Following the Supreme Court case Schweiker v Chilicky, can’t congress theoretically violate the Constitution as long as Congress provides a remedy?

What I mean is that: If I were a congressman, and a law that I wanted to pass violated, let’s say, the First Amendment, can’t I create a provision within the law that creates a commission to review all alleged violations of the 1st amendment under the law, but make the commission extremely biased, as to allow for 1st amendment violations?

  • Can you add a link to the case or some analysis of it?
    – phoog
    Mar 29, 2022 at 11:18
  • Wanting to pass a law is not necessarily the same as getting a law passed.
    – user35069
    Mar 29, 2022 at 11:44
  • @Rick the question asks whether a particular system for reviewing violations would enable a hypothetical law to survive a constitutional challenge in the courts. The question is already hypothetical, so it doesn't add anything to consider whether the law could be enacted; we can just assume that it would be.
    – phoog
    Mar 29, 2022 at 12:23

1 Answer 1



Congress could establish some sort of review board to address First Amendment violations, but it could not do so in such a biased way as to ensure there are no consequences for those violations, for at least two reasons:

  1. First, due process would require that any commission Congress established provide not only an opportunity to be heard by the commission, but also an impartial tribunal. The tribunal would not need to be perfectly unbiased, but setting up an "extremely biased" panel would be insufficient.
  2. Second, even if Congress established a commission that satisfied due process, Schweiker v. Chilicky, 487 U.S. 412 (1988) would only prevent the courts from awarding monetary damages against the federal government; the courts would still be free to grant equitable and extraordinary relief to address First Amendment violations. So under Schweiker, if Congress established a commission to pre-screen all Facebook activity, you probably could not get money damages based on sales you might have expected to make if the commission had approved your Facebook ads faster, but you could get an injunction (or perhaps a writ of mandamus or prohibition) to stop the commission from screening your ads in the first place.

The court's handling of First Amendment violations can often be different because free-speech rights are such a fundamental requirement of our form of government, but the analysis would be roughly the same for violations of Second Amendment or Third Amendment or Eighth Amendment rights.

  • I do not understand your first point about how Congress would need to grant Due Process. Didn’t the Respondents claim that the Government violated their Due Process rights, and yet, the Court said that no matter whether or not Congress made an insufficient remedy, a right to monetary relief still didn’t exist?
    – Oh Yea
    Apr 1, 2022 at 22:03
  • That's not the way I read it. As I understand Schweikert, monetary relief could have been available if Congress had established a remedy but not one that satisfied due process.
    – bdb484
    Apr 2, 2022 at 15:24

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