The No Kings Act: An Unconstitutional Ploy to Make Congress Sovereign Over SCOTUS

The Supreme Court is under siege from Democratic politicians and left-leaning influencers who disdain its conservative majority. They attempt to discredit and weaken the Court through spurious attacks on its “legitimacy” and the integrity of individual justices.^[1]See here, here, and here.

They also offer “reform” proposals aimed at intimidating the justices and ultimately shifting the Court’s ideological balance back to the left. These proposals are mainly political grandstanding now, but they could become real if Democrats win the presidency and control of both houses of Congress in the 2024 elections. Senate Majority Leader Chuck Schumer vows that going after the Court, which he speciously describes as “a morass, both ethically and substantively,” will be “a very big priority.”

The most ominous proposal now on the table is S. 4973, entitled the “No Kings Act,” which Schumer recently introduced on behalf of himself and many other Senate Democrats. The bill purports to overrule the Supreme Court’s decision in Trump v. United States, which held that the Constitution grants presidents broad immunity from criminal prosecution. It claims to “clarify” that presidents have no immunity from criminal prosecution unless Congress so provides.^[2]Sections 2-3 of the bill. It also precludes vice presidential immunity, although that was not addressed in the Trump decision.  This directly contradicts the Court’s holding in the Trump decision. The bill goes on to prohibit the Supreme Court from reviewing its constitutionality and limits judicial review by lower federal courts.^[3]Section 4.

The Trump immunity decision is deeply flawed; proposing a constitutional amendment to overcome it, as President Biden did, would be justified on the merits although extremely difficult to achieve. However, Schumer’s attempt to reverse the decision by legislation is clearly unconstitutional.

Section 1 of Article III of the Constitution vests the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States.” Section 3 grants the Supreme Court original jurisdiction in certain cases and provides that in all other cases “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.”

In his landmark 1803 opinion in Marbury v. Madison, Chief Justice John Marshall famously declared: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Ever since, it has been widely accepted that the Supreme Court is the ultimate arbiter of the meaning of the Constitution and federal statutes.

It is (or should be) clear beyond reasonable doubt that, under Article III and the most basic separation of powers principles, Congress lacks appellate jurisdiction over the Supreme Court. If Congress disagrees with the Court’s interpretation of a federal statute, it can amend that law to embody its preferred interpretation; however, it cannot change the Court’s decision. Likewise, Congress cannot overrule or change a Supreme Court decision interpreting the Constitution—as the Trump decision does. Its only recourse is a constitutional amendment.

In controverting these bedrock principles, S. 4973 disingenuously invokes the clause in Article III, section 3, quoted above, which authorizes Congress to enact exceptions to the Supreme Court’s appellate jurisdiction. There is little case law interpreting this so-called “exceptions” or “jurisdiction stripping” clause, and academics differ on its precise scope.^[4]See here for general background. However, nothing in its text or history remotely suggests that it authorizes Congress to reverse existing Supreme Court precedents. Indeed, the leading cases interpreting the clause hold that Congress cannot use it to undermine judicial independence by instructing the Supreme Court or other federal courts how to decide cases.^[5]In an apparent throwaway line, the bill also claims, even more risibly, to be an exercise of congressional power under the Necessary and Proper Clause to determine which persons are subject to … Continue reading

Unsurprisingly, S. 4973 has been roundly criticized from  the ideological right^[6]See, e.g., here, here, here, and here. and from some on the left.^[7]See, e.g., here and here. The bill is so blatantly unconstitutional that, hopefully, even Democratic majorities in the next Congress would hesitate to pass it, or if they did, a Democratic president who respects the oath of office would refuse to sign it into law.

If the bill did somehow become law, it wouldn’t survive for long. Whatever the exceptions clause means, it’s hard to imagine that it could legitimately be used, as here, for the sole and transparent purpose of shielding an obviously unconstitutional law from Supreme Court scrutiny. But this is probably a moot point. Lower federal courts would surely strike the law down before it could reach the high court since they are, of course, bound to follow and apply the Supreme Court’s precedent in Trump.  

Perhaps the bill’s most worrisome aspect is that it illustrates how far even supposedly mainstream liberals are willing to go in their efforts to undermine the independence and integrity of the Supreme Court. And if they think they can nullify a constitutional law decision by legislation, why stop with the Trump case? They would have even more political incentive to attempt to legislate away the Dobbs decision, which overruled Roe v. Wade, and any number of other decisions reviled by the left.

The fact that Schumer and so many of his Democratic colleagues proudly embrace something as radical and outrageous as S. 4973 may also forecast that they are finally ready to launch their ultimate weapon against SCOTUS: court-packing. This is not only an insidious threat to judicial independence but the most dangerous as well since it actually can be accomplished by legislation.

Inevitably, what goes around comes around in the shameful, decades-long efforts by both parties to politicize the federal judiciary.^[8]See here and here. If Democrats are willing to push these terrible “reform” proposals, Republicans will no doubt follow suit when they regain power. The victims of the ever-escalating attacks on judicial independence are not just the courts but, ultimately, the American people.