Constitutional Law
Oct. 13, 2004
Congress Has No Authority to Preclude Judicial Review
Forum Column - By Erwin Chemerinsky - Can Congress enact an unconstitutional law and preclude federal courts, including the Supreme Court, from reviewing its constitutionality?
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Can Congress enact an unconstitutional law and preclude federal courts, including the Supreme Court, from reviewing its constitutionality?
The answer, of course, is that such congressional action would conflict with the Supreme Court's declaration long ago in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), that "it is the province and duty of the judicial department to say what the law is." Judicial review of the constitutionality of federal legislation is not an incidental aspect of the American system of government. As Chief Justice John Marshall explained in Marbury, the limits of the Constitution have no meaning without judicial enforcement.
However, twice in recent months, the U.S. House of Representatives has passed bills to preclude Supreme Court review of controversial federal statutes. In September, the House passed HR2028, which provides that neither the Supreme Court nor any federal court shall have jurisdiction to hear a constitutional challenge to the words "under God" in the Pledge of Allegiance. In June, the House passed a similar bill, HR3313, which would prevent the Supreme Court or any federal court from ruling on the constitutionality of the Defense of Marriage Act, a federal law that says that no state has to recognize a same-sex marriage from another state.
Whether either or both of these bills will pass the Senate and be signed into law is, of course, uncertain. At this stage, there is no indication that the Senate is poised to enact either in this session of Congress.
But under Senate rules, either or both could be added by any senator as a rider to another bill. Also, these bills doubtless will resurface in the next session of Congress because each was approved by a solid majority in the House of Representatives.
That the bills have been approved by even one house of Congress is remarkable and frightening. By approving this legislation, the House is unequivocally claiming that Congress has the authority to enact an unconstitutional law and preclude the federal courts, including the Supreme Court, from ruling on its constitutionality.
Although it is uncertain, and even unlikely, that the Supreme Court would invalidate the Defense of Marriage Act or "under God" in the Pledge of Allegiance, the Republican-controlled House wants to take no chances. The court ducked the issue of the constitutionality of the pledge by dismissing Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301 (2004), on standing grounds. A challenge to the Defense of Marriage Act is not pending in the federal courts.
To ensure that neither law is struck down, Republicans try to prevent the federal courts from hearing the challenges. The jurisdiction-stripping bills have one goal: to preclude the possibility of a federal court coming to a conclusion that the Republican-controlled House dislikes.
Never in American history has Congress enacted a law precluding the Supreme Court from hearing a challenge to the constitutionality of a federal statute. Such a restriction strikes at the very heart of our constitutional system, which relies on the courts to interpret and enforce the Constitution.
But not for House Republicans. They invoke as authority a provision in Article III, Section 2 of the Constitution that says that the Supreme Court may exercise appellate jurisdiction subject to such "exceptions and regulations" as Congress shall make. They contend that Congress can create an "exception" to the Supreme Court's jurisdiction to hear challenges to the pledge or to the Defense of Marriage Act.
This argument has many flaws. The power to create exceptions to the Supreme Court's jurisdiction, like all congressional powers, must be used in a manner consistent with the Constitution.
Congress has the power to regulate interstate commerce, but it certainly could not use the power to license newspapers or to prevent racial minorities from engaging in commerce among the states. Likewise, Congress cannot use its power to create exceptions to Supreme Court jurisdiction in a manner that violates separation of powers. Precluding judicial review of an allegedly unconstitutional statute undermines the essential functions of the Supreme Court. Under the approach taken by the House Republicans, there would be no limit on Congress' ability to enact blatantly unconstitutional laws and completely immunize them from judicial review.
The best understanding of the Exceptions and Regulations Clause is that it was meant to give Congress the power to restrict the Supreme Court's review of fact-finding done by juries. Some were concerned that, in exercising judicial review, the court might not be sufficiently deferential to jury decisions. In fact, the Seventh Amendment, ratified four years after the Constitution was approved, has a provision expressly preventing appellate courts from re-examining facts found by juries.
Those who support Congress' power to restrict jurisdiction point to the Supreme Court's decision a century and a half ago in Ex Parte McCardle, 74 U.S. 506 (1868), as support. But a close reading of McCardle shows that it does not authorize Congress to preclude Supreme Court review of the constitutionality of a federal law. McCardle was the editor of a Mississippi newspaper who wrote editorials opposing Reconstruction, and he was jailed by the military authority. He filed a habeas corpus petition under an 1867 law that authorized federal courts to hear habeas petitions from both federal and state prisoners. The Judiciary Act of 1789 authorized just federal prisoners to bring habeas petitions to federal court. McCardle, a federal prisoner, could have filed under both of these statutes, but he sought habeas only under the more recent law.
While McCardle's case was pending in the Supreme Court, Congress repealed the 1867 habeas statute with the clear goal of getting McCardle's habeas petition off the Supreme Court's docket. Congress was deeply concerned that the Supreme Court might use the case as a basis for invalidating key aspects of Reconstruction. After Congress repealed the 1867 habeas statute, the Supreme Court dismissed McCardle's habeas petition, saying that it lacked jurisdiction to hear it. The court said that its jurisdiction was "conferred 'with such exceptions and under such regulations as Congress shall make.'"
But those who invoke McCardle to support Congress' power to strip jurisdiction from the Supreme Court ignore the last paragraph of the court's opinion. The court stressed that Congress was not precluding all Supreme Court review; Congress had repealed only one of two statutes that authorized McCardle to file a habeas corpus petition in federal court. McCardle simply could refile the same petition based on the 1789 law, which remained valid.
The court concluded its opinion by declaring, "Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised."
Indeed, shortly after McCardle was dismissed, the court in Ex Parte Yerger, 75 U.S. 85 (1868), affirmed its jurisdiction to hear habeas petitions from federal prisoners held by the Reconstruction authority under the 1789 Judiciary Act. The federal government immediately released Yerger from custody so as to make his challenge to Reconstruction moot.
In other words, McCardle simply stands for the unremarkable proposition that, if two federal statutes authorize federal court jurisdiction, Congress can repeal one of them. In no way does McCardle support the recently passed House bills that would preclude all federal-court jurisdiction to hear constitutional challenges to federal legislation.
House Republicans obviously believe that either people won't pay attention to something as seemingly obscure as Congress restricting courts' jurisdiction or that they will applaud actions to make sure that "under God" stays in the pledge and that same-sex marriages don't have to be recognized. But if Congress can strip jurisdiction in this way, Congress could adopt laws prohibiting criticism of the government or persecuting a minority group and add provisions denying any federal court from reviewing their constitutionality.
For 200 years, the Supreme Court has had the power to consider the constitutionality of literally every law in this country. The power of Congress to adopt an unconstitutional law and immunize it from judicial review is truly chilling and must not be passed by the Senate or signed by the president.
Erwin Chemerinsky is the Alston & Bird Professor of Law at Duke Law School.
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