No Kings Act | CourtAccountability

The "No Kings Act" is a Proper Exercise of Congress’s Constitutional Authority

September 23, 2024

Article III of the Constitution grants Congress the power to make “Exceptions” and “Regulations” to the Supreme Court’s appellate jurisdiction and to “ordain and establish” lower courts. Both Congress and the Supreme Court have long recognized that these clauses allow Congress to limit courts’ jurisdiction to hear appeals, which make up approximately 99% of the Supreme Court’s docket.

Majority Leader Schumer’s “No Kings Act” employs Congress’s jurisdiction-setting authority to effectively nullify the Supreme Court’s staggering decision in Trump v. United States that a president has absolute immunity—forever—from prosecution for committing crimes while in office.

A DEMOCRACY, NOT A MONARCHY—AND NOT A JURISTOCRACY

The No Kings Act rests on Congress’s own judgment as a coequal—and the first—branch of government that “the Constitution of the United States does not grant to any President any form of immunity (whether absolute, presumptive, or otherwise) from criminal prosecution, including for actions committed while serving as President,” and that the Supreme Court’s right-wing supermajority “incorrectly declared” otherwise in Trump v. United States.

Although the Supreme Court’s decision can be fully overturned by Congress only through a constitutional amendment, which Rep. Joe Morelle and Sen. Mazie Hirono have both put forward, Congress can move to render the decision a dead letter by reasserting its constitutional power to regulate the courts.

The No Kings Act does just that:

The No Kings Act Rectifies the Supreme Court's Constitutional Vandalism

First, the bill zeroes out Trump v. United States by removing the authority of lower courts to adjudicate the elements of presidential immunity.

Second, the bill strips the Supreme Court of appellate jurisdiction to grant relief to a former president or vice president claiming immunity under Trump v. United States.

Third, the bill sets specific rules for constitutional challenges to its provisions:

Only current or former presidents and vice presidents can challenge the bill’s constitutionality.
Constitutional challenges to the bill at any stage of litigation must be brought in the D.C. federal district court, and the D.C. Circuit has sole and final appellate authority over the bill’s constitutionality—meaning the Supreme Court cannot review it.
The Supreme Court has no jurisdiction to declare any provision of the bill unconstitutional or block enforcement of any provision the Court believes to be unconstitutional.
All facial challenges must be brought within 180 days of the bill’s enactment.
All as-applied challenges must be brought within 90 days of the bill’s enforcement or application.
Provisions of the bill can be struck down only with clear and convincing evidence of unconstitutionality.

Taken together, the Act’s provisions would effectively render Trump v. United States inoperative and box the Court’s right-wing supermajority out of any attempt to enforce their lawless ruling—all by using the powers that the Constitution explicitly gives Congress to regulate and make exceptions to the Court’s appellate jurisdiction.

Congress Has Clear Power to Limit the Court's Jurisdiction

Although the Supreme Court has never specifically defined the contours of Congress’s jurisdiction-stripping power, the consensus is that the power is quite broad. Judge Kevin Newsom, a conservative Trump appointee to the 11th Circuit, recently said, “I think from a textual perspective the case for robust Exceptions Clause authority is very, very, very strong.” Meanwhile, law professors Ryan Doerfler and Sam Moyn have advocated for jurisdiction stripping as a democratization measure, with Christopher Sprigman agreeing that it’s a nonpartisan “way to strike a better balance between judicial review and democracy.” In 2019, law professor Henry Monaghan noted that the “‘traditional’ and ‘conventional’ opinion is that neither Article III itself nor separation of powers more generally impose limits on the congressional power to fashion subject-matter limitations on the Court’s appellate jurisdiction,” citing, among other things, constitutional law scholar Charles Black’s description of congressional power as “the rock on which rests the legitimacy of the judicial work in a democracy.”

As President Biden’s Commission on the Supreme Court of the United States said in 2021, “Congress’s jurisdiction-stripping power is not unlimited, and neither the Court’s jurisprudence nor past practice fully defines its reach or scope.” The clearest limit, according to a Congressional Research Service analysis this year, is that “Congress cannot impede the judiciary’s power to decide cases independently—for example, by telling a court how it should rule in a specific case or how to apply existing law to the facts in a given case.”

The Scope of Congress's Power

How this standard applies to specific jurisdiction-stripping statutes has long been the subject of intense debate—as have the contours of just how broad Congress’s broad powers are.

Chief Justice John Roberts, as a young Justice Department lawyer in the Reagan Administration, championed stripping federal courts of jurisdiction to hear abortion, school prayer, and busing cases, even as his higher-ups thought such measures unwise if not unconstitutional. The same dynamic played out among Republicans in Congress at the time, with some leading conservative legislators pushing for such jurisdiction-stripping legislation, while others joined with liberal Democrats to oppose it.

That history, according to one liberal commentator, is reason for today’s court reformers to reject the No Kings Act. But as Majority Leader Schumer recently wrote in The Washington Post, “these arguments miss the bigger picture. This is not a theoretical discussion in a civics lecture. MAGA Republicans work every day to erode our democracy and have found the courts to be their most effective tool.” And those past debates did not stop Congress from exercising its power to strip federal courts of jurisdiction in recent years, with the Supreme Court reviewing such measures—including in politically charged matters.

The Roberts Court’s decisions reviewing jurisdiction-stripping statutes have been a mixed bag. In 2008, the Court invalidated a law stripping federal courts of jurisdiction to grant writs of habeas corpus to Guantanamo detainees. Roberts, writing for his fellow conservatives in dissent, would have upheld the statute.

Last year, in the Fiscal Responsibility Act of 2023, a bipartisan majority of Congress approved a provision that authorized funding to the controversial Mountain Valley Pipeline project and stripped all courts of jurisdiction to hear challenges to the legality of that provision. Like the No Kings Act, the provision gave the D.C. Circuit exclusive jurisdiction to adjudicate claims challenging the law’s constitutionality. Vacating a ruling from the Fourth Circuit that would have stopped completion of the pipeline, the Supreme Court allowed the law to go into effect without comment or noted dissents.

None of this, however, is predictive of what the Court would do to protect its handiwork in Trump v. United States against a congressional response. Like in Trump v. United States, the Roberts Court’s right-wing supermajority could use a challenge to the No Kings Act to grab even more power and attack our democracy with unprincipled constitutional theories created out of whole cloth. To do so, the justices would have to defy the clear letter of federal law to hear the case in the first place.

That, of course, is not outside the realm of possibility, but the prospect of the captured Court further proving its hostility to the people’s will should only be more reason for Congress to pass the No Kings Act.