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Senate Energy and Natural Resources Committee Chair Joe Manchin (D-WV) discusses Federal Energy Regulatory Commission pipeline and liquefied natural gas capacity approvals during a hearing on Capitol Hill, May 4, 2023.
The debt ceiling deal is making its way through Congress. After a House Rules Committee vote on Tuesday, it is scheduled for a full vote in the House on Wednesday. It will certainly need some Democratic support, but expectations are that it will make it through.
My colleague David Dayen has already outlined the details of the deal here. So I’d like to dive into one small detail: its restrictions on judicial review. It turns out that when the politics line up, Congress has powerful options to restrict judicial overreach.
I have previously argued against the very concept of judicial review altogether, but there are many other options to rein in the Court short of that step. One of them is controlling or removing the jurisdiction on specific legislation, in keeping with the Constitution’s stipulation that the Court has final appellate jurisdiction but “with such Exceptions, and under such Regulations as the Congress shall make.”
The debt ceiling bargain has two instances in which judicial review powers are stripped. The first has to do with administrative PAYGO rules, which put into law a principle previously only in executive orders. It requires that every new agency regulation that costs money would have to be offset by the agency eliminating another regulation of equal cost. That would create a one-way ratchet for deregulation.
But according to the language of the bill, the Office of Management and Budget can waive these PAYGO rules in fairly broad fashion, and if Republicans or corporations don’t like it, there’s not much they can do. That’s because Section 267 reads: “No determination, finding, action, or omission under this title shall be subject to judicial review.” This insulates OMB from court reversals. So a potentially scary addition was neutered, by stripping judicial review from it.
The second instance is just as important. The debt ceiling deal grants Sen. Joe Manchin (D-WV) expedited approval for his beloved Mountain Valley Pipeline, directing the secretary of the Army to “issue all permits or verifications necessary” within 21 days to get construction and eventual operation started. It then protects that directive by stipulating “no court shall have jurisdiction to review any action taken” by basically any agency that might be involved in the approval process, “including any lawsuit pending in a court as of the date of enactment of this section.”
Then that jurisdiction-stripping measure is further protected by granting the D.C. Circuit Court “original and exclusive jurisdiction over any claim alleging the invalidity of this section or that an action is beyond the scope of authority conferred by this section.” Readers won’t be surprised to learn that the Mountain Valley Pipeline has faced major legal troubles, particularly on the Fourth Circuit. Even the Supreme Court recently ruled against its developers. But it’s had a comparatively better time before the D.C. Circuit.
In other words, Congress said that nobody gets to hold up this pipeline in court, and if you disagree, take it up with the most pro-pipeline bench in the country.
It’s extremely depressing that the approval of an objectively horrible pipeline gets end runs around judicial power. It’s mildly better that a pretty terrible regulatory burden was also extinguished through the same maneuver. And it’s actually really good that Congress is relearning that it has options to fight judicial tyranny. The bipartisan infrastructure law also included jurisdiction stripping, giving the D.C. Circuit exclusive review of executive branch decisions on broadband funding, and limiting any reversal of them unless they involved official corruption or fraud.
This brings us closer to our constitutional past. As law professor Stephen Vladeck writes in his excellent new book The Shadow Docket, Congress has exercised this power over jurisdiction before, and in much more serious cases.
Probably the most relevant example was the 1868 case Ex parte McCardle. This had to do with a Mississippi journalist, William H. McCardle, who published inflammatory articles attacking the post–Civil War government, and was arrested for violating the Reconstruction Acts. He filed a habeas corpus petition, which made it before the Supreme Court. When oral arguments seemed to suggest the justices were sympathetic to McCardle, Radical Republicans in Congress, fearing the Court would overturn its whole Reconstruction system, quickly passed a law stripping the Court’s jurisdiction from the case. President Andrew Johnson vetoed the law but was overridden. The Court then unanimously voted down McCardle’s appeal, admitting it had no authority to decide.
This is more or less how the constitutional separation of powers is supposed to work. Congress, the president, and the courts all check and balance each other, but with Congress predominating in the last analysis. Congress is the first branch mentioned in the Constitution, and it is granted by far the most formal authority. It sets up and funds the court system through statute, and can override a presidential veto with sufficient unanimity.
The framers of the Constitution assumed that members of Congress would instinctively guard their institutional power. The “great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others,” wrote James Madison in Federalist No. 51. Thus the judiciary “will always be the least dangerous to the political rights of the constitution,” wrote Alexander Hamilton in Federalist No. 78, because it has neither the ability to write legislation nor control of the military.
Instead, as America has developed disciplined political parties, one of which is pathologically timid and the other totally deranged, Congress has all but ceased to function. Thanks in part to the checks and balances between its chambers, it can barely pass a budget, let alone mount a content-neutral defense of its prerogatives. As a result, power has flowed to the Supreme Court—many of whose decisions turn on tendentious statutory misinterpretations that could theoretically be fixed with a new law but in practice hardly ever are.
Still, it’s worth emphasizing that Congress can and should return to the center of American government. Right now, it may take a bizarre set of circumstances like the debt ceiling hostage negotiation happening in a closely divided Senate to get any restrictions on Court power. But Democrats may hold full control of the government again someday. If and when they do, they should put the Court back in its proper place.
