Saturday, October 24, 2020

A Proposed Joint Resolution on Judicial Power

Mark Tushnet

Here's a thought in the event that there is a Biden appointed commission on court reform. What about a Joint Resolution on Judicial Power: "No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional."

Some accompanying commentary: As a Joint Resolution it has the force of law. I have little doubt that the current Supreme Court would hold it unconstitutional (even, perhaps, manifestly so -- which would raise a question sort of about self-reference) as an infringement on the judicial power not permitted by the powers to create lower federal courts and to regulate the jurisdiction of the Supreme Court, and, as applied to state courts, as not a proper means of ensuring the supremacy of federal law.

Why do it, then? Mostly as a signal to the courts about the view the political branches gave of their (that is, the courts and the political branches) respective powers. Political scientist Tom Clark and others have shown that such signals sometimes at least appear to affect the way the Supreme Court exercises its power of judicial review. (Incidentally, the formulation "manifestly unconstitutional" does the job well, but of course other formulations might do so.)

 One note: The proposed Resolution would be confined to the power to hold federal statutes unconstitutional. As Justice Holmes famously and correctly noted, the power to hold state statutes (and local ordinances) unconstitutional rests on a different footing. (And, just to make the obvious point, the proposed Resolution, had it always been in effect, wouldn't have any bearing on decisions dealing with state regulations of abortion or state-mandated racial segregation. [There would be an interpretive question about Bolling v. Sharpe, but the concern that underlies that question has been around since the decision itself.])

Another note: Think about the following scenario: A state enacts a statute that the Supreme Court holds unconstitutional without saying it is manifestly unconstitutional. Invoking one of its enumerated powers (for present purposes, which one is irrelevant), Congress enacts a statute expressly authorizing states to enact and enforce exactly the same statute as the one the Court held unconstitutional. Under the Resolution that federal statute would be constitutionally permissible -- and so would be state laws enacted pursuant to the authorization it gave them -- unless the courts concluded that such an exercise of the enumerated power was manifestly unconstitutional. I personally think that that is the right result in principle (even in connection with a slew of state enactments that I think the courts would and should find unconstitutional), but I suspect that others will vigorously disagree.

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