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Congress Can Defeat Judicial Overreach

On today's X-Date: Joe Manchin's Pipeline Payoff gets immunized from
judicial review, as does what could have been a deregulation ratchet.

 

Francis Chung/Politico via AP Images

By Ryan Cooper

**** The debt ceiling deal
<[link removed]>
is making its way through Congress. After a House Rules Committee vote
on Tuesday, it is scheduled for a full vote in the House on Wednesday.
It will certainly need some Democratic support, but expectations are
that it will make it through.

My colleague David Dayen has already outlined the details of the deal
here
<[link removed]>.
So I'd like to dive into one small detail: its restrictions on
judicial review. It turns out that when the politics line up, Congress
has powerful options to restrict judicial overreach.

I have previously argued against the very concept
<[link removed]> of
judicial review altogether, but there are many other options to rein in
the Court short of that step. One of them is controlling or removing the
jurisdiction on specific legislation, in keeping with the
Constitution's stipulation
<[link removed]> that the
Court has final appellate jurisdiction but "with such Exceptions, and
under such Regulations as the Congress shall make."

The debt ceiling bargain has two instances in which judicial review
powers are stripped. The first has to do with administrative PAYGO
rules, which put into law a principle previously only in executive
orders. It requires that every new agency regulation that costs money
would have to be offset by the agency eliminating another regulation of
equal cost. That would create a one-way ratchet for deregulation.

But according to the language of the bill, the Office of Management and
Budget can waive these PAYGO rules in fairly broad fashion, and if
Republicans or corporations don't like it, there's not much they can
do. That's because Section 267 reads: "No determination, finding,
action, or omission under this title shall be subject to judicial
review." This insulates OMB from court reversals. So a potentially scary
addition was neutered, by stripping judicial review from it.

**Read all of our debt ceiling coverage here**
<[link removed]>

Click to Support The American Prospect <[link removed]>

The second instance is just as important. The debt ceiling deal grants
Sen. Joe Manchin (D-WV) expedited approval for his beloved Mountain
Valley Pipeline, directing the secretary of the Army to "issue all
permits or verifications necessary" within 21 days to get construction
and eventual operation started. It then protects that directive by
stipulating "no court shall have jurisdiction to review any action
taken" by basically any agency that might be involved in the approval
process, "including any lawsuit pending in a court as of the date of
enactment of this section."

Then that jurisdiction-stripping measure is further protected by
granting the D.C. Circuit Court "original and exclusive jurisdiction
over any claim alleging the invalidity of this section or that an action
is beyond the scope of authority conferred by this section." Readers
won't be surprised to learn that the Mountain Valley Pipeline has
faced major legal troubles, particularly on the Fourth Circuit
<[link removed]>.
Even the Supreme Court recently ruled against its developers. But it's
had a comparatively better time before the D.C. Circuit.

In other words, Congress said that nobody gets to hold up this pipeline
in court, and if you disagree, take it up with the most pro-pipeline
bench in the country.

It's extremely depressing that the approval of an objectively horrible
pipeline gets end runs around judicial power. It's mildly better that
a pretty terrible regulatory burden was also extinguished through the
same maneuver. And it's actually really good that Congress is
relearning that it has options to fight judicial tyranny. The bipartisan
infrastructure law
<[link removed]> also
included jurisdiction stripping, giving the D.C. Circuit exclusive
review of executive branch decisions on broadband funding, and limiting
any reversal of them unless they involved official corruption or fraud.

This brings us closer to our constitutional past. As law professor
Stephen Vladeck writes in his excellent new book The Shadow Docket
<[link removed]>,
Congress has exercised this power over jurisdiction before, and in much
more serious cases.

[link removed]

Probably the most relevant example was the 1868 case Ex parte McCardle
<[link removed]>. This had to do
with a Mississippi journalist, William H. McCardle, who published
inflammatory articles attacking the post-Civil War government, and was
arrested for violating the Reconstruction Acts. He filed a habeas corpus
petition, which made it before the Supreme Court. When oral arguments
seemed to suggest the justices were sympathetic to McCardle, Radical
Republicans in Congress, fearing the Court would overturn its whole
Reconstruction system, quickly passed a law stripping the Court's
jurisdiction from the case. President Andrew Johnson vetoed the law but
was overridden. The Court then unanimously voted down McCardle's
appeal, admitting it had no authority to decide.

This is more or less how the constitutional separation of powers is
supposed to work. Congress, the president, and the courts all check and
balance each other, but with Congress predominating in the last
analysis. Congress is the first branch mentioned in the Constitution,
and it is granted by far the most formal authority. It sets up and funds
the court system through statute, and can override a presidential veto
with sufficient unanimity.

The framers of the Constitution assumed that members of Congress would
instinctively guard their institutional power. The "great security
against a gradual concentration of the several powers in the same
department, consists in giving to those who administer each department,
the necessary constitutional means, and personal motives, to resist
encroachments of the others," wrote James Madison in Federalist No. 51
<[link removed]>. Thus
the judiciary "will always be the least dangerous to the political
rights of the constitution," wrote Alexander Hamilton in Federalist No.
78 <[link removed]>,
because it has neither the ability to write legislation nor control of
the military.

Instead, as America has developed disciplined political parties, one of
which is pathologically timid and the other totally deranged, Congress
has all but ceased to function. Thanks in part to the checks and
balances between its chambers, it can barely pass a budget, let alone
mount a content-neutral defense of its prerogatives. As a result, power
has flowed to the Supreme Court-many of whose decisions turn on
tendentious statutory misinterpretations
<[link removed]> that
could theoretically be fixed with a new law but in practice hardly ever
are.

Still, it's worth emphasizing that Congress can and should return to
the center of American government. Right now, it may take a bizarre set
of circumstances like the debt ceiling hostage negotiation happening in
a closely divided Senate to get any restrictions on Court power. But
Democrats may hold full control of the government again someday. If and
when they do, they should put the Court back in its proper place.

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