The US Constitution includes a short clause that allows congress to exempt a law it passes from judicial review. Federal courts have jurisdiction to review laws that congress passes with “with such Exceptions and under such Regulations as the Congress shall make.” [1]
Unless I misunderstand because there is a legal authority that defines ‘Exceptions’ and/or ‘Regulations’ in a way I am not aware of, that clause seems to give the president and congress the power to write and pass a law with a provision that states that courts do not have the power to review the law. Thus, for example, congress could write a law that codifies the Roe v. Wade abortion decision and/or the Obergefell v. Hodges same-sex marriage decision as a federal law that is not subject to judicial review for its constitutionality. This tactic is called jurisdiction stripping.
If that is how this can work, one can instantly see the havoc this could wreak on American society and the operation of the federal government. A radical conservative president and congress congress could write and pass laws to restrict voting rights or to expand gun rights and that law could be shielded from judicial review. A liberal president and congress congress could write and pass laws they wanted.
In 1982, a young lawyer and now chief justice of the US supreme court, John Roberts wrote a detailed legal analysis as part of an evolving radical conservative legal strategy to try to undo Roe v. Wade, public school desegregation and other social trends that conservatives hated then and still hate today. Roberts wrote that the constitution contains “clear and unequivocal” language that gives congress the power to shield laws from Supreme Court review. One can now understand why George W. Bush nominated Roberts to be the chief justice on the Supreme Court.
Now that radical conservatives dominate the Supreme Court, liberals are considering using this constitutional clause to shield laws that liberals would like to see passed and protected from endless court battles. Liberal are also considering expanding the supreme court and packing it with liberal judges and imposing term limits on Supreme Court justices, both of which seem to be problematic and will likely further polarize American politics.
What seems to be happening now
The decades-long radicalism of powerful conservatives and their rigid unwillingness to accept demographic and social change they hate and reject runs deep and powerful. Their desperate, slowly losing fight against modernity and social change has led them to the malicious and deeply immoral political space they now occupy. Many radical conservatives have come to realize that reliance on facts, truth, sound reasoning and reasonable compromise, an honest clean fight of ideas, will not stop the changes they what stopped. They will lose if they play politics fairly, respectfully and transparently. In the process of protecting their version of America, radical conservatism has become dishonest, immoral, authoritarian and opaque. Authoritarianism and opacity is discussed here.
In reaction to how dirty and nasty the right has played to get us here, the left is now considering some of the same authoritarian tactics the right has considered or used. The difference between the two sides today is that the radical right is mostly an exclusive white minority trying to impose its will on an unwilling majority, while the left is generally trying to rule in the name of the majority. The years of RINO hunts in the GOP has drained that party of ideological diversity and at the same time, racial diversity. In one sense, the GOP is a spent force that is cornered, enraged and extremely dangerous. Its willingness to resort to authoritarianism, immorality, lies, deceit and so forth seem to be provoking at least some similar responses on the left.
In essence, modern mainstream radical conservatism is dragging American society and governance down into dark, immoral places. We may not be able to save civil society, democracy, civil lib or the rule of law.
Information source: Bloomberg Businessweek
Footnote:
1. Caveat: The preceding phrase, In all other Cases before mentioned, may somehow limit the kinds of laws that are subject to jurisdiction stripping.
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