If the courts have to apply a federal law, they have to be able to make a determination of whether that law squares with their obligation under the Constitution.
Jason Willick, one of my fellow conservative columnists at the Washington Post, gives some much-needed scrutiny to Senate majority leader Charles Schumer’s (D., N.Y.) bill to undo the Supreme Court’s decision on presidential immunity.
Schumer, along with 23 other members of his caucus, wants to forbid courts hearing cases involving presidential conduct from considering the constitutional defense the Supreme Court recognized. The bill stipulates that “a court of the United States may not consider whether an alleged violation of the criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.” The bill further forbids the Supreme Court from ruling on the constitutionality of this provision, and directs the D.C. appeals court to give it the benefit of the doubt.
Willick calls the bill
a direct attack on justices’ ability to referee critical conflicts between the executive and legislative branches.
If Congress can do all this, it can, in effect, destroy “the judicial power” that the Constitution created. Congressional majorities could pass any number of laws infringing on due process, free speech or other constitutional rights and prevent those targeted from getting relief in court.
Considerations such as these would have made introducing a bill of this kind unthinkable for a Democrat 15 years ago. But not too long before that, some conservatives were attracted to the idea that Congress should make more use of its power to regulate the federal courts. I was one of them, in part because I think that the Constitution created a more limited judicial power than a lot of modern observers believe. I understood that this congressional power, like any power, could be abused. But I also thought it could help to keep the courts within their proper constitutional dimensions.
There are nonetheless structural limits to the use of the power that the courts should not have too much trouble enforcing — and they should preclude this bill from ever taking effect.
The Supreme Court in 1871 unanimously considered a similar bill unconstitutional because it attempted to direct the courts on how to decide cases: “We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.” In a 2016 case, the Court re-affirmed (albeit in a footnote) the key holding that Congress cannot regulate jurisdiction “in a way that requires a federal court to act unconstitutionally” or “that forces them to become active participants in violating the Constitution.”
My own gloss on this point: Even if Congress has the power to prevent the courts from remedying some constitutional violations, it cannot make the courts themselves commit any. If the courts have to apply a federal law, they have to be able to make a true determination of whether that law squares with their obligation under the higher law of the Constitution. If Marbury v. Madison stands for anything, it’s that limited proposition.
And it’s one that’s relatively easy to enforce because the law requires judicial action to have effect. If Schumer’s bill passed, the courts wouldn’t have to tell the other branches of the government that they can’t enforce the new law. They would just have to decline to cooperate with it, and that would make it a dead letter.