[[link removed]]

LIMIT SCOTUS: CONGRESS SHOULD PASS THE NO KINGS ACT  
[[link removed]]


 

Nikolas Bowie and Daphna Renan

New York Times
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ The Supreme Court has grown too powerful. Congress can and should
intervene to limit its overreach. _

,

 

The Supreme Court’s stunning decision this summer interpreting the
Constitution to give presidents broad immunity from federal criminal
laws is only the latest of its many opinions undermining Congress’s
efforts to protect constitutional democracy, from its 19th-century
invalidation of federal civil rights laws to its more recent curbing
of the Voting Rights Act.

Today even Americans who decry these opinions largely accept the idea
that the court should have the final say on what the Constitution
means. But this idea of judicial supremacy has long been challenged.
And the court’s immunity decision has set in motion an important
effort in Congress to reassert the power of the legislative branch to
reject the court’s interpretations of the Constitution and enact its
own.

“Make no mistake about it: We have a very strong argument that
Congress by statute can undo what the Supreme Court does,” Chuck
Schumer, the Senate majority leader, said
[[link removed]] recently
as he announced the introduction of the No Kings Act. The measure
[[link removed]] declares
that it is Congress’s constitutional judgment that no president is
immune from the criminal laws of the United States. It would strip the
Supreme Court of jurisdiction to declare the No Kings Act
unconstitutional. Any criminal actions against a president would be
left in the hands of the lower federal courts. And these courts would
be required to adopt a presumption that the No Kings Act is
constitutional.

It might seem unusual for Congress to instruct federal courts how to
interpret the Constitution. But the No Kings Act follows an admirable
tradition, dating back to the earliest years of the United States, in
which Congress has invoked its constitutional authority to ensure that
the fundamental law of our democracy is determined by the people’s
elected representatives rather than a handful of lifetime appointees
accountable to no one.

Should the No Kings Act pass, it would take its place among a
constellation of occasions when Congress protected its more democratic
interpretation of the Constitution.

As Congress considers the No Kings Act, it should not just embrace the
presumption that its laws are constitutional but also institutionalize
it.

The presumption that laws passed by Congress are constitutional is an
old idea, one the court itself once avowed
[[link removed]].
Even after 1803, when the court took the position in Marbury v.
Madison [[link removed]]_ _that it had
the power to disagree with Congress about the constitutionality of
federal legislation, the court spent the next five decades deferring
to Congress about the meaning of the Constitution. It was not until
1857 that the court attempted to override Congress’s constitutional
judgment in a case, Dred Scott v. Sandford
[[link removed]], that rejected
Congress’s power to limit the spread of slavery. The court’s claim
of supremacy inspired Abraham Lincoln to object
[[link removed]] that “if
the policy of the government, upon vital questions affecting the whole
people is to be irrevocably fixed by decisions of the Supreme
Court,” then “the people will have ceased to be their own
rulers.”

As the abolitionist Frederick Douglass explained, the presumption that
federal laws are constitutional reflects the fact that a bill becomes
law only after it has been debated and passed by Congress and
considered and signed by the president — all of whom, like judges,
take an oath to support the Constitution. As the national legislature
makes national policy, it necessarily determines what kinds of laws
are constitutionally appropriate. Some might disagree about the
constitutionality of a law, but regular elections give voters a say
among competing interpretations. Like many of his contemporaries,
Douglass argued that any judge who attempts to defy such a statute
should have “strong, irresistible and absolutely conclusive
[[link removed]]”
reasons for doing so.

In recent years, however, the court has seemed particularly
uninterested in forbearance, as five or six justices routinely upend
Congress’s longstanding interpretations of the Constitution. For
example, nearly 50 years after Congress and the president first
decided that the Voting Rights Act of 1965 was appropriate legislation
and after several more Congresses, presidents and Supreme Court
majorities agreed that the law was constitutional, five justices in
2013 invalidated [[link removed]] a crucial
provision of the law.

 

Over 100 years after Congress and the president first determined that
the integrity of federal elections required limiting the power of
corporations to overwhelm voters by spending from their coffers, five
justices in 2010 struck down Congress’s bipartisan campaign finance
reform, ruling that the government may not ban political spending by
corporations in candidate elections.

Some of the challenges facing our democracy today are a consequence of
the court disabling federal laws like those.

Though the court has declared itself supreme in constitutional
interpretation, the only thing the Constitution explicitly allows the
Supreme Court to do is exercise “the judicial power.” The
Constitution does not define this phrase. Nor does anything about the
phrase inherently give judges the power to review acts of Congress. In
Britain, the same phrase has long referred to judges’ power to
enforce, not second-guess, the laws passed by Parliament.

While the Constitution leaves the Supreme Court’s power ambiguous,
it empowers Congress to pass and the president to sign whatever laws
they think are “necessary and proper for carrying into execution”
all the powers vested by the Constitution in arms of government like
the Supreme Court. The Constitution’s text envisioned that Congress
might decide to create federal trial courts, empowering them to decide
certain cases and controversies. It also envisioned that Congress
might make “regulations” and “exceptions” to the Supreme
Court’s appellate jurisdiction.

Congress has done all of that. It has always determined — and at
times changed — the power of the Supreme Court and the lower federal
courts to decide constitutional questions.

The very first Congress set up detailed rules for federal courts,
telling them which cases they were allowed to decide, when and how
they could reach those decisions and what kinds of orders they were
allowed to issue. When Thomas Jefferson was worried that federal
courts were too partisan, he signed laws passed by Congress that
abolished circuit courts and effectively canceled the Supreme
Court’s next term.

When the Dred Scott court said that Congress could not ban the spread
of slavery in federal territories, Lincoln signed a law
[[link removed]] in 1862 that did just
that. When it looked as though the post-Civil War court would try to
nullify Congress’s Reconstruction-era attempt to create multiracial
democracy in the South, Congress enacted a law that stripped the court
of the power to review its statute. And when the court later refused
to enforce federal laws that promoted a more just political economy
and banned child labor, Congress and the president ultimately
compelled the court to change its mind by threatening to rein in the
court or increase the number of justices.

The purpose of such legislation was not to evade the Constitution. To
the contrary, it was to allow the people and their representatives to
enforce their interpretation of the Constitution against a small group
of judges who would defy it.

Previous justices understood that their power comes from Congress and
the public’s acceptance of how they exercise it. Shortly before
Robert H. Jackson joined the Supreme Court in 1941, he testified
before Congress to caution against judicial overreach. He observed
that it is “a responsibility of Congress to see that the court is an
instrumentality in the maintenance of a just and constitutional
government and that it does not become an instrumentality for the
defeat of constitutional government.”

Jackson was uneasy about the power the court had arrogated to itself
after the Civil War to declare an act of Congress unconstitutional.
Echoing Douglass, he wrote that if the court were to exercise such a
power, it should do so exclusively in a clear case — what Jackson
described as “a case in which the incompatibility of the statute
with the provisions of the Constitution was beyond honest dispute.”

The No Kings Act gestures at this standard with the requirement that
courts adopt it when they interpret Congress’s command to treat the
president as any other public official.

But as Congress debates the bill — and as future Congresses debate
other laws to promote the general welfare — Congress should go
further to institutionalize the idea that the court “not become an
instrumentality for the defeat of constitutional government.”

To do so, Congress could pass a statute declaring that when asked to
apply a federal law, a judge must do so unless the judge believes the
law is unconstitutional beyond honest dispute. To ensure there is no
honest dispute, Congress could require the judge to enforce the law
unless the Supreme Court certifies by a supermajority or unanimous
vote that there are no reasonable grounds to defend it. In this way,
Congress would require the justices to show, by their votes, that the
incompatibility of the law with the Constitution is_ _beyond honest
dispute.

There are other approaches to reconciling the role of the court with
representative democracy — from allowing Congress to override
specific constitutional rulings to eliminating constitutional review
of congressional legislation more generally. Many of these have been
proposed across American history and imposed by other Western
democracies like Canada and Britain. The No Kings Act would be no
panacea. But it would be a start.

Critics of these sorts of measures have charged Congress with
attempting to allow a tyrannical majority to ignore the Constitution.
They argue that the Supreme Court’s power to substitute its own
interpretation of the Constitution over that of a law passed by
Congress and signed by the president is essential for protecting
political and racial minorities.

 

But the history of the court’s power proves otherwise. The federal
laws that the court has invalidated are often precisely those intended
to protect political and racial minorities. By contrast, the court has
typically upheld federal laws that harm immigrants, Native Americans
or political dissidents. Overcoming such harmful laws has taken
politics, not judicial supremacy. Meanwhile, judicial supremacy grants
voters no realistic remedy for harmful Supreme Court decisions.

Importantly, statutes protecting federal law would preserve the
court’s ability to check state laws that defy federal constitutional
commitments, as the court did in Brown v. Board of Education when it
enforced a federal statute to find racial segregation by states
unconstitutional. While the court’s defiance of laws enacted by
Congress and the president puts an unelected tribunal at the top of
our democracy, its enforcement of federal law secures national
authority against state nullification.

For this reason, members of the civil rights bar, the labor movement,
Congress, the judiciary and the academy who have historically opposed
the court’s supremacy over Congress have often supported federal
laws that invite courts to review state actions.

The No Kings Act is well grounded in our constitutional tradition.
Rather than allow any president or justices to hold themselves above
the law, Congress should force them all to live by it.

_Nikolas Bowie
[[link removed]] and Daphna Renan
[[link removed]] are law professors at
Harvard and fellows at the Radcliffe Institute for Advanced Study.
They are the authors of the forthcoming book “Supremacy: How Rule by
the Court Replaced Government by the People.”_

_Get the best of the New York Times
[[link removed]] in your Inbox with a free
newsletter. Gain unlimited access to all of The Times with a digital
subscription [[link removed]]._

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]