GOP Congressman Says Supreme Court Doesn’t Actually Get To Decide Whether Laws Are Constitutional

[LiberalFighter]

ThinkProgress

This is what passes for intelligence in Congress??

“Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional,” Bridenstine said in a Daily Caller interview posted Sunday. After accusing Democrats of “stacking the courts in their favor” — five of the current nine justices were appointed by Republican presidents — Bridenstine dismissed the idea that Congress must write laws within the boundaries set by the Supreme Court. “That’s not the case,” the Oklahoma congressman said.

The interviewer, Supreme Court Justice Clarence Thomas’s wife Ginni Thomas, didn’t have the heart to correct Bridenstine’s peculiar view of the Court’s role.

[Angry Dragon]

1. Raise your hands if you think this guy is an idiot .............

mine is raised

[Aristus]

7. Me!

[liberal N proud]

2. Wonder what government calss he took oin school.

This is why they don't want to educated children, an ignorant public, is easy to manipulate.

[OKNancy]

3. posted to Facebook

just so I can call him an idiot.. and an embarrassment

[former9thward]

4. Article III, Section 2 (2) allows Congress to bypass the Supreme Court.

It has rarely been used but Congress does have the power to take laws away from SC review. I don't know if this is what the congressman was talking about.

[Igel]

5. Perhaps.

But there's always the "what SCOTUS says is just its biased opinion" views. Sort of an essentialist position on the term "constitutional". Implementing it looks back before Marbury, which makes this conservative very conservative indeed. Not sure what he's conserving. (Prunes, perhaps?)

Then again, what's ruled constitutional today can be ruled unconstitutional tomorrow.

And the Congress is under no constraint to pass only Constitutional laws.

[brooklynite]

6. Actually...he's perfectly correct

Congress DOES NOT have to write laws within the boundaries set by the Supreme Court. It has to write laws within the boundaries set by the Constitution. And the Supreme Court get to determine what those boundaries are.

[zipplewrath]

9. Technically he's right

The court doesn't "decide" whether laws are constitutional. They determine how the laws will be enforced by the courts. When they declare that a law is unconstitutional, they are declaring that the courts won't enforce them at all. Even more, they can award compensation and consequences based upon their determination.

The conversational difference between this, and the concept of the courts actually "deciding" that laws are unconstitutional is functionally zero.

[ashling]

8. I have heard this from the far right, but they are not the only ones to go there

When I hear Thom Hartman get into a lather claiming that the SCOTUS could not declare a law unconstitutional ...

well that's about the time I stopped listening to him.

[klyon]

10. Where in the constitution does it say they have the power to

declare laws unconstitutional? Just asking

[former9thward]

11. It is not just the far right.

Anyone who went to law school and didn't sleep through the Constitution classes knows it. Art III, Section 2(2) of the Constitution gives Congress the power to bypass the Supreme Court. Rarely used but it has been in the past.

[ashling]

12. Let me clarify that

I was replying to the op - I should have posted to that - sorry

I was talking about the strident "Constitutionalist" argument that since judicial review is not written in stone on the face of the document that it is not there. It is a rule of interpretation which was not abrogated by the framers. Courts interpret the law ... and the constitution.

Whether or not section 2(2) allows Congress to "bypass" the Supreme Court is another matter.

As Marshall says in Marbury,

. . . an act of the legislature, repugnant to the constitution, is void. . . .

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Judicial review was not a concept invented in Marbury, as these people claim.

[former9thward]

13. A case on this very topic is taught in law school.

During Reconstruction, Congress withdrew jurisdiction from a case the U.S. Supreme Court was then in the process of adjudicating. In terminating the case Ex Parte McCardle, 74 US 506 (1869), the Justices acknowledged the authority of Congress to intervene.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

In The Francis Wright, 105 U.S. 381 (1881) at 386: "While the appellate power of this Court extends to all cases within the judicial power of the United States, actual jurisdiction is confined within such limits as Congress sees fit to describe. What these powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control."

National Insurance Co. v. Tidewater Co., 337 U.S. 582 (1949) at 655 Supreme Court Justice Felix Frankfurter wrote: Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred."

[ashling]

14. And, again, I did not disagree

But that is not what the Congressman is saying. He is not talking about the power of Congress to alter jurisdiction. He seems to b using the argument that

1. the court cannot declare a law unconstitutional going forward,

and

2. it doesn't matter anyway because there is some undefined or ill-defined over riding power in the other branch to determine constitutionality for themselves or in the people to determine constitutionality

...leading to what? everybody becoming a law unto themselves? That is ludicrous.