Let's say the US Congress is passing a law. They are afraid that it would be declared unconstitutional in court, so they add an addendum saying "It is illegal for the Supreme Court to try this particular law in court."

Now, the law is obviously unconstitutional, since the Supreme Court has a constitutional power to try any law in court. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. But if the Supreme Court can't try the law, it can by definition never get declared unconstitutional by them.

My question is, who could then? Is there a check/balance in place that would allow that would allow the law to get declared unconstitutional?

  • Relevant: en.wikipedia.org/wiki/Jurisdiction_stripping Commented Jan 10, 2018 at 23:20
  • @NateEldredge Interesting. The main difference between my scenario and Jurisdiction stripping is that Jurisdiction stripping is an expressly legal power of Congress, whereas in my question Congress is explicitly doing something illegal (and my question is who has the right to stop them). Commented Jan 10, 2018 at 23:23
  • South Carolina did this. en.m.wikipedia.org/wiki/Ordinance_of_Nullification
    – user662852
    Commented Jan 11, 2018 at 4:11
  • Why is your scenario different from jurisdiction stripping? Seems to me, "It is illegal for the Supreme Court to try this particular law in court." is no difference from "the Supreme Court shall not try this particular law in court." If Supreme Court acts, then it violates the statute no matter which version Congress adopted.
    – xuhdev
    Commented Dec 28, 2018 at 8:10
  • @xuhdev because jurisdiction stripping doesn't apply to the Supreme Court Commented Dec 28, 2018 at 14:31

1 Answer 1


Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance.

Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand):

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.

The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship.

For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court.

There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States.

In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden.

That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so.

You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact.

  • US Judges are also notoriously territorial when it comes to the separation of powers and will be more than happy to strike the provision saying the law is exempt from Judicial Review down, and then the law itself just to spite the legislature and/or executive. Telling a judge what to do in their own court is the quickest way to get him to side against you.
    – hszmv
    Commented Jan 11, 2018 at 13:28
  • @hszmv I've seen some pretty awful cases in which U.S. judges have upheld laws holding that their courts have no power of judicial review, particularly in areas such as immigration, habeas corpus, ERISA, international law, and the federal arbitration act (and on standing grounds in a great many areas of public law - e.g. the U.S. border guard who murdered a Mexican by shooting him across the border in Mexico from the U.S. for no justifiable reason, and the recent enoulements lawsuit).
    – ohwilleke
    Commented Jan 11, 2018 at 13:32
  • There are some reasons for this as a case must have Jurisdiction, Standing, and Actual Injury to go forward (aka, you can't sue for equal treatment of Space Aliens on the grounds that if they show up their rights might not be protected because you're not a space alien (Standing) and aliens haven't shown up or had their rights violated (Actual Injury)). It's not that they don't want to have Judicial Review, but rather that the ball is in another court (pun intended). A judge who tries this could run afoul of another territorial judge who can cause him/her trouble.
    – hszmv
    Commented Jan 11, 2018 at 13:48
  • The examples I cite largely divest the judiciary entirely of subject matter jurisdiction, just as any other jurisdiction stripping provision would, and yet they are enforced faithfully.
    – ohwilleke
    Commented Jan 11, 2018 at 13:51
  • True, but in the case of United States v. Klein, Congress may not use such provision if the law would invalidate a previously decided case (at issue the interpretation of Presidential Pardon) nor can the law be made to invalidate a provision of the constitution, or to put a case in the favor of the United States (though they may change the law of cases that are still being decided where they are not the appellant of respondent). Thus the provision would not be constitutional under the clause you cited if the rest of the law is unconstitutional.
    – hszmv
    Commented Jan 11, 2018 at 15:05

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