I recently wrote an article about the successful stonewalling by the Internal Revenue Service of congressional inquiries into the IRS’s handling of applications for tax-exempt status submitted by conservative organizations. The IRS has proven itself to be utterly immune to Congress. It has told Congress: “Go fish.”
My point was simple: the only real clout that Congress has when dealing with an executive agency is to cut its budget in the following year. Congress never does this, because Congress always expands the power of the federal government. This is a way of life for Congress. So, because it has abandoned the one effective negative sanction that it possesses over federal executive agencies, Congress is impotent when dealing with executive agencies.
I then went on to point out that the United States Constitution grants Congress full authority to remove almost any area of life from the jurisdiction of the United States Supreme Court and all federal courts.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. 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.
This is never taught in the state’s schools. It is never mentioned in public discourse. The etiquette of public debate on the issue of federal sovereignty, especially congressional sovereignty, has eliminated this topic from consideration. If the voters ever really understood that they have the power, through Congress, of getting the Supreme Court out of their lives on issues of real interest, this really would constitute a political revolution. The Framers of the Constitution never wanted the Supreme Court to have final jurisdiction. But this fact has been dropped down the public school memory hole for well over a century.
When Ron Paul used to bring up the issue of the constitutionality, or lack thereof, of some bill that the House of Representatives was considering, the standard answer of his colleagues was this: “We pass the bills, and the Supreme Court decides whether they are constitutional.” Congress had abandoned its own legitimacy, which the Constitution grants to Congress.
Today, the suggestion that Congress has the authority to remove virtually anything from consideration by the Supreme Court would be regarded as totally illegitimate. It doesn’t matter what the Constitution says; the talking heads of the media do not like Congress. They much prefer the court system, which is almost immune from the wishes of the electorate. So, they talk as though the court system has superior sovereignty to that possessed by Congress. This is clearly an unconstitutional position, yet it is almost universally accepted by all members of the public. Conservatives never raise the issue. The pro-life movement never raises the issue. It is considered out of bounds. More than this, it is virtually forgotten. It is not simply that this position is considered a fringe position; it is not recognized as a position.
This raises the issue, which is fundamental, of political legitimacy. There is no question that the United States Constitution grants control over the court system to Congress. The President of the United States has nothing to say about this, constitutionally speaking. Neither does the Supreme Court. The public does not understand this. So, the public imputes a degree of final sovereignty to five members of the Supreme Court that is not derived from the United States Constitution, and which is in flagrant opposition to the common law system of law which governed Anglo-American law up until John Marshall in 1803: Marbury v. Madison.
The doctrine of judicial review was never considered at the Constitutional convention. The United States Supreme Court was considered the third leg of the federal stool, and the weakest of all the legs. The doctrine of judicial review was invented by Chief Justice Marshall, who was by far the most important advocate of federal centralization of power in the history of American political leadership. Franklin Roosevelt was a piker on this issue, when compared to Marshall. Marshall asserted the final authority of the Supreme Court over the legal and political system of the United States government, and there was no opposition to this. He got away with it. It was the greatest political heist in the history of the United States after 1788. It was strictly political. He was a Federalist. He was the last of the Federalists. In the name of federal judicial sovereignty, he arrogated to the Court massive political power. Step-by-step, case-by-case, he centralized power until his death in 1835.
This transfer of political sovereignty to the Supreme Court could have been challenged. It wasn’t. It was not inherent in the Constitution. But Marshall’s decision in Marbury v. Madison gained instant legitimacy, because it favored the short-term political interests of the politically dominant Jeffersonians. They let Marshall get away with this, and in only one case did the Supreme Court face a successful challenge to this illegitimate heist of legitimacy. That was in 1869, during Reconstruction: Ex Parte McCardle. That case has gone down the memory hole.
(For the rest of my article, click the link.)