Abolition of Jurisdiction or Abolition of the Court? The “No Kings Act” is a Decapitation of the Constitution – JONATHAN TURLEY

Senate Majority Leader Chuck Schumer (D., N.Y.) introduced the “No Kings Act” with great fanfare and the support of most of his fellow Democrats. Liberal groups hailed the measure, which aims to legislatively overturn the decision Trump vs. United States. This law is obviously popular with the press and pundits. It is also, in my opinion, completely unconstitutional. The “No Kings Act” is not only a cynical abdication of responsibility by the Democrats, but would constitute a virtual decapitation of the Constitution.

I’ve written before about the false claims made about the Supreme Court decision by President Joe Biden, Vice President Kamala Harris, and other leading Democrats. The press and pundits have reached a new level of sensationalism and hysteria in their coverage of the case, with MSNBC’s Rachel Maddow even calling it a “death squad decision.”

Trump’s decision

The Court actually rejected the most extreme positions of the Trump team and the lower courts.

As in the past, the Court adopted a three-tiered approach to presidential powers based on the source of the presidential action. John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against the president Harry Truman steelworks takeover.

In his famous Youngstown decision, Justice Robert Jackson divided the balance between the executive and legislative branches into three types of actions. In the first case, the president acts with the express or implied authorization of Congress. In the second case, he acts where Congress remains silent (the “twilight zone”). In the third case, the president acts in defiance of Congress.

In that decision, the Court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for acts that fall within their “exclusive sphere of constitutional authority,” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private acts.

While media coverage is largely inaccurate, the No Kings Act is cynically dishonest.

To his credit, President Joe Biden was at least honest in proposing a constitutional amendment to overturn the decision. Asset. However, this measure was doomed to failure in Congress, because under Article V it required a two-thirds majority vote in both houses and then ratification by three-quarters of the states.

Democrats are seeking to circumvent this process with simple majority votes with the No Kings Act.

The bill is presented as a power-sweeping measure, not an effort to dictate outcomes.

Congress has the power to alter the jurisdiction of federal courts. This authority has been recognized by the Court itself in Ex parte McCardle (1869). Chief Justice Salmon Chase held that the Court had the power to “make exceptions to the appellate jurisdiction of this Court.”

However, Chase also stressed that the law “does not affect jurisdiction that was previously exercised,” so previous decisions would remain fully enforceable.

Moreover, shortly after McCardleThe Court ruled in United States v. Klein (1871), that Congress cannot use its judicial jurisdiction authority to establish a “rule of decision” for the Supreme Court, or effectively dictate the results of court cases.

The Law on the Absence of Kings

The No Kings Act does more than remove jurisdiction and makes no secret of its goal of dictating the outcome of future cases.

Section 2 of the act is intended to “clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States, unless otherwise provided by Congress.”

This is a rather Orwellian take on “clarification” since it directly contradicts the opinion that states in the following section that “(a) the President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from the criminal laws of the United States, except as provided by Congress.”

Schumer and most Senate Democrats believe they can simply order lower courts to ignore a Supreme Court decision on the meaning of the Constitution. That would undermine the foundation of Marbury v. Madison after 221 years.

True, it is couched in strictly jurisdictional terms. Yet it frames the jurisdictional changes to reflect the decision and future immunity claims.

The bill states that federal courts “may not review whether an alleged violation of a criminal law of the United States committed by a President or Vice President was within the conclusive or exclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President, unless otherwise directed by Congress.”

But Democrats aren’t done yet. Section 4 effectively strips the Supreme Court of the power to rule on such questions and makes the appeals courts the highest courts in the land on presidential immunity:

“The Supreme Court of the United States shall have no appellate jurisdiction on the ground that an alleged criminal act was within the conclusive or exclusive constitutional authority of a President or Vice President, or on the ground that an alleged criminal act was connected with the official functions of a President or Vice President.”

This is one of the crazy ideas put forward by the Presidential Commission on the Supreme Court. After all, why fill the Court if you can just gut it?

Of course, some sponsors like Elizabeth Warren (D., Mass.) want both The Court would have to be filled and stripped of its authority. Presumably, once filled, the authority to act as a Court would at least be restored to the liberal majority.

By making the DC Circuit (where most of these cases are likely to be decided) the highest court in the land on the issue, Democrats are engaging in the crudest form of forum shopping. The DC Circuit is likely to remain under the control of Democratic appointees for years to come. (The law expressly makes the DC courts the only place to bring a civil action on this issue and provides that “any decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and shall not be appealed to the Supreme Court of the United States.”)

The Supreme Court of the United States has no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to enjoin or restrain the operation or enforcement of any provision of this Act (including this section) on the ground that it is unconstitutional.

But wait, there’s more.

The No Kings Act reads like a fairy tale read by Democratic senators to their grandchildren at night. Not only would evil conservative judges be defeated by a lower court controlled by Democratic appointees, but the bill is filled with other far-left wishes. It would strip the Court of the ability to hear other cases, dismiss criminal proceedings, suppress evidence, and grant a writ of habeas corpus, or “the Great Writ,” that has been the bedrock of Anglo-American law for centuries.

The Democrats even impose, by legislative means, that any review of the law must meet a standard of their choosing. They stipulate that “(a) a court of the United States shall presume that a provision of this Act (including this section) or the operation of any such provision is constitutional unless it is shown by clear and convincing evidence that such provision or its application is unconstitutional.” Thus, even the clear and convincing provision of the Act must be subject to a review of clear and convincing evidence.

Marbury’s death?

Democrats have insisted once again that they are simply changing the Court’s jurisdiction and are not ordering decisions. However, the motion’s sponsors make clear that this is intended to “reaffirm that the President is not immune from judicial accountability.” Sponsors like Democratic Sen. Sheldon Whitehouse (Rhode Island) have said that “Congress has the power to repair the damage done by this decision” by a “court under review.”

The greatest irony of all this is that Democrats are virtually reverting to the position of being critics of Marbury v. Madison, who argued that the framers of the Constitution never intended the Supreme Court to be the final arbiter of what the law meant. That principle has been a touchstone of American law since 1803, but Democrats would now return to the English approach under the guise of jurisdiction-stripping legislation. Before the Revolution, Parliament could dictate what the law meant in such cases, thereby overriding the courts. In practical terms, Democrats would return to that earlier approach.Marbury approach.

Marbury The No Kings Act introduced a vital stabilizing element into our system that contributed greatly to the creation of the oldest and most successful constitutional system in history. Democrats would today reject much of that element in a fit of partisan anger. To call the No Kings Act a bill designed to strip citizens of their powers does not hide its intent or its implications for our system.

This is a rather curious position for the party that claims to defend the rule of law. The No Kings Act would constitute a radical change in our constitutional system to allow mob justice to be delivered by legislative decree.

The promoters of this revolution, like Sen. Jeanne Shaheen, D-N.H., had promised a “revolution” if conservatives did not govern as Democrats demanded. Now they have made good on their threats, even though few expected them to undo the work that was done after our own revolution.

Just to make sure that the sponsorship of this infamous legislation is not quickly forgotten, here are the senators ready to pass this constitutionally destructive measure:

Chuck Schumer (D-NY), Mazie Hirono (D-HI), Brian Schatz (D-HI), Ben Ray Luján (D-NM), Jack Reed (D-RI), Richard Blumenthal (D-CT), Tom Carper (D-DE), Peter Welch (D-VT), John Hickenlooper (D-CO), Bob Casey (D-PA), Chris Coons (D-DE), Jeanne Shaheen (D-NH), Tammy Baldwin (D-WI), Jeff Merkley (D-OR), Ben Cardin (D-MD), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Patty Murray (D-WA), Chris Van Hollen (D-MD), Ed Markey (D-MA), Tammy Duckworth (D-IL), Amy Klobuchar (D-MN), Laphonza Butler (D-CA), Sheldon Whitehouse (D-RI), Bernie Sanders (I-VT), Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Ron Wyden (D-OR), Angus King (I-ME), Martin Heinrich (D-NM), Debbie Stabenow (D-MI), Alex Padilla (D-CA), Gary Peters (D-MI), and Raphael Warnock (D-GA).

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in the Age of Anger” (Simon & Schuster).