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Cake day: June 11th, 2023

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  • Can justices declare everything Congress passes to be unconstitutional?

    Theoretically, yes. They don’t don’t this, but they could argue that Congress does not possess the power to enact the particular law relevant to the case before them. They are constitutionally empowered to answer each plaintiff’s petition; they could, theoretically, find in favor of every plaintiff.

    The constitutional remedy for such an abuse is for Congress to pack the courts, impeach the justices, or amend their legislation into the constitution.

    Legislative power should belong to representatives elected by the people.

    Indeed. But we aren’t talking about a legislative power. If we are talking about judicial review, we are deciding whether or not the legislature is empowered to create a particular law.

    In this case, they are claiming the power to prohibit the courts from answering my petition for redress of grievances. The constitution guarantees me that right; the legislature is not empowered to strip me of that right. They are not empowered to create such a law. The creation of such a law is not a legislative power; overturning that law is not an imposition on the powers of the legislature.



  • OK. Let’s assume that logic for a moment. What are its limitations? Does Congress have the authority to declare everything an “exception”, and completely subsume Article III?

    Of course not. Section 1 says the judicial power is wielded by SCOTUS and the inferior courts. Congress could try to specify a particular inferior court for specific types of cases, (Such as the FISA court), but they can’t declare a type of case to fall completely outside of any court’s jurisdiction. That would violate Section 1, as well as most of the bill of rights.

    All “cases” are under the purview of the judicial branch. So long as anyone can bring a “case” balancing legislative vs constitutional authority, judicial review arises as a constitutional power.


  • Judicial review is not in the US constitution at all.

    You’re not the first person to say this to me. I don’t know where you’re getting that idea. Judicial review is a direct conclusion of Article III, Section 2:

    The judicial power shall extend to all cases, in law and equity, arising under this Constitution,

    When I take a case to the court, claiming the legislature is violating my constitutional rights, the court has to determine jurisdiction: Whether they are allowed to hear the case. Legislation purports to deny them jurisdiction over such a case; Article III specifically grants them jurisdiction over all cases.

    When they conflict, Article III supersedes legislation. Here, that constitutes judicial review.

    There’s a state/federal argument to be made, but not a separation of powers argument. The Texas constitution has similar language. For this provision of the bill to survive, SCOTUS (Or, more accurately, the Texas Court of Criminal Appeals) will have to refuse certain powers they are explicitly granted, in favor of limitations prescribed by another branch.