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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsDid You Know Congress Has The Ability To Limit The Supreme Court?
Did You Know Congress Has The Ability To Limit The Supreme Court?
Neither did I until I read this!
By Susie Madrak July 5, 2022
Well! This certainly cheered me up, and you should go read the whole thing. Via Politico Magazine:
At least one founder was clear about the intent of Section 2. Hamilton wrote, From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.
Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the courts jurisdiction.
In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.
Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice. Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation limiting or prohibiting judicial review of its directives.
No less than the executive and legislative branches, the judiciary particularly, the Supreme Court is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.
more...
https://crooksandliars.com/2022/07/did-you-know-congress-has-ability-limit
spanone
(135,632 posts)Ferrets are Cool
(21,059 posts)But only if Congress and the president exercise their right to check its power.
Miguelito Loveless
(4,438 posts)Will not expand the court, nor regulate it.
WiVoter
(877 posts)I dont understand.
Hermit-The-Prog
(33,021 posts)President Biden has specifically called for making an exception to the Senate filibuster in order to reinstate the right taken from women by the overturning of Roe v. Wade. If the midterm elections make this possible, Joe ain't gonna veto the resulting bill.
The topic in the OP is relevant in that the current extreme court could promptly declare the bill unconstitutional unless Congress strips them of jurisdiction over it.
Lovie777
(11,986 posts)But at this point in time Democrats have two senators that work with the GQP.
gab13by13
(20,857 posts)Congress can take away SC clerks, I believe. Congress can do other things involving money that restricts the function of the court.
JudyM
(29,122 posts)Bayard
(21,801 posts)But can't find at the moment. Had never heard it before.
Manchin's and Sinema's arms would have to be twisted until they break, if need be. No excuses, no quarter.
samnsara
(17,570 posts)MarineCombatEngineer
(12,092 posts)There is no provision in the Constitution for Senators to be recalled.
In It to Win It
(8,139 posts)Congress has completely abdicated that responsibility. The reason that the Court is so powerful is because we have an absentee Congress.
If we do it, its risky. But Im willing to take the risk.
doc03
(35,143 posts)probably wouldn't blow up the damn filibuster anyway.
Beakybird
(3,329 posts)Manchin is someone who would switch parties if pressed against the wall. We have to make a lot of noise and keep the House, raise our margin in the Senate.
Manchin would switch parties in a heartbeat if pressured. Dont want that.
samsingh
(17,571 posts)will do what it takes if he has Congress behind him
duckworth969
(600 posts)Yeah, and if the Dems get control and muster up the courage, will they move to get that done, at least start that process?
One of the biggest problems with Congress is that they have ceded their will to act. They seem to be recalcitrant to exercise their power, unless you consider not doing anything as actually doing something of real consequence.
sop
(9,945 posts)There are no detailed instruction for how Congress "shall" regulate the SC, beyond stating "with such Exceptions, and under such Regulations as the Congress shall make." The use of "shall" instead of "must to impose a requirement is interesting; like many other things in the Constitution, shall" is ambiguous. And it doesn't state that Congress would need more than a simple majority to do regulate the Court (unless it's been mentioned elsewhere in the Constitution). Congress should exert its authority over the SC.
In It to Win It
(8,139 posts)under whatever rules Congress has for passing law. The "Regulations" would come in the form of legislation from Congress, and signed by the President. Congress gets to define the Court's appellate jurisdiction, which is just about every case the Court takes.
The legislation that would rein in the Court would pass like any other legislation, needing 60 votes in the senate and a simple majority in the House, and signed by the President. That's all.
sop
(9,945 posts)Obviously, the Framers wanted Congress to be able to "regulate" the Supreme Court via a simple majority. The filibuster isn't even mentioned in the Constitution; it's an (unconstitutional) Senate rule created for political reasons in the 19th Century.
On the other hand, taken to its logical conclusion, Section 2 of Article III might give the Congress unequal power over the judicial branch; the (current) Court would almost certainly disagree with this interpretation of Article III. I wonder how this dispute between the Court and Congress would be settled?
PJMcK
(21,916 posts)EXPAND THE COURT!
MAKE THE DISTRICT OF COLUMBIA AND PUERTO RICO STATES.
If we do those things, problems solved.
the votes to do this.
House of Roberts
(5,119 posts)It's funny that it seems like such a novel concept, but the court can't overrule Congress if Congress says it can't.
ProfessorPlum
(11,252 posts)and has been trying to educate us for a long long time
jaxexpat
(6,700 posts)I mean, what if the Congress were controlled by Democrats who wanted to stop a runaway rogue USSC? Obviously we need to send this back to the 18th century for review. Oh, I forgot. Our current USSC is already working in the 18th century. How convenient.
Novara
(5,753 posts)Congress WON'T do anything.
ramapo
(4,585 posts)Congress can also pass legislation that addresses/goes around SC decisions.
Take the EPA decision. Congress could pass an up-to-date, comprehensive and specific legislation giving EPA power.
The SC might be out of control but the real problem is a useless legislative branch.
blm
(112,919 posts)They arent qualified.
DownriverDem
(6,205 posts)Win more elections and give the Dems the votes. That's how it works.
Fiendish Thingy
(15,362 posts)Any case in which a state is involved would automatically have SCOTUS jurisdiction.
Want to sue Texas for their vigilante law? That would ultimately go to SCOTUS.
Circuit court overturns Missouris abortion ban? That ultimately goes to SCOTUS.
Wednesdays
(17,245 posts)a fight we're hardly guaranteed to win.
And do we really want to open that Pandora's Box? Who believes the Repukes won't retaliate in kind if we have a friendly SCOTUS but a Republican Congress?
LiberalLovinLug
(14,153 posts)No matter if WE use it or not?
The but but but what if they do it too argument is paralyzing. Similar to the filibuster. Sometimes its just more important to do what you can when you can, and deal with the fallen chips later
unblock
(51,974 posts)Congress could say the Supreme Court has no jurisdiction in cases involved in, abortion, for example.
But that would mean a future Supreme Court couldn't ever protect abortion rights, either.
But yeah, congress could even create a whole separate court system for matters of individual rights, somewhat similar to the way there's a separate court system for tax matters. But that's a very big change and I have to think there would be many unintended consequences....
TigressDem
(5,121 posts)At least FEDERAL elections.