Let’s say that the legislative branch was crafting a piece of legislation and wanted to ensure that it could never be removed from the books by the judicial branch. One of them decides to put in a clause stating, roughly, the following:
The bill passes and becomes law (apparently, the executive branch isn’t enamored of the courts, either).
In due course, the legislative branch finds the bill unconstitutional. The police are ordered to arrest the judge.
What happens?
I’m no Constitutional scholar, but I’d think this clause in itself would be unconstitutional. The Constitution constructs a balance of power between the three branches of government, and one of the primary purposes of the judicial branch is to rule on the constitutionality of laws passed by the legislature. The legislature cannot unilaterally remove that power from the judiciary any more than the judiciary can say they no longer recognize the law-making power of the legislature and will henceforth follow laws of their own making.
I suspect that if this clause were included in the law, the executive branch would choose not to enforce it, knowing full well it would be overturned as unconstitutional. The executive branch would be bound to see that they are the next on the list to be stripped of their power by some law which gives the legislature the sole power to enforce a law and creating some legislative police force, circumventing the purpose of the executive branch.
First off, I think you mean Congress, the courts, and the President. Second, I think you mean the court finds the law unconstitutional. Third, that’s ridiculous. Congress does not have the authority to instruct the courts as to what is constitutional and what isn’t. The Constitution is the highest law of the land, and judges are obligated to rule by it. I suppose the courts could fall enough in the public’s esteem that the President could safely ignore the balance of powers and arrest the judge(s), but that would require a lot of people to ignore their oath to “uphold and defend the Constitution.” Call it a constitutional crisis or call it a coup, it would rip the Constitution to pieces and use the shreds for bumfodder.
Since the law has been declared unconstitutional, and thus voided, under what authority is the police being ordered to arrest?
If the police actually arrest the judge, you have the beginnings of a “John Marshall has made his decision, now let him enforce it”-type Constitutional crisis.
The reality is that the courts would correctly find the law unconstitutional as a violation of the separation of powers, and strike it down. It’s true that 170 years ago, there was an instance of the Supreme Court’s ruling being blatantly ignored. Today, it’s not a realistic possibility.
[tinfoil hat]
That said, it’s something that may be possible one day down the line. The federal courts do not have armed troops (except, perhaps, for the US Marshals). They do not enforce their rulings; they depend on the executive branch to faithfully execute the law. There may well come a time in which the judiciary arrogates to itself so much power, and imposes decisions that break so much with the people, that the result will be a wholesale refusal to comply. This would be a bad thing, since the entire basis of the nation’s three branches of government is their recognition of each other as separate and co-equal and authoritive in their own bailiwick.
This is an unlikely outcome.
[/tinfoil hat]
It’s an interesting question. The Supreme Court does indeed have the power to declare a law unconstitutional, and would simply declare that the clause prohibiting them from doing so is itself unconstitutional.
However, that power by the Supreme Court is not spelled out in the Constitution. Now there is certain ample legal precedent for it (starting when the Court asserted the right in Marbury vs. Madison), but, technically, it is not among the power enumerated for the Supreme Court.
Ultimately, though, the precedent will be enough to assert the right, and it would be a bad idea to simply ignore the Court’s ruling. To prevent the court from declaring a law unconstitutional would probably first require an amendment to the constitution, which no one would dare propose.
Hold on just a minute – Congress does have the power to regulate the jurisdiction of courts:
Clause 2. 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. **
I’m no expert on this, but my understanding is that Congress may limit if courts may judge on broad issues relating to their jurisdiction, but not simply cherry-pick particular laws that it does not wish the courts to hear arguments on. As I understand it, just how far such powers go is a constant dispute, there having been occasions where Congress has tried to limit judicial review and been denied, and other times having been successful.
This basically means that the power to limit judicial inquiry into the constitutionality of a law could be subject to challenge in courts as to whether Congress may have overstepped its constitutional bounds in drawing exceptions to a court’s jurisdiction, to say nothing of the constitutionality of the underlying law.
I note that there’s a much more in depth discussion of that part of the Constitution I just mentioned going on over here:
Interesting point, Ravenman, but while Congress certainly does have the power to limit the courts’ jurisdiction, there are limits and this is almost certainly one of them. One thing Congress cannot do is arrogate the powers of other branches unto itself – no branch of the government can do that. The ultimate question of constitutionality is one for the courts, not the legislature, and has been for close to 200 years, so a Congressional edict that prevented the courts from address that question would almost certainly be an improper arrogation of power.
–Cliffy
A way to do that is clearly specified in the original Constitution; it’s called amending the Constitution. But note that this is (purposely) a lot harder than simply passing a piece of legislation.
The legislature can go this route if they want, and are willing to get the other approvals needed to pass an amendment. But they can not short-cut the process by just declaring a particular law exempt from judicial review.
If they actually tried this, and then tried to have police arrest the judges, I expect the voters themselves would see the legislature stealing their rights, and would take action to correct this.
If the police arrested the judge, he’d have to be charged in a court of law and have the arrest ruled on by another judge. I think you’d have to arrest quite a few judges before it would stop, and then we’d be in a police state without a judiciary.
As has been said before, no can do. The judicial review of laws is a privlidge (responsibility?) given to the judicial branch. Congress could no more do this than pass a law that says the president can’t veto this law.
The only way that the legislative branch can get around the judicial branch this way is through one of two methods – neither of which provide instant gratification:
(1) The Senate can start rejecting every judge that comes down the line for nomination that has the position on the bill they don’t like.
(2) Pass a constitutional ammendment. The Supreme Court cannot rule a constitutional amendment unconstitutional.
Zev Steinhardt
But it can’t be a law until the President approves it. Section 7
A law passed by Congress such as that is probably unconstitutional as we understand the Constitution after Marbary v. Maddison. That case basically decided that the Supreme Court gets to decide which branch gets to decide certain questions. So, the Superem court decides which laws are constititutional, Congress decides the rules of Congress and who can qualify as a member, etc. But a law as you describe begs the question of whether Marbary v. Maddison is binding law. Most people don’t question Marbary, but technically its most important holding was dicta, meaning other things said by the court in passing not necessary to dispose of the dispute. But there is little chance of Marbary being overruled because the court itself is not going to do it and it would take some extraordinary events for someone else to interject themselves to make the decision instead of the court. Also, the Marbary rule - that the Supreme Court gets to decide - is probably the best rule and would have been what the framers had wanted if they thought about it.
The express power of Congress to regulate the courts is pretty large. Jesse Helms in the 80s threatened to amend the law to deprive the Supreme Court of the ability to hear appeals on abortion, or to allow such appeals directly to the supreme court. I don’t remember the details, but he was siezing on the legislative power over the judiciary. Its an interesting const. law footnote in history, although nothting came of it (obviously, you need a majority of both houses of Congress to pass such a law.
Judicial review wasn’t given by anyone; it was taken. The Court claimed it in Marbury v Madison and the other branches of government let them get away with it. All that is required to change this is the political will to do so. Derlith hasn’t posed a legal question but a political one. And he has even answered it for himself. Since his executive branch shares the political will to deny court review of the law then what happens when the judges try is that they get arrested. Supreme Court decisions are meaningless unless officials are willing to enforce them. Ask the Cherokee.
Not really true. Congress (in conjuction with the State Legislatures) is the only authority that can change the text of the constitution. It could, therefore, redefine the executive and judicial branches out of existence. Of course, we’d probably have a revolution on our hands :), but there is technically nothing stopping the Legislative Branch from doing this.
I once read an interesting variation of the OP. There’s nothing in the Constitution which dictates the manner in which the Supreme Court decides its decisions. Suppose Congress passed a law stating that the USSC can only declare a law unconstitutional by a majority of 6-3 or more. The Court declares in a 5-4 decision that the law is unconstitutional. Is it overturned or not?
The Constitution gives no such power to Congress to regulate the U.S. Supreme Court, Little Nemo.
It is overturned, because the Supreme Court rightly ignores the extraconstitutional limitation placed on it by the Congress, since the Constitution doesn’t say it has to listen.
Congress could no more do that than the SC could start passing out rulings saying, “Oh, and Congressman shall from this day forth signal their intent to vote on a bill by performing the Macarena.”