Somebody is drunk with the power of owning both houses of congress and the White House.They've mistaken the difference between a law and a constitutional amendment. It flies directly in the face of the Constitutional checks and balances system, but what I find creepy is the fact that it was introduced at all, and that there are twenty-six representatives backing it. Shouldn't we expect that our Congress Critters have at least a minimum knowledge of the Constitution and history? Besides, even if it passes, SCOTUS would be forced to strike it down as unconstitutional.
I ... I can't wait for the pundits to sound off. Will O'Reilly and Scarborough call for a revocation of the Constitution? What's up on Air America with this?
Stripping the Court will take more backing than the two houses combined Stripping the Supreme Court will require more backing than merely the two houses of Congress. The Constitution will require amendment in order to strip judicial review. While the debate about the historical legitimacy of judicial review is an ongoing drama akin to 7th Heaven or watching the paint dry, Congress is well-exceeding its authority. Congress does not have the power to decide the Constitutionality of laws (cf Article 1, Sections 7 - 10). Gerald Gunther writes: Congress will lose this battle. It's merely a power grab, and although born of a dangerous and politically immature philosophy, it's largely harmless at worst insofar as the Constitution itself will most likely be strengthened by having survived yet another questionable attack against the general balance that has kept the American experiment moving forward. As long as the Constitution gives the Supreme Court the power it does (Art. III, Sec. 2, Clause 1), and as long as the Constitution stands as the supreme Law of the Land (Art. VI, Clause 2) no mere law will grant the Congress authority to override the courts in so direct a fashion. In the end, this is just sheer laziness on the part of legislators. The idea should be to craft laws that protect and promote the public interest while not wrecking the foundation upon which that interest is built. HR 3920 is an attempt to circumvent the responsibility of writing solid, proper legislation. It would allow the Congress to be lazy in the crafting of laws, and if the Constitution of the United States says they can't do it that way, they want to do it anyway. And they're not going to get away with it. ____________________ Works Cited • Gunther, Gerald. "Judicial Review." Judicial Power and the Constitution, Ed. Leonard W. Levy et. al. New York: MacMillan, 1990. (pg. 3) See Also • United States Constitution. See http://www.house.gov/Constitution/Constitution.html • Office of U.S. Representative Ron Lewis. Press Release: Accountability for Judicial Activism Act Introduced in House - Rep. Lewis introduces landmark legislation to override SCOTUS decisions. March 9, 2004. See http://www.house.gov/apps/list/press/ky02_lewis/Activism.html
I agree that this is too transparent an attempt to undermine the constitution and will not succeed, but only because its too transparent and would probably wreck the careers of those who did it, not because congress would be put in its place by the courts or anything of that sort. Keep in mind that its the executive branch that enforces the laws. If they found a way to rephrase this to make it less transparent and therefore more palatable they could very well do it. If they passed such a law, with the backing of the president, and the supreme court overuled it, and the legislature then used its self-granted power to overrule the supreme court, the president would ultimately be the one who made the decision about which laws to enforce. Actually congress wouldn't have to be involved at all. All that would be needed for this to happen is a way to make the public accept it. Someone can currently have all their constitutionally guaranteed rights stripped from them by being designated an "enemy combatant". This is clearly prohibited by the constitution and yet it takes place. They didn't do this by passing a bill titled "Presidential Right of Revocation of Individual's Civil Rights" and they won't suceed in this bill, but what if they changed the language so that it allowed congress to, by 2/3 vote, to rule that the supreme court was "legislating from the bench" and had overstepped its bounds? What if the president just declared that the court had overstepped its bounds and he would not be enforcing its decision?
The less the 3 branches represent the will of the people, the less they can maintain in common. Corporate interests are causing unprecedented internal strains on our democacy. Like early nuclear experimentation, we're learning what resonances can break atomic bonds. Unfortunately, we've got political accelerators but no Einstein. We don't even have a President who can pronounce "nuclear". Things may become unpredictable in our trial-and-error dabbling with splitting the National Atom.
I assume you believe the Congress should have to pass an Amendment in order to make an Act constitutional if that Act's been struck down by the Court. I don't see it that way at all. The question of contitutionality is, traditionally, up to the Court, but that doesn't preclude the Congress from getting involved. I don't think there's any document explicitly requiring Judicial Review; Marbury vs. Madison is only a precedent.. it's not written in stone... well, it is, sort of, in the stone of history. Section 2, Clause 1 doesn't say much, in my opinion. I'll admit this is a weird and backward thing to do. It "flies in the face" of hundreds of years of functionality, but I'm not sure if it's as signifcant one might think. The Fathers foresaw, after all, that the Legislative body would be the most powerful of the three. On what basis? I'm not certain, but I doubt the Constitution makes definite, or any statements with regard to Judicial Review. Does it? ... not really. A loose interpretation of Section 2 allows for it and practially encourages it, but I'm not sure that's viable. EDIT: The Act's not going to pass anyway. It's too bizarre.
Judicial review is a logical consequence. I would refer you here to my post to Cazov, only a few up the ladder. The citation from Gerald Gunther explains it reasonably, I think.
