Can the United States' Congress pass a statute (by simply majority of both houses, then signed into law by the President) which says:

Using the power granted to us by Article III, Section 2, clause 2 of the Constitution, the Supreme Court is henceforth regulated as follows:

Neither the Supreme Court nor any lower federal court, under their appelate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statute passed by Congress to be declared unconstitutional.

Congress would do so by exploiting its power under Article III, Section 2, clause 2 of the Constitution:

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

In case of a positive response to the question above, can Congress do so also regarding the Supreme Court original jurisdiction, although apparently the Constitution gives Congress the power to make exceptions and regulations against the Supreme Court only for appellate jurisdiction?

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    Congress can pass such a statute; the question is whether courts would obey it, and if not, whether the people and branches of government would respect court rulings of unconstitutionality anyway. So there'd be a constitutional crisis. Commented Sep 8, 2019 at 20:41
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    @NateEldredge I'm not sure that merely passing an unconstitutional law constitutes a constitutional crisis. Congress passes unconstitutional laws that courts strike down with some regularity that doesn't create a constitutional crisis. The constitutional crisis emerges only when the executive branch fails to obey the rulings of the federal courts that purport to be binding upon it and refuses to acknowledge or carry out court sanctions for doing so.
    – ohwilleke
    Commented Sep 9, 2019 at 2:04
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    Well, since Congress and the President approved the law, I'm assuming that they would consider that the court's striking down of this law is null and void, since the law itself forbids them to do it, and they would then continue to enforce any future laws that the courts might strike down. That's the crisis I have in mind. Commented Sep 9, 2019 at 3:56
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    @NateEldredge A determining factor on the power that the Supreme Court's decisions hold can come down to how much respect the other branches give those decisions, throughout history both the Executive, and Legislative branches have openly defied Supreme Court rulings, one of the best examples of this is Worcester v. Georgia, inwhich Andrew Jackson (President at the time) said: "John Marshall has made his decision now let him enforce it.". Commented Sep 9, 2019 at 6:20
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    Congress would probably prefer to enact statutes rather than erect statues.
    – muru
    Commented Sep 9, 2019 at 7:31

6 Answers 6


Congress can't override substantive rules of constitutional law

Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and in substance, this law seeks to change that interpretation of the scope of the judicial power, so that interpretation may not be overruled except via a Constitutional amendment.

Neither the Supreme Court nor any lower federal court, under their appellate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statue passed by Congress to be declared unconstitutional.

The language in italics is jurisdiction stripping language, which I discuss below, and which is also discussed in another answer.

But, the language in bold is enunciating a substantive rule of law regarding how the judicial branch may resolve a case that is otherwise properly before it. And, Congress does not have the power to change that to make the U.S. Constitution a dead letter under its Article III jurisdiction regulation powers.

The language in bold language is a direct attempt to overrule a binding interpretation of the U.S. Constitution and that is beyond the authority of Congress to do, so the statute would be unconstitutional, at least, in part.

Jurisdiction stripping

Yes, Congress can regulate the jurisdiction of the federal courts pursuant to Article III, Section 2 which states:

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 the Regulations as the Congress shall make.

But, there are parts of Article III that apply in addition to the power of Congress to create "Exceptions" the appellate jurisdiction of the U.S. Supreme Court, and the power to create and modify the "inferior courts" that exist.

The first sentence of Article III, Section 1 of the U.S. Constitution states:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts, as the Congress may from time to time ordain and establish.

This is crucial, and interacts with the Exceptions power. The default provision is that all judicial power as defined in Article III, Section 2 is vested in the "supreme Court" unless and until that power is instead vested in an "inferior Court" established under Article III that Congress creates by law.

Therefore, Congress does not have the power to deny every court (or even every federal court) both original and appellate jurisdiction over any constitutionally justiciable claim arising under Article III, even if the claim is not within the express original jurisdiction of SCOTUS. If they deny every inferior Article III federal court jurisdiction over something within the constitutionally defined scope of the judicial power, then it reverts to the original jurisdiction of the U.S. Supreme Court even though it is not expressly made a part of the U.S. Supreme Court's original jurisdiction.

The judicial power of the federal courts collectively is defined in Article III, Section 2 of the U.S. Constitution and extends to all cases arising under the U.S. Constitution which would include a claim to have a provision of federal or state law declared unconstitutional as in violation of the constitution. It says:

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; . . .

(This analysis is attributed to U.S. Supreme Court Justice Joseph Story.)

Now, this is not to say that Congress couldn't do something to make it harder procedurally to have statutes declared unconstitutional. For example, there would be a much harder claim of unconstitutionality if Congress vested original jurisdiction in all such cases in the United States in the U.S. District Court for the District of Wyoming, and then only assigned one judge to that district, and denied the U.S. Courts of Appeal or the U.S. Supreme Court, appellate jurisdiction over those decisions.

At some point, however, even this lesser restriction, rather than elimination of a judicial power would still be subject to challenge under the due process protections of the 5th Amendment.

Writ jurisdiction

Notably, Marbury v. Madison was a case brought in the original jurisdiction of the U.S. Supreme Court under a writ of mandamus, under the All Writs Act, and not in connection with its appellate jurisdiction.

So, Congress would also have to repeal or amend the "All Writs Act" to pull off the intent of the proposed statute, because the U.S. Supreme Court's original jurisdiction extends by statute to writs that are not appellate in nature even though this power is very rarely exercised.

A writ is a court order directed at a government official directing that government official to do something, or to refrain from doing something. But, there are many ways to back door a seemingly private cause of action, particularly one related to constitutionality, into a writ. And, if a court has jurisdiction over a writ, it has jurisdiction to entertain requests by litigants to have such writs issued.

Congress can't remove a state court forum

It is worth noting that every single state court from traffic court on up has concurrent jurisdiction with the federal courts to declare that a statute is unconstitutional, and that state courts frequently do declare state statutes to be unconstitutional.

Congressional jurisdiction to regulate jurisdiction is largely limited to regulation of the jurisdiction of the federal courts. It can put a federal question (e.g. copyright enforcement or disputes with the IRS) in the exclusive jurisdiction of the federal courts, but there are no cases in which Congress has been permitted to place a federal law in the exclusive jurisdiction of the federal courts while also denying any federal court jurisdiction over claims arising under that law. Otherwise, state court jurisdiction isn't regulated by Congress. And, the Constitution specifically requires all federal, state and local officials to swear to uphold the U.S. Constitution which arguably provides an independent basis for state court jurisdiction over constitutionality claims arising under the U.S. Constitution.

This is a really important point. For example, suppose that someone who lives in the same state as you do sues you entirely under state law in a state court, and that state's courts require you to bring any claim you have against that person in state court over which that state court has jurisdiction as a counterclaim or you forfeit that claim forever. If you have federal claims against the person who sued you in state court, and your claims are not one of the handful of issues (e.g. copyright enforcement) that are in the exclusive jurisdiction of the federal courts, you must enforce your federal claims against that person as counterclaims in that state court case, or you will lose them forever.

For example, suppose that your employer sues you in state court for conversion (i.e. stealing company property) and you have a right to sue the employer for not paying you the right amount for your overtime work under federal law. Then, you must bring your federal overtime claims in state court as counterclaims to the conversion action, rather than in federal court.

Similarly, even though state criminal charges are always brought in state courts, a criminal defendant in a state court criminal case, can raised arguments arising under the U.S. Constitution including a determination that a state criminal law is unconstitutional, in state court as a defense, even though the only federal court recourse a criminal defendant has is through an appeal to the U.S. Supreme Court or a post-conviction writ of habeas corpus brought in federal district court after all state direct appellate relief is exhausted, after petitioning to the U.S. Supreme Court, and after all state post-conviction relief (including petitioning the final state order to the U.S. Supreme Court) is exhausted. In practice, this means, criminal defendants have no meaningful access to the federal courts other than two petitions for certiorari to the U.S. Supreme Court which are discretionary, until they have been incarcerated wrongfully for five or ten years.

But, federal defenses can and routinely are raised in the state court trial (and indeed, federal defenses that could be raised in a state trial court may not be raised in a habeas corpus petition in federal court unless they were first raised in or before the original state court trial).

N.B.: Federal claims in the exclusive original jurisdiction of state courts

The extremes to which jurisdiction stripping is allowed are explored in the handful of claims arising under federal law that are expressly not within the scope of the jurisdiction of any federal trial court or intermediate appellate court, or within the express non-appellate jurisdiction of the U.S. Supreme Court.

The most notable of these are affirmative private individual civil lawsuits against offenders under the federal robocall and junk fax law (a.k.a. the Telephone Consumer Protection Act a.k.a. the TCPA a.k.a. 47 U.S.C. § 227), which do not not require a writ, which may only be brought in state court, subject to an ultimate appeal to the U.S. Supreme Court. But, the federal courts have exclusively jurisdiction over litigation many kinds of claims other than private civil actions arising under the TCPA.

This law is much less constitutionally concerning than the one proposed in the question, however, because while Congress can't repeal the U.S. Constitution, it doesn't have to pass a law giving private individuals a private cause of action when they receive robocalls or junk faxes at all. It could pass a law that was enforceable by the FCC alone, for example, and in the case of the TCPA, there are persons, including the FCC and regulated persons who want to challenge a regulation issued by the FCC, who are entitled to utilize the federal courts to enforce the TCPA or to dispute it.

For example, there is no private cause of action to enforce most federal criminal laws (as such, not just involving the same harm) with a civil lawsuit by the victim against the criminal, in either federal court or state court, but that is not unconstitutional. This is because federal criminal laws can be enforced by government prosecutors and defended against by private individuals, in Article III federal courts.

Also, even private causes of action under the TCPA are subject to ultimate U.S. Supreme Court appellate review, and the U.S. Supreme Court is an Article III federal court.

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    It should be noted that there is no consensus regarding Story's theory. Some legal scholars do believe that Congress has the authority to, say, eliminate all inferior courts and limit the Supreme Court to its original jurisdiction.
    – Brian
    Commented Sep 9, 2019 at 14:45
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    @Brian: There is also the more serious problem that this answer seems to suggest Congress may expand the original jurisdiction of the Supreme Court merely by stripping jurisdiction from the lower courts - but Marbury v. Madison quite explicitly says that Congress can do no such thing.
    – Kevin
    Commented Dec 2, 2023 at 21:36
  • @Kevin Good point. I think Story's theory is that such a law would be unconstitutional, while this answer claims that the law would be constitutional and would give the Supreme Court original jurisdiction over all types of cases mentioned in Article III, which is less plausible.
    – Brian
    Commented Dec 3, 2023 at 0:29


This particular attempt at jurisdiction stripping would fail as it attacks the Supreme Court’s original jurisdiction:

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.

However, providing it leaves original jurisdiction alone, Congress can (and has) restricted the courts appellate jurisdiction. For an example, see Ex parte McCardle.

  • I am not sure how "this particular attempt at jurisdiction stripping [...] attacks the Supreme Court’s original jurisdiction"? Congress is only regularizing the appellate jurisdiction, it is saying the Supreme Court will not hear appellate cases if those cases involve questions of constitutional legitimacy of an act of congress Commented Sep 8, 2019 at 23:05
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    @raffamaiden your question states that the supreme court couldn't override Congress. If your question only asked about a law limiting federal district and appellate courts the answer might be different.
    – Andy
    Commented Sep 8, 2019 at 23:13
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    Right conclusion. I would be inclined to advance the theory for its correctness being that Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and that is substance this law seeks to change that interpretation of the scope of the judicial power.
    – ohwilleke
    Commented Sep 8, 2019 at 23:43
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    @raffamaiden because the court also has appellate jurisdiction where it has original jurisdiction.
    – Dale M
    Commented Sep 9, 2019 at 0:10

Yes and no.

Legally, no: Generally speaking, Marbury holds that it is the constitutional duty of the courts to interpret the law, including the constitution:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each.

So when a court has authority to hear a case whose resolution requires a determination of constitutional law, that court has the duty under Marbury to make that determination. Congress may not legislate around that duty.

Legally, yes: But that assumes that the court has the authority to hear the case, and Congress does have authority to say what kinds of cases the lower courts may hear. So while it can't tell the lower courts, "Don't answer constitutional questions, no matter when they come up," it can reduce the number of ways in which it could come up. So it could say that district courts have no jurisdiction over cases seeking invalidation of laws on constitutional grounds, or over civil-rights cases alleging that the government has acted unconstitutionally, or over election cases, etc.

But those cases would still need to be resolved, and so they would be left to the Supreme Court.

Practically, no: Even if Congress could implement this proposal, doing so would cause quite a few problems.

Every case has at least three constitutional questions -- subject-matter jurisdiction, personal jurisdiction, standing, and likely many more -- that must be resolved. Stripping the lower courts of jurisdiction to consider them would mean that you're kicking hundreds of thousands of cases to the Supreme Court every year.

Constitutional questions are everywhere, and there is no avoiding them in modern litigation. Virtually every criminal case in federal court will have multiple additional dimensions that implicate constitutional law:

  • whether the arrest and seizure of evidence were consistent with the Fourth Amendment,

  • whether the defendant's statements were obtained consistent with the Fifth Amendment,

  • whether the Defendant is entitled to a jury trial or a bench trial under the Sixth Amendment,

  • whether proffered hearsay evidence violates the Sixth Amendment,

  • whether the sentence violates the Eighth Amendment,

  • and on and on and on.

Civil cases are less dependent on constitutional questions, but not by that much. Civil rights cases, bankruptcy cases, immigration cases, patent cases, copyright cases, trademark cases, and prisoner petitions are all heavily dependent on constitutional interpertation.

So even if this proposal were constitutional, it would go nowhere because it would effectively shut down the entire system.


Several of the answers beg the question that was asked, as least with respect to the question of whether or not the courts can making a binding declaration that laws are unconstitutional. Judicial review as we know it was established in Marbury v. Madison. If you accept Marbury, then it and everything after it is "binding". But prior to Marbury it was an open political question of which branch or branches of Government would be responsible for determining the constitutionality of law, with some prominent Framers favoring the Legislative, Executive, or both Legislative and Executive sharing the power. The Court in some sense gave itself the power of judicial review

With that history and our system of checks-and-balances, I don't see why it would be inherently unconstitutional to claim that the Court exceeded its powers granted explicitly by the Constitution and for the other branches to use their powers to try to circumvent that (alleged) "excess" including through an ordinary law passed by Congress and enforced by the President.

BUT, Marbury v. Madison has, of course, been more or less respected precedent for most of the country's history, so it would not be politically or practically easy to throw it away with the type of law that you described. If such a law were passed, presumably the Court would declare it unconstitutional, and the checks-and-powers between the branches would come into play. The Executive could choose to enforce such a decision or not. Congress could continue to pass such laws or try to achieve its (hypothetical) goals by how it appropriates funding to the Executive or the Courts.

As regards the part of your question about jurisdiction to hear cases at all, the other answers look right. Congress has some limited powers to modify this, but the Supreme Court has a certain amount of jurisdiction granted directly by the Constitution that could no be circumvented by a regular law.

  • Answers beg the question because judicial review may be seen as a classic chicken-or-egg paradox. Without Marbury, judicial review doesn't exist, but without judicial review, Marbury is empty. +1 for pointing this out, but I certainly don't trust the other two branches to do a better job of complying with the constitution than the judiciary. Even if the judiciary disavowed the ability to declare entire laws unconstitutional, or lost it through other means, there would still be the power, analogous to UK courts, of finding something "unconstitutional as applied" in a particular case.
    – phoog
    Commented Sep 15, 2021 at 13:25

Constitutions can be changed

I'll attempt to answer the sub-question of can Congress do so also regarding the Supreme Court original jurisdiction.

In essence, Congress can take away things that are granted by 'ordinary law' (i.e. Congress) but can't directly take away things that are granted by the Constitution.

However, the Constitution is not set in stone - it has been modified many times already. If Congress believes that the Supreme Court should have less power, it can propose a constitutional amendment and, provided it gains the necessary support in both houses and approvals from 3/4 of states, it would be binding.

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    As the OP asked, the question supposes congress can pass the poposed bill in both houses with 51% of majority, so while this answer would be valid way to overturn SCOTUS decisions, it fails the OP requirement of simple majority passage.
    – hszmv
    Commented Sep 9, 2019 at 20:23
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    It is however correct and has been used at least once in previous history. The 14th Amendment patched a loophole in states claiming powers that were expressly barred from Federal Powers by the Constitution. While the Constitution does mention slavery, it never gave the regulatory power of slavery to the Federal Government, so states could claim it. The 14th Amendment basically changes the 10th amendment and gives states any power not explicitly denied to the Federal Government (patching up this loop hole, but also states having religion tests.for office or laws limiting free speech).
    – hszmv
    Commented Sep 9, 2019 at 20:29

From clarifying comment on question

Congress would just establish a Constitutional Committee, that would be composed by prominent scholars and that would examine all laws before they are voted upon by Congress. Congressman and congresswoman, being persons of their words, would promise not to vote for a law which was deemed unconstitutional by the Committee.

This cannot succeed. The power to overturn unconstitutional law must fall under Article II or Article III (or Amendment X but you'd have to remove Amendment XIV first). It cannot be an Article I power because this violates the principles of the Constitution. Separation of Powers must exist.

Historically (before Marbury vs. Madison) this power rested in the jury. All cases brought under the Sedition Act (which was clearly unconstitutional) ended in dismissed by prosecution or Jury Nullification. Jury Nullification cannot and does not set precedent.

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