Wednesday, April 21, 2004

Non-Volokh Responds

I have been emaling various bloggers and other media personalities about Rep. Lewis' proposed legislation, trying to get some discussion going. So far, only Juan Non-Volokh of the Volokh Conspiracy has responded via email (and no one has posted any mention on their blogs). Here is the correspondence:

    JNoV: What would be the basis for Congress' purported authority to enact such legislation?

    JoC: Rep. Lewis seems to see it as a test of Marbury v Madison as indicated in the referenced article. He could conceivably argue that, since judicial review is not included in "cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party", Congress has the authority to limit the Supreme Court's jurisdiction by Article III, Section 2. Whether allowing a 2/3 override falls under the rubric of "with such exceptions, and under such regulations as the Congress shall make" is a tricky argument and not one I would like to bet on succeeding. But it at least would be a better use of this section than the Jurisdiction Stripping approach which Eugene Volokh argued against in this post:

    But I think the subtext of your question is to imply that this would be on better footing if it were a proposed amendment. If so, I agree, and I think our time and political capital would be better spent pushing for such an amendment than for the FMA, for reasons noted in my blog.

    JNoV: Hmmm. Jurisdiction stripping would seem to be an "exception" to jurisdiction. That's a relatively easy case to make. (See, e.g. Ex parte McCardle; but see Ex parte Yerger.) Butoverturjning a decision? That is not only a challenge to Marbury and the very concept of judicial review -- which the founders clearly intended -- but is hardly an "exception" or even a "regulation" of jurisdiction. It's a substantive command. I don't buy it.

Fair enough. This probably means that any such restriction would require an ammendment, which I more or less suspected from the begining. But surely such an issue is worth discussing since we are currently in the midst of a heated debate on a much weaker ammendment.

NOTE: The link above to the Ex Parte McCardle decision was supplied by me, not Mr. Non-Volokh (or is it Dr. Non-Volokh?). I couldn't find a similarly succinct link for Ex Parte Yerger, in which the Supreme Court held that the repeal of jurisdiction granted by Congress did not affect previously held jurisdiction. I suppose US v Klein would also be relevent.

It is intriguing to speculate, however, on what would happen if the proposed legislation should be passed. When challenged in the Supreme Court (as it inevitably would be), it seems likely that the Court would rule against it. But such a ruling could be seen as evidence of a Court unwilling to support the concept of checks and balances. After all, an Executive branch veto is subject to override under the same conditions as in the proposed legislation. Couldn't the Court's very refusal energize an ammendment campaign?

UPDATE: I evidently missed the post at the Volokh Conspiracy. My comments are here.

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