Chuck Schumer’s plan to create a constitutional crisis

But three days after Biden’s push, Senate Majority Leader Charles E. Schumer (D-N.Y.) released legislation that shows Democrats are thinking quite seriously and ruthlessly about how to vitiate the Supreme Court’s role as a meaningful actor in the constitutional order. “We have a very strong argument that Congress by statute can undo what the Supreme Court does,” said Schumer of his No Kings Act — which focuses on presidential immunity but offers a road map for turning the judiciary into the plaything of the legislature on any matter of constitutional controversy.

The legislation claims to overturn the Supreme Court’s decision in Trump v. United States (and then some) by declaring that a court overseeing the criminal prosecution of a president “may not consider” whether the charged conduct was within the president’s “conclusive or preclusive constitutional authority.” So: The Justice Department would have an explicit go-ahead to bring indictments for presidential acts such as ordering military strikes overseas or reallocating funds by executive order, so long as prosecutors can find a criminal law broad enough to plausibly apply. Charged ex-presidents could not even raise their constitutional prerogatives as a defense.

That would be unconstitutional and absurd — as Biden Justice Department lawyers, who took a more moderate approach, recognized when they argued Trump v. United States. But it isn’t even the most radical part of Schumer’s legislation. The bill also would strip the Supreme Court of authority to decide whether it complies with the Constitution: “The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.”

Instead, the U.S. Court of Appeals for the District of Columbia Circuit (presumably chosen because it has a greater share of judges appointed by Democratic presidents than the Supreme Court) would have final say, and even that court could not rule against the legislation absent “clear and convincing evidence” that it is unconstitutional. In other words, a favored appellate court would become the Supreme Court for the purposes of this bill, with direction from Democrats to not look too closely at the constitutional particulars.

Schumer is threatening a breathtaking power grab. Yes, the Constitution authorizes Congress to make “exceptions” to judicial review, and there is an academic debate about the scope of that authority. You don’t need to familiarize yourself with it to see that this is not a plausible use of that or any constitutional provision.

The Constitution vests “the judicial power of the United States … in one supreme Court.” Schumer’s legislation would order lower courts to ignore a specific constitutional holding of the Supreme Court. It proposes to bar the Supreme Court from hearing certain criminal appeals brought by any president convicted of a crime. This isn’t an effort to regulate the court’s jurisdiction for reasons of efficiency or some limited policy aim; it’s a direct attack on justices’ ability to referee critical conflicts between the executive and legislative branches.

If Congress can do all this, it can, in effect, destroy “the judicial power” that the Constitution created. Congressional majorities could pass any number of laws infringing on due process, free speech or other constitutional rights and prevent those targeted from seeking meaningful relief in court. The whole constitutional plan of dividing power — which presumes a judiciary as an independent check on the other two branches — would be fundamentally sabotaged.

There certainly exist principled, revolutionary arguments against judicial review, and indeed against the Constitution itself. But the fact that such radical legislation can be introduced by the Senate’s majority leader (and be co-sponsored by supposed moderates such as Delaware’s Chris Coons) ought to put to bed the notion that Democrats are the party of norms, institutions or the constitutional order as it has existed for at least a century.

We are witnessing a case study in tit-for-tat constitutional escalation. President Donald Trump’s effort to have his 2020 election loss overturned in Congress was radical and unprecedented. That led the Biden administration to bring a sprawling election-season prosecution against Trump, who was then Biden’s opponent. That flawed and rushed case prompted the Supreme Court to issue a sweeping immunity opinion last month intended to create guardrails for presidential prosecutions.

In response, some Democrats are apparently willing to risk a constitutional crisis to confront the Supreme Court. If they win the White House and both chambers of Congress in November, they could have that chance. There are no leaders on the horizon who seem equipped to wind down this escalation. But those political elites who claim to support Democrats for “rule of law” reasons ought to at least consider what it means if their preferred party passes legislation ending judicial independence as we know it — and the kinds of partisan escalation that could come next.