Reply #49: You have bought into a right wing misinterpretation of Art. III

[jberryhill]

This crazy notion that Congress and the President can render an act unreviewable started floating around about two years ago, and it's time to put the wooden stake into this vampire. It's based entirely on an incomplete reading of the context of that section of Article III.

Yes, Congress can determine the structure of the courts and their jurisdiction. For example, setting up the geographical areas of the appellate circuits, or in the case of the CAFC defining the subject matter of cases to be heard by particular courts.

What Congresss does not have the power to do is to excise Article III - i.e. "the judicial power" - from our system of government.

You have to start with Section 1:

"Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

In other words, there need not be ANY other courts. Congress can abolish them all. Except ONE.

What cases can the Supreme Court decide?

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,"

ALL CASES arising under the Constitution and federal laws.

Now, the later part of Article III divvies up original and appellate jurisdiction on the assumptiont that there will be inferior courts. However, if there are no inferior courts, then the "judicial power" assigned to the Supreme Court doesn't disappear from the equation. The "judicial power" still extends to all cases arising under the Constitution and federal laws.

Here's the real catch with this notion of throwing the judicial power under a bus. Even if Congress passes a law that says "a court can't hear this", the law is not self-executing. The Court STILL has to decide whether it "can't hear this". THAT decision is appealable right up the line. Then, we reach the point where the Supreme Court can opine on whether by saying "a court can't hear this", Congress has transgressed a Constitutional outer boundary.

That was the essence of the "power grab" in Marbury v. Madison. The question of whether a court can hear a matter is up to the court. Decisions of Congress and the Executive are due a certain deference, but the court cannot say "we think it's unconstitutional, but who are we to decide."

(Although if you read Bush v. Gore carefully, it seems like they did that to some extent)