The U.S. Constitution establishes the Supreme Court in Article III. Congress, in Article I, Section 8, was authorized to (and did)
constitute tribunals inferior to the Supreme Court. These are the Federal District Courts, the Federal Appeals Courts, the Court of Claims, and so on.
Section 2 of Article III lays out the kinds of cases that the Supreme Court (and the Congressionally-established inferior courts) can hear. Cutting through all the bullshit, the Federal Courts can adjudicate cases and controversies arising under the Constitution, U.S. laws, treaties, cases involving ambassadors and other federal government officials, admiralty and maritime cases, cases in which the Federal government is a party, controversies between the states or citizens of different states, and a few other oddball situations.
The hole or Achilles heel of the Constitution as regards the Federal courts is that they are only allowed to adjudicate cases and controversies. It has to be an actual case. They are not under the current interpretation of Section 2 permitted to render advisory opinions, declaratory judgments, or otherwise make a binding ruling on whether a law (or action of some government official) is simply unconstitutional.
So when, for example, Congress passes a law that may be unconstitutional, there is no way of going to some court ideally the Supreme Court to determine whether the law is constitutional or not. Even if a law is blatantly unconstitutional (and thus a violation of the oath of office of the Congresspersons who passed it and the President who signed it) we have to (1) allow the law to come into force, (2) wait until some person or entity has arguably been harmed by its enforcement, (3) have someone be convicted under the law, or file an action to have the law declared void, then (4) allow the case to wend its way through the Courts until if FINALLY gets to the Supreme Court. Sometimes the appeals process is accelerated, but sometimes not. Laws like McCain-Finegold, whose constitutionality has been in serious question from the word, go, have been in force for many years regardless.
Then when an actual case or controversy FINALLY gets to the Supreme Court, the Court is required and supposed to (a) look as narrowly as possible at the specific complaint and the specific portion of the law that is challenged, and (b) give Congress as much deference as possible in determining whether the law is unconstitutional.
The perverse result is illustrated rather clearly in the recent ruling on the Affordable Care Act in which the blatantly unconstitutional individual mandate was upheld as merely the imposition of a tax this despite the Administrations strident arguments in front of the Court that it was NOT a tax. Furthermore, the remainder of the law almost 2,000 pages in length remains in Constitutional limbo while being enforced to the extent that the President feels is appropriate on any given day.
And so it goes.
What we NEED is a Federal Court, established by Congress, with the power to rule immediately on the Constitutionality of laws and actions, without requiring an actual case before the court. Consider not only the ACA, but also this Presidents constant rewriting of laws, refusal to enforce laws, and executive orders which he has no Constitutional power to issue or enforce.
As in many such matters, the obstacle to creating such a court (or allowing the Supreme Court to rule in this way) is not the Constitution itself, but rather it is a court interpretation of certain words in the Constitution. It is the Courts interpretation that a controversy for Federal jurisdictional purposes requires actual aggrieved parties engaged in a prosecution or a suit. But this interpretation is certainly open to logical criticism and overturning. If a law is passed and almost half of the Congress believes that it is unconstitutional, that is a controversy in anyones eyes who is not blinded by arcane court precedents.
We need a Federal Court of Constitutional Review or some such thing probably an arm of the DC Circuit Court of Appeals, where any interested party can seek a binding Declaratory Judgment or advisory opinion on the Constitutionality of any new or existing law, or any action by a Federal official, regardless of whether there is a court case on the issue or not. Congress can certainly limit the courts jurisdiction so that it is not immediately flooded with bullshit cases from crackpots like me, but that court can provide an invaluable public service, and save both the government and the People a ton of money and many years of suffering with unconstitutional laws that have not yet come up for judicial review (such as various campaign finance laws now in effect).
It also would give Congress the opportunity to immediately rectify constitutional defects in new laws, to carry out the legitimate purposes of the laws without fear of later overturning on Constitutional grounds.
As I say, there is a big hole in the Constitution, and its high time we plugged it.
Section 2 of Article III lays out the kinds of cases that the Supreme Court (and the Congressionally-established inferior courts) can hear. Cutting through all the bullshit, the Federal Courts can adjudicate cases and controversies arising under the Constitution, U.S. laws, treaties, cases involving ambassadors and other federal government officials, admiralty and maritime cases, cases in which the Federal government is a party, controversies between the states or citizens of different states, and a few other oddball situations.
The hole or Achilles heel of the Constitution as regards the Federal courts is that they are only allowed to adjudicate cases and controversies. It has to be an actual case. They are not under the current interpretation of Section 2 permitted to render advisory opinions, declaratory judgments, or otherwise make a binding ruling on whether a law (or action of some government official) is simply unconstitutional.
So when, for example, Congress passes a law that may be unconstitutional, there is no way of going to some court ideally the Supreme Court to determine whether the law is constitutional or not. Even if a law is blatantly unconstitutional (and thus a violation of the oath of office of the Congresspersons who passed it and the President who signed it) we have to (1) allow the law to come into force, (2) wait until some person or entity has arguably been harmed by its enforcement, (3) have someone be convicted under the law, or file an action to have the law declared void, then (4) allow the case to wend its way through the Courts until if FINALLY gets to the Supreme Court. Sometimes the appeals process is accelerated, but sometimes not. Laws like McCain-Finegold, whose constitutionality has been in serious question from the word, go, have been in force for many years regardless.
Then when an actual case or controversy FINALLY gets to the Supreme Court, the Court is required and supposed to (a) look as narrowly as possible at the specific complaint and the specific portion of the law that is challenged, and (b) give Congress as much deference as possible in determining whether the law is unconstitutional.
The perverse result is illustrated rather clearly in the recent ruling on the Affordable Care Act in which the blatantly unconstitutional individual mandate was upheld as merely the imposition of a tax this despite the Administrations strident arguments in front of the Court that it was NOT a tax. Furthermore, the remainder of the law almost 2,000 pages in length remains in Constitutional limbo while being enforced to the extent that the President feels is appropriate on any given day.
And so it goes.
What we NEED is a Federal Court, established by Congress, with the power to rule immediately on the Constitutionality of laws and actions, without requiring an actual case before the court. Consider not only the ACA, but also this Presidents constant rewriting of laws, refusal to enforce laws, and executive orders which he has no Constitutional power to issue or enforce.
As in many such matters, the obstacle to creating such a court (or allowing the Supreme Court to rule in this way) is not the Constitution itself, but rather it is a court interpretation of certain words in the Constitution. It is the Courts interpretation that a controversy for Federal jurisdictional purposes requires actual aggrieved parties engaged in a prosecution or a suit. But this interpretation is certainly open to logical criticism and overturning. If a law is passed and almost half of the Congress believes that it is unconstitutional, that is a controversy in anyones eyes who is not blinded by arcane court precedents.
We need a Federal Court of Constitutional Review or some such thing probably an arm of the DC Circuit Court of Appeals, where any interested party can seek a binding Declaratory Judgment or advisory opinion on the Constitutionality of any new or existing law, or any action by a Federal official, regardless of whether there is a court case on the issue or not. Congress can certainly limit the courts jurisdiction so that it is not immediately flooded with bullshit cases from crackpots like me, but that court can provide an invaluable public service, and save both the government and the People a ton of money and many years of suffering with unconstitutional laws that have not yet come up for judicial review (such as various campaign finance laws now in effect).
It also would give Congress the opportunity to immediately rectify constitutional defects in new laws, to carry out the legitimate purposes of the laws without fear of later overturning on Constitutional grounds.
As I say, there is a big hole in the Constitution, and its high time we plugged it.
