that it established judicial review of federal statutes, and was a Supreme Court decision, deciding the point for the entire federal judiciary. Note that it took until _Dred Scott_ before the Supreme Court again held that a federal statute was unconstitutional, so they were in practice pretty deferential. [Next page](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130.md?page=2)