I was viewing this video, which is the Crash Course on Government and Politics #22 : judicial Decisions

The teacher says:

"[Supreme Court] justices might be influenced by congress because they know that, unless the case involves the constitution directly, congress can respond to a decision overturning a law ... by passing a new law"

I don't understand. I thought that the Supreme court can strike down an act of congress only if it is unconstitutional. Don't you mean that by "judicial review"? So how the congress can respond by a decision overturning a law (which should imply that the law is unconstitutional) by passing a new law? Wouldn't the new law be unconstitutional as well?

  • The teacher must mean Congress can pass a new law that it the Supreme Court could not strike down as unconstitutional. In other words, Congress could correct the defect in the law. – GuitarViking May 26 '17 at 2:29

There are, in essence, two "layers" of federal law. The Constitution, and the body of laws passed by Congress.

The Constitution cannot be changed by Congress directly, and in any case, the process of doing so is, by design, slow and complicated.

A law, by contrast, can be altered, overturned, or replaced in technically as little as a day, if the leadership and majority of both houses of Congress and the Presidency are all on board and co-ordinate, although a few weeks is much more normal.

To give an example of what I mean, consider the (somewhat) recent executive decree made by President Trump to block entry from citizens of six countries to the United States. At the moment, it is being challenged in the court system at time of writing. There are several challenges pending at the moment: some of them based on Constitutional claims, others based on legal claims. For example, two particular challenges are based on violations of the Establishment Clause of the Constitution and of the Immigration and Nationality Act of 1965 (a law).

Let us, for the sake of argument, say that a majority of each of the houses of the US Congress supported the executive order. If the executive order was blocked on the basis of violating the Immigration and Nationality Act of 1965, Congress could repeal or amend the act to allow the executive order. (Congress made the act in the first place, and any thing Congress does, Congress can undo).

If the executive order was blocked on the basis of violating the Establishment Clause, Congress cannot re-write the Constitution (single-handedly; they can start the process but it also involves confirmation by a three-forths majority of states (either through legislatures or conventions).

EDIT: Upon re-reading your question and your comment, I would like to make this more clear. While the Supreme Court can only overturn a law on constitutional grounds (i.e. it violates a rule set forth in the Constitution), they can block applications and enforcement of the law on legal grounds (i.e. it violates a rule set forth in a law passed by Congress). The Supreme Court deals with more than "mere" Constitutional issues, as they are the ultimate court of appeal* for all federal cases in the US.

*Any federal case (and many state cases) can be appealed to the Supreme Court, however, the Supreme Court has the ability to decide which cases it wishes to hear.

  • Thanks now it makes more sense. Although the executive order should be an order and not a law, while the teacher talked about "a decision overturning a law". But I think maybe it's just badly worded. Does the power to overturn executive orders that contrast with Congress Statutes fall under "judicial review" or does it have some other name? – raffamaiden May 26 '17 at 14:14
  • @raffamaiden: Perhaps my example was bad, bringing up the executive order (although I thought that would be both a current example on which a lot of information could easily be found, due to its recent and controversial nature). An executive order is similar to a law in effect, although it is more restricted. The point is not that the executive order is being overturned; the point is that the REASON the order is overturned determines Congress's possible response. I will edit my answer to make this more clear. – sharur May 26 '17 at 16:19
  • Thanks. So let's suppose that in 2000 Congress make a law, called Law B. The Supreme Court finds that this law, Law B, contradicts a lae previously enacted by the same congress, Law A, in 1990, but law B does not explicitly overturn that law. Can the Supreme Court overturn law B, also if it isn't unconstitutional but just go against another law? And of course the Congress can respond by writing "Law A is overturned" in Law B2, or by canceling Law A directly, right? – raffamaiden May 26 '17 at 17:53
  • Otherwise I don't see how the Congress can overturn a LAW which is not unconstitutional – raffamaiden May 26 '17 at 18:05
  • @raffamaiden: That is correct. Also, a federal agency might produce rule C, to enforce law B, which conflicts with law A. In which case, Congress can pass a new law to overturn law B or overturn law A or modify either of them. (Although technically, the Congress in 2000 is a different congress from the one in 1990). However, Congress can overturn any LAW it so wishes, at any time, for any reason. What Congress has done, a future Congress can undo. (Unless you meant to write "Supreme Court" in your second comment). – sharur May 26 '17 at 18:11

Keep in mind that the U.S. Supreme Court usually is engaged in interpreting valid laws that are passed by Congress, rather than interpreting the U.S. Constitution or invalidating laws passed by Congress.

If a congressionally passed law, strictly interpreted, leads to an unwise or unfair result, the U.S. Supreme Court may nonetheless enforce it because Congress can fix the law to make it more fair. For example, the U.S. Supreme Court has held that retirement plans governed by federal pension law (ERISA) are not subject to state probate law provisions that invalidate beneficiary designations upon divorce that are present in almost every state. But, while this result is often unfair, it is one that Congress can change any time it turns its attention to this issue.

But, when the U.S. Supreme Court interprets the constitution, that can't be amended easily, so the U.S. Supreme Court is more reluctant to interpret the U.S. Constitution in a manner that leads to an unwise or unfair outcome. A famous quote expressing this idea is that "The Constitution is not a suicide pact."

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