OK. Let’s assume that logic for a moment. What are its limitations? Does Congress have the authority to declare everything an “exception”, and completely subsume Article III?
Of course not. Section 1 says the judicial power is wielded by SCOTUS and the inferior courts. Congress could try to specify a particular inferior court for specific types of cases, (Such as the FISA court), but they can’t declare a type of case to fall completely outside of any court’s jurisdiction. That would violate Section 1, as well as most of the bill of rights.
All “cases” are under the purview of the judicial branch. So long as anyone can bring a “case” balancing legislative vs constitutional authority, judicial review arises as a constitutional power.
OK, let’s flip that argument. What are the limitations of judicial review? Can justices declare everything Congress passes to be unconstitutional? (You know there are wacky Republican “scholars” who would agree with them).
Of course not. Legislative power is wielded by Congress, not the courts. Many countries, for example the UK or the Netherlands, expressly forbid judicial review of legislation passed by parliament, exactly for this reason. Legislative power should belong to representatives elected by the people.
I don’t agree that it is at all clear that “cases” includes challenges to the validity of the law itself. Adding and removing laws is supposed to be a legislative process, and therefore a political one.
Can justices declare everything Congress passes to be unconstitutional?
Theoretically, yes. They don’t don’t this, but they could argue that Congress does not possess the power to enact the particular law relevant to the case before them. They are constitutionally empowered to answer each plaintiff’s petition; they could, theoretically, find in favor of every plaintiff.
The constitutional remedy for such an abuse is for Congress to pack the courts, impeach the justices, or amend their legislation into the constitution.
Legislative power should belong to representatives elected by the people.
Indeed. But we aren’t talking about a legislative power. If we are talking about judicial review, we are deciding whether or not the legislature is empowered to create a particular law.
In this case, they are claiming the power to prohibit the courts from answering my petition for redress of grievances. The constitution guarantees me that right; the legislature is not empowered to strip me of that right. They are not empowered to create such a law. The creation of such a law is not a legislative power; overturning that law is not an imposition on the powers of the legislature.
The constitution clearly doesn’t guarantee you an answer from the courts to redress every grievance. You might get a hearing to determine whether or not you have a basis to receive a trial, but that trial isn’t guaranteed.
Throwing out or modifying laws is absolutely a legislative action. It is formally recognized as such in many countries. That has not lead to the trampling of constitutions.
It’s not just Congress that can abuse their power. We have seen multiple judicial rulings in the last decade that are based on fraudulent constitutional interpretation.
The constitutional guarantee is to petition the government for redress of grievances. This bill purports to prohibit such petitions, by prohibiting any state court from hearing them.
Throwing out or modifying laws is absolutely a legislative action.
Not when Congress lacks the power to enact the purported “laws” in the first place. Which is what is alleged in every case of judicial review.
It’s not just Congress that can abuse their power.
Agreed. I’ve never claimed otherwise. In a previous comment, I specifically described an abusive court, as well as some of the constitutional provisions for reigning in such a court.
OK. Let’s assume that logic for a moment. What are its limitations? Does Congress have the authority to declare everything an “exception”, and completely subsume Article III?
Of course not. Section 1 says the judicial power is wielded by SCOTUS and the inferior courts. Congress could try to specify a particular inferior court for specific types of cases, (Such as the FISA court), but they can’t declare a type of case to fall completely outside of any court’s jurisdiction. That would violate Section 1, as well as most of the bill of rights.
All “cases” are under the purview of the judicial branch. So long as anyone can bring a “case” balancing legislative vs constitutional authority, judicial review arises as a constitutional power.
OK, let’s flip that argument. What are the limitations of judicial review? Can justices declare everything Congress passes to be unconstitutional? (You know there are wacky Republican “scholars” who would agree with them).
Of course not. Legislative power is wielded by Congress, not the courts. Many countries, for example the UK or the Netherlands, expressly forbid judicial review of legislation passed by parliament, exactly for this reason. Legislative power should belong to representatives elected by the people.
I don’t agree that it is at all clear that “cases” includes challenges to the validity of the law itself. Adding and removing laws is supposed to be a legislative process, and therefore a political one.
Theoretically, yes. They don’t don’t this, but they could argue that Congress does not possess the power to enact the particular law relevant to the case before them. They are constitutionally empowered to answer each plaintiff’s petition; they could, theoretically, find in favor of every plaintiff.
The constitutional remedy for such an abuse is for Congress to pack the courts, impeach the justices, or amend their legislation into the constitution.
Indeed. But we aren’t talking about a legislative power. If we are talking about judicial review, we are deciding whether or not the legislature is empowered to create a particular law.
In this case, they are claiming the power to prohibit the courts from answering my petition for redress of grievances. The constitution guarantees me that right; the legislature is not empowered to strip me of that right. They are not empowered to create such a law. The creation of such a law is not a legislative power; overturning that law is not an imposition on the powers of the legislature.
The constitution clearly doesn’t guarantee you an answer from the courts to redress every grievance. You might get a hearing to determine whether or not you have a basis to receive a trial, but that trial isn’t guaranteed.
Throwing out or modifying laws is absolutely a legislative action. It is formally recognized as such in many countries. That has not lead to the trampling of constitutions.
It’s not just Congress that can abuse their power. We have seen multiple judicial rulings in the last decade that are based on fraudulent constitutional interpretation.
The constitutional guarantee is to petition the government for redress of grievances. This bill purports to prohibit such petitions, by prohibiting any state court from hearing them.
Not when Congress lacks the power to enact the purported “laws” in the first place. Which is what is alleged in every case of judicial review.
Agreed. I’ve never claimed otherwise. In a previous comment, I specifically described an abusive court, as well as some of the constitutional provisions for reigning in such a court.