The Supreme Court’s recent decision that former President Donald Trump was allowed to commit crimes while in office is one of the most troubling decisions in the court’s history. Justice Sonia Sotomayor cautioned in the dissent that it could have allowed Trump to be acquitted if he had “Navy SEAL Team 6 ordered to kill a political rival”.
Now Senate Majority Leader Chuck Schumer (D-NY) plans to introduce legislation that seeks to neutralize it.
The bill is known as “”.No King’s Act“It has 29 co-sponsors, all of whom are members of the Democratic caucus
Schumer’s bill relies on a rarely used congressional power to narrow the court’s authority to hear certain appeals. The idea is to prevent the Supreme Court from enforcing Trump’s immunity decision by removing the court’s jurisdiction over the president’s trial.
The bill also declares that the President, Vice President, and former President and Vice President “shall not be entitled to any immunity … from criminal prosecution for alleged violations of the criminal laws of the United States unless otherwise specified by Congress.”
inside Trump v. United States (2024), the Court’s six Republicans held that presidents and former presidents have broad immunity from criminal prosecution for unlawful acts engaged in exercising their authority as president. Among other things, the Republican justices concluded that the executive branch, headed by the president, “has ‘sole authority and complete discretion’ to decide what crimes to investigate and prosecute.”
So under the Republican justices’ understanding of the Constitution, Trump could not face criminal consequences if he ordered the Justice Department to bring perjury charges against every elected Democrat in the country.
Schumer’s No Kings Act is the second major proposal from a top Democrat to target the courts. Trump Immunity decision. Earlier this week, President Joe Biden proposed a constitutional amendment to reverse that TrumpAnd the amendment was also supported by presumptive Democratic presidential nominee Kamala Harris
The No Kings Act differs from Biden’s proposal because it is common law and therefore does not require approval by three-fourths of the states like a constitutional amendment. In theory, the No King’s Act could be enacted by a simple majority of both houses of Congress and signed into law by the President.
In practice, however, the bill will likely trigger widespread resistance from the same Republican justices Trump decision if it actually becomes law (something unlikely to happen unless Democrats win both houses of Congress and the White House this November). Although the constitution Allows Congress to make “exceptions” to the courts’ jurisdictionThe Supreme Court can still declare unconstitutional a law that takes away the authority of certain judges
Still, Schumer’s bill is significant because it shows Democrats are increasingly willing to play along Constitutional hardball Against a Supreme Court dominated by Republicans. At least two of the court’s six Republicans are there because Senate Republicans have engaged in similar hardball tactics to ensure the Supreme Court will have a Republican majority.
Stripping of Jurisdiction, Explanation
Almost all cases that reach the Supreme Court fall within its “appellate jurisdiction,” meaning that the case must have begun in a lower court and the justices can decide only after another court has weighed in on it. The Constitution provides that subject to this appellate jurisdiction “Such exceptions, and under such regulations as Congress“
Thus, the text of the Constitution suggests that Congress has virtually unlimited power to decide which appeals will be allowed to be heard by the Supreme Court — although, as I will explain in more detail below, Supreme Court precedents make the matter much more complicated.
Although there is some doubt about the scope of Congress’s power to narrow the Supreme Court’s jurisdiction, it is widely understood that Congress can decide which cases will be heard in lower federal courts. Although the Supreme Court is created by the Constitution, the Constitution also provides for it “Inferior” federal courts must be created by an act of Congress.
The power to create a new court includes the power to determine which cases may be heard by that court, and Congress regularly passes laws defining the jurisdiction of lower federal courts. For example, the United States District Court for the Southern District of Texas, generally only has jurisdiction over cases arising from southern Texas, and not cases arising from, say, Vermont.
No King’s Act Stripping of jurisdiction depends on both forms.
It provides that any criminal case against the President must be filed in a federal trial court in D.C., thus preempting all other federal trial courts with jurisdiction over the case, and that any civil suit claiming that the No Kings Act is unconstitutional must be filed. DC. Those decisions are then appealed to the United States Court of Appeals for the D.C. Circuit, a court that currently has a 7-4 Democratic majority among active judges.
Thus, the law moves claims of presidential immunity to a single court and keeps those cases away from highly partisan courts like the Fifth Circuit, which consistently hands down decisions that benefit the Republican Party.
Additionally, the bill provides that the Supreme Court “shall have no appellate jurisdiction” over claims that “an alleged criminal act was within the ultimate or special constitutional authority of the President or Vice President or an alleged criminal act related to the official duties of the President or Vice President.” ” A separate provision provides that the Supreme Court “shall have no appellate jurisdiction from a declaration of unconstitutionality of any provision of this Act (including this section).”
Thus, the bill seeks to lock the Supreme Court out of presidential immunity cases and create the D.C. Circuit, which previously ruled Trump is not allowed to commit crimes When he was in office, the final word in this case.
Will this strategy actually work?
There are two valid constitutional arguments against the No Kings Act.
The first involves the bill’s provision stating that all cases against former presidents must be brought in D.C. federal court. The Sixth Amendment provides that criminal defendants shall be tried “State and District in which the offense is committed“So if Trump had said, A man was shot in the middle of Fifth Avenue in New YorkHe should be tried in New York not DC.
That said, it’s unclear whether the Sixth Amendment will have much effect on most potential prosecutions of the president. The Trump The opinion essentially concerns whether a president is immune from prosecution.”official workCommitment while in office. The president is a federal official who lives in Washington, DC, so most potential crimes committed by a president would be tried in DC federal court anyway.
A second potential constitutional challenge to the bill involves the scope of Congress’s power to strip the Supreme Court of its jurisdiction, a power that is more uncertain than the broader authority to narrow the jurisdiction of lower federal courts.
Much of the debate over the power of Congress to diminish the Supreme Court’s jurisdiction turns on old precedents. inside Ex part McCardle (1869), a newspaper publisher is arrested by a military commander in the post-Civil War South. The publisher contended that his arrest was illegal, but before the Supreme Court could rule on his case, Congress passed a law removing the court’s jurisdiction.
The final decision of the court in 2012 McCardle No King’s Act provides ammunition to both proponents and opponents of the Act. in one hand, McCardle There was respect for the power of Congress to make exceptions to the jurisdiction of the courts. “[T]”The power to make exceptions to the appellate jurisdiction of this Court is by express wording,” Chief Justice Salmon Chase wrote for a unanimous court.
At the same time, however, the Chase opinion ended with a line that the jurisdiction stripping statute “does not affect jurisdiction previously exercised,” meaning that court decisions made before the jurisdiction stripping statute was enacted remain good law. so Trump Technically good law exists even if the Supreme Court forbids it to be enforced, and lower courts may feel compelled to respect that decision.
Two years later, In United States v. Klein (1871), the Court ruled that Congress could not use a “jurisdiction-exclusion statute.”Decision rules“For the Supreme Court. That is, although Congress may take away the Supreme Court’s jurisdiction to hear all abortion cases, it cannot attempt to force the Court to decide these cases in a particular way by denying jurisdiction only in cases where the Court is inclined. Ruling against abortion rights.
In addition, in Felker v. Turpin (1996), three Justices joined in a concurring opinion suggesting that Congress cannot completely prohibit the Court from hearing a particular matter. Concurring opinion by Justice David Souter Felker suggests that, although Congress may close a process that a litigant may use to bring a case to the judges, Congress must leave open some other avenue that would allow the issue presented in that case to be heard by the Supreme Court.
What these cases show is that Congress’s power to usurp the Supreme Court’s jurisdiction is rarely used, and that the Court has not clearly defined the scope of that power. That’s bad news for Schumer and other proponents of the No Kings Act. Given how uncertain the Court’s non-jurisdictional precedents are, it probably wouldn’t be difficult for the Supreme Court’s Republican majority to come up with a reason to declare the No Kings Act unconstitutional if they wanted to.
Still, the No Kings Act is significant, less because it’s less likely to be upheld by a Republican Supreme Court than because it shows that Democrats are starting to think creatively about how to rein in a rogue Supreme Court. If the court’s Republican majority insists on its enforcement Trump Even if the immunity decision is rejected by Congress, Congress has plenty of other tools it can use to protect the nation from lawless presidents and lawless presidents.
Among other things, Congress could zero out court budgets for law clerks and other support staff. It can also oust judges from their chambers. And it could add more seats on the Supreme Court, which could immediately be filled by Democratic justices if a Democrat were in the White House.
The No Kings Act, in other words, represented a significant escalation in the battle between elected Democrats and unelected Republicans on the Supreme Court. And, if those unelected Republicans don’t yield, Congress has plenty of tools it can use to increase it.
