The No Kings Act

Congress is belatedly trying to rein in the Supreme Court.  Biden has announced his support for some limited reforms, and some Congressmen are trying to put up a bill called the No Kings Act.

Just about every law student spends at least some time with Article III, Section 2, Clause 2 of the U.S. Constitution: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The second sentence is known as the “Exceptions Clause.” And the contrast between the first sentence, which does not contemplate any role for Congress in regulating the Court’s (limited) “original” jurisdiction and the second sentence, which clearly does, is [...] the heart of one of the most important—and oldest—debates about the relationship between Congress and the Supreme Court: Is Congress’s power to make “exceptions” to the Supreme Court’s appellate jurisdiction plenary (so that Congress could keep any/all appeals away from the justices), or is it limited?

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[T]he Supreme Court has never answered this question. Indeed, it has assiduously avoided answering this question—if for no other reason than because either answer would be a huge deal. Plenary Exceptions Clause power would allow Congress to kneecap the Court whenever it has the votes; limited Exceptions Clause power would give the Court dominion even over the political branches. Formalizing either outcome would thus be a lose-lose for the separation of powers. Instead, the only resolution for the first 234 years of the Court’s history has been the same as the resolution Joshua (the computer in the 1984 movie War Games) famously adopted for winning Tic-Tac-Toe: “the only winning move is not to play.”

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The Case for Plenary Exceptions Clause Power

If the Constitution’s drafters meant to limit Congress’s power, it sure would have been easy to say so—either in [the first] provision, or by giving the Court more “original” jurisdiction. [...] And although one could argue that the power to make “exceptions” to appellate jurisdiction is not the same as the power to completely eliminate it, that presupposes that Congress had an affirmative constitutional obligation to give the Supreme Court appellate jurisdiction in the first place. [...] To similar effect, if the Constitution limits Congress’s Exceptions Clause power, where/through which provision does it do that? Second, there’s the more structural argument that Congress has lots of other powers over the Court that it could use just as effectively if it really wanted to strangle it. If Congress has the power to starve the Court of all resources except the justices’ salaries, is taking away all of its appellate jurisdiction so much different?

The Case Against Plenary Exceptions Clause Power

First, there’s the text of a different provision: Article III, Section 1, the very first sentence of which provides that “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.”

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It ought to follow from that understanding that Congress therefore violates Article III when it makes someone other than the Supreme Court “supreme”.

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Second, there’s the practical argument—that there’d be little point in having an independent judiciary with the power to strike down acts of the democratically elected branches if those branches could take that power away at any time and for any reason.

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The real challenge for the anti-plenary power view is identifying what the actual limit is.

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It ought to be uncontroversial, at a minimum, that interpreting state law is not one of the Supreme Court’s essential functions. [...] But my own view is that there’s a very good argument that most, if not all, constitutional interpretation is the Court’s essential function—and that giving the final say over the meaning of a particular constitutional provision or principle to someone other than the Supreme Court is necessarily depriving the Court of its essential function.

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The issue is not whether the Court can hear a particular case or set of cases; the issue is whether the Court has the ability to interpret a particular constitutional provision in any case.

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The upshot is that Congress therefore doesn’t even start to run afoul of the Exceptions Clause until and unless it has taken away the Court’s power to conclusively interpret a specific constitutional provision or principle in all contexts—and given it to someone else, either a lower court or the democratically elected branches. [...] [I]f and when Congress crosses the essential functions line, it raises a serious Article III question.

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[T]he newly proposed “No Kings Act" [...] is aimed to minimize the impact of the Court’s recent ruling in Trump v. United States—and to heavily water down the efficacy of the immunity recognized by Chief Justice Roberts’s majority opinion.

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[I]n a nutshell, section 4(a)(2) of the bill would deprive the Supreme Court of appellate jurisdiction to enforce the immunity recognized in Trump v. United States in any federal criminal prosecution against a current or former President or Vice President (it can hear appeals in such cases on other issues; it just can’t grant any relief related to a finding of immunity). And section 4(b)(7) deprives the Supreme Court of appellate jurisdiction to hear constitutional challenges to the No Kings Act itself (including section 4(a)). Instead, both provisions give the last word on such issues to the D.C. Circuit.

  Steve Vladeck

And that would be a very important provision, otherwise, SCOTUS could simply declare the law unconstitutional.

My own view is that both section 4(a)(2) and section 4(b)(7) would exceed Congress’s power under the Exceptions Clause.

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[S]ection 4(a)(2) would prevent the Court from enforcing the constitutional immunity principle recognized in Trump; and section 4(a)(7) would bar the Court from resolving the grave Exceptions Clause question that section 4(a)(2) would thereby raise.

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Whether the analysis supporting it is right or wrong, the immunity recognized by Chief Justice Roberts’s majority opinion in Trump is undeniably grounded in the majority’s interpretation of the Constitution. And so giving the last word on the scope of that immunity to someone other than the Supreme Court, in every case in which it could arise, is necessarily depriving the Court of its essential functions.

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Ultimately, it seems to me that the only way courts could uphold either of those provisions, let alone both of them, would be to endorse the plenary power view of the Exceptions Clause. That may be satisfying to many of the Court’s critics in the short term; I have serious concerns about its implications in the long term. Of course, forcing the Court to strike down these provisions may be part of the political calculus here (assuming this bill could ever survive a filibuster in the Senate). But as a matter of pure constitutional law, it’s hard to see the upside.

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I realize that it might seem odd for someone with my view of the current Court to take this view. Odder still given how deeply problematic I believe that the majority opinion in Trump actually is.

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[T]here are lots of ways Congress could curb the Court’s power that don’t require provoking the gravest of constitutional questions—and that are, therefore, far more likely to be both politically viable and something that even the Court’s critics can unite behind. The No Kings Act, in contrast, may be good politics (I’m not yet convinced); but, once again, it strikes me as unnecessarily provocative constitutional law—and yet another obstacle to the kind of politically feasible and constitutionally permissible reforms that the Court so desperately needs.

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How about a bill that takes away the Court’s appellate jurisdiction to enforce the “Major Questions Doctrine” (which, after all, is just a series of statutory interpretations), or abolishes that doctrine altogether? Or a bill that requires the Court to hear lots more cases each term than it’s currently hearing (a power Congress has exercised repeatedly since the Judiciary Act of 1789, and one slice of which remains on the books today)? Or a bill that requires the justices to spend at least six weeks each year sitting on their assigned court of appeals (modeled on a practice that persisted from 1789—1911)? Or a bill that regulates the exact circumstances in which the Court can affirm injunctions based upon constitutional violations (a move the Court expressly upheld in the Eighth Amendment context in 2000)?

...but hey, do what you want...you will anyway.