Last week, President Joe Biden used the op-ed pages of The Washington Post and a speech at the LBJ Presidential Library to call for long-overdue court reform. Last Thursday, Senate Majority Leader Chuck Schumer, along with 34 other Senate Democrats, did the same.
Schumer’s No Kings Act dovetails with but doesn’t duplicate Biden’s proposed reforms. More importantly, the bill aggressively pushes Congress to do its job and to restore a small semblance of checks and balances to American democracy.
As much as people have called for Biden to helm court reform, those reforms can proceed only through the legislative branch or constitutional amendments. The president’s backing is necessary but not enough. Seeing Senate Democrats make a move is a welcome sign they are embracing the power of messaging bills this election season. The No Kings Act has no hope of passing at this juncture, but that’s not the point. It’s a statement of position, and it comes out swinging.
Biden called for three reforms: First, he wants a constitutional amendment removing immunity for crimes committed by a former president while still in office. Next, he proposed 18-year term limits for Supreme Court justices, with each president appointing a new justice every two years. Finally, Biden called for the Supreme Court to be bound by an ethics code, just as every other federal judge is. The ongoing antics of Justices Samuel Alito and Clarence Thomas make clear how necessary a binding ethics code is.
The No Kings Act focuses only on the first of these—the unprecedented and historically illiterate blanket grant of immunity the Supreme Court gave Donald Trump. The bill isn’t pretending to be neutral. Rather, it’s a clear assertion of authority, stating that “Congress, under the Necessary and Proper Clause of section 8 of article I of the Constitution of the United States, has the authority to determine to which persons the criminal laws of the United States shall apply, including any President.”
Without getting too far into the weeds, the Necessary and Proper Clause gives Congress authority to use all necessary and proper means to execute all the express powers the Constitution gives it elsewhere. The Supreme Court has held that the Necessary and Proper Clause gives Congress the authority to enact criminal laws.
Relying on this, the No Kings Act states Congress “has the authority to determine to which persons the criminal laws of the United States shall apply, including any President.” This makes sense—if Congress can pass laws about crimes, it gets to determine who is subject to those laws.
The No Kings Act fully wipes out the presidential immunity the Supreme Court conferred on Trump. Under the bill, presidents and vice presidents—past or present—would have no form of immunity from criminal prosecution. To make that stick, the act strips the Supreme Court of jurisdiction over any attack on the constitutionality of the law and limits who can challenge the law.
Only presidents and vice presidents could bring a suit alleging the law is unconstitutional. This blocks opportunities for conservative states to challenge the law, a necessary move when those red states have become near-constant vehicles for litigation thwarting anything enacted by Democrats.
Ordinarily, to bring a lawsuit, a plaintiff must show standing—that they have been, or will imminently be, harmed; the harm is connected to the actions of the opposing party; and a decision in their favor will alleviate that harm. However, the Supreme Court has, of late, been very willing to let conservatives sue without standing. The No Kings Act eliminates this possibility by narrowing who could challenge the law to a class of only a handful of people.
Better still, the act strips the court of the ability to hear a challenge to the law, period. Any challenge must be brought in the District Court for the District of Columbia, and any appeal can only be heard in the D.C. Circuit Court of Appeals. As much as it likely irritates the conservatives on the high court, Article III, Section 2, Clause 2 of the Constitution endows Congress with the ability to define the scope of the Supreme Court’s appellate jurisdiction, the power of the higher court to challenge the decisions of lower courts.
The Supreme Court has held that Congress is even entitled to pass a law that retroactively applies to cases begun before the law was passed. So, while Republicans will howl with outrage about this maneuver, it isn’t unprecedented, and it’s grounded in the Constitution—unlike inventing presidential immunity.
Nor is it unprecedented for Congress to respond to the wrongheaded actions of the Supreme Court by passing new laws to undo the damage. Schumer’s office issued a helpful overview of when Congress legislated constitutional issues in the wake of bad Supreme Court decisions. After Dred Scott v. Sanford, which held Congress did not have the power to regulate slavery in the territories, Congress passed a law explicitly banning slavery in the territories. After 1974’s Geduldig v. Aiello, where the court said pregnancy discrimination didn’t count as sex discrimination, Congress enacted the Pregnancy Discrimination Act in 1978.
Though there’s no chance the No Kings Act will make it past the 60-vote filibuster threshold, even an unsuccessful vote gets GOP senators on record. Their inevitable vote against the bill tethers them to the inherently anti-democratic assertion that the president functions as a king.
A vote against the bill is also a vote against the Founding Fathers. The No Kings Act shrewdly invokes the words of Alexander Hamilton. The king of Great Britain, Hamilton wrote in Federalist No. 69, was “sacred and inviolable; there is no constitutional tribunal to which he is amenable.” In contrast, Hamilton proposed the American president could be impeached, would be “liable to prosecution and punishment in the ordinary course of law” when no longer in office, and would be subject to “personal punishment and disgrace.”
The Supreme Court has ensured that Trump is subject to the protections of the law but none of the obligations. They’ve proven themselves poor stewards of democracy, and it is high time Congress reins them in. The fact that such a move would also result in Trump’s personal punishment and disgrace is really just a bonus.
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