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The Supreme Court’s stunning decision this summer interpreting the Constitution to give presidents broad immunity from federal criminal laws is only the latest of its many opinions undermining Congress’s efforts to protect constitutional democracyubet63, from its 19th-century invalidation of federal civil rights laws to its more recent curbing of the Voting Rights Act.
Today even Americans who decry these opinions largely accept the idea that the court should have the final say on what the Constitution means. But this idea of judicial supremacy has long been challenged. And the court’s immunity decision has set in motion an important effort in Congress to reassert the power of the legislative branch to reject the court’s interpretations of the Constitution and enact its own.
“Make no mistake about it: We have a very strong argument that Congress by statute can undo what the Supreme Court does,” Chuck Schumer, the Senate majority leader, said recently as he announced the introduction of the No Kings Act. The measure declares that it is Congress’s constitutional judgment that no president is immune from the criminal laws of the United States. It would strip the Supreme Court of jurisdiction to declare the No Kings Act unconstitutional. Any criminal actions against a president would be left in the hands of the lower federal courts. And these courts would be required to adopt a presumption that the No Kings Act is constitutional.
It might seem unusual for Congress to instruct federal courts how to interpret the Constitution. But the No Kings Act follows an admirable tradition, dating back to the earliest years of the United States, in which Congress has invoked its constitutional authority to ensure that the fundamental law of our democracy is determined by the people’s elected representatives rather than a handful of lifetime appointees accountable to no one.
Should the No Kings Act pass, it would take its place among a constellation of occasions when Congress protected its more democratic interpretation of the Constitution.
As Congress considers the No Kings Act, it should not just embrace the presumption that its laws are constitutional but also institutionalize it.
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