Article III, Section 2, Paragraph 2 of the Constitution states, “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
In Ex parte McCardle (1869), the Supreme Court upheld the right of Congress to withdraw appellate jurisdiction from the Supreme Court over a pending case. Congress had repealed the statute which gave the Court appellate jurisdiction in McCardle and the Court acquiesced in the repeal.
The McCardle opinion of the Court did not rely upon the Marbury doctrine of judicial review to reach a decision. The above plain language of the Constitution stood without tortuous chains of lawyerly reasoning to make the point. And despite occasional cases which have attempted to narrow the reach of the above constitutional clause through the years, it is still settled law today. Congress may exercise this power under the Constitution to limit jurisdiction of the Supreme Court.
Today, if Congress did not want the Supreme Court to decide the constitutionality of Obamacare by using the Marbury doctrine of judicial review, it could pass a law tomorrow to remove the subject of, say, the insurance purchase mandate, from the Court’s jurisdiction.
Since first studying the decision in Marbury years ago, it has offended me. Judicial review clearly came about through Justice Marshall’s judicial overreach. I thought Marshall had fundamentally changed the balance of powers in the Constitution. A supreme federal judiciary was a known risk to the Founders and was widely discussed by the anti-Federalists at the time as an evil to be avoided.
And hindsight has not been kind to the doctrine of judicial review. From Dred Scott through Roe, the Court has created conditions leading to the death of hundreds of thousands in the Civil War, and millions at the hands of abortionists, by applying this doctrine.
But throughout our constitutional history, Congress has had the power under Article III, Section 2 to limit the Court’s jurisdiction. This power is integral to our constitutional balance of powers between the three branches of government. I’ve had to change my view. So long as Congress can determine jurisdiction for the Court, the doctrine of judicial review does not fundamentally alter the constitutional balance envisioned by the Framers because judicial review can be superseded by jurisdictional legislation.
It’s probably safe to conclude, however, that the Framers had a higher caliber of Congressman in mind than we’ve generally seen, people who would actually exercise the constitutional powers of their office. They must have anticipated statesmen with backbones would fill those offices – representatives who could and would limit the jurisdiction of the Court when necessary.
Obamacare is not an appropriate subject for Congress to consider removing from the Court’s jurisdiction. The American people need the Court to rule on the constitutionality of Obamacare for many sound reasons. The most proximate expression of the American people in national government - the nature of the House of Representatives - proved that Americans think this is a very bad law when the people dramatically changed the majority in the House after Obama’s roughshod passage of Obamacare.
Obama continues to misrepresent the American people and hardly a day goes by without him substantively adding to our peril. While legislative remedies remain effectively blocked, the Court is currently our last refuge from this tyrant.
To contrast, after the 50 million deaths they have enabled, the Roe line of cases deal with an appropriate subject for Congress to consider removing from the Court’s jurisdiction, however the House alone could never get such legislation passed through this Senate or signed by this President. This ongoing disaster should be enough to motivate Americans to change the majority in the Senate and to elect a President who would sign legislation to remove abortion from the Court’s jurisdiction, and at the same time pass a law to stop the killing.