“No Kings Act”: Democrats’ Cynical Bid to Bypass the Supreme Court

by Jonathan Turley

Senate Majority Leader Chuck Schumer (D., N.Y.) has introduced the “No Kings Act” with great fanfare and the support of most of his Democratic colleagues. Liberal groups have heralded the measure to legislatively reverse the ruling in Trump v. United States. It is obviously popular with the press and pundits. It is also entirely unconstitutional in my view. The “No Kings Act” is not just a cynical abdication of responsibility by Democrats, but would constitute the virtual decapitation of the Constitution.

I have previously written about the false claims made about the Supreme Court’s decision by President Joe Biden, Vice President Kamala Harris and other leading democrats. The press and pundits have reached a new level of sensationalism and hysteria in the coverage with MSNBC’s Rachel Maddow even claiming that it was a “death squad ruling.”

The Trump Decision

The Court actually rejected the most extreme positions of both the Trump team and the lower courts.

As it has in the past, the Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.

In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.

In this decision, the court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.

Where the coverage has been wildly inaccurate, the No Kings Act is cynically dishonest.

To his credit, President Joe Biden was at least honest in proposing a constitutional amendment to overturn the decision in Trump.  However, that was dead on arrival in Congress since under Article V it would require a two-thirds majority vote in both houses and then ratification by three-fourths of the states.

The Democrats are seeking to circumvent that process with simple majority votes with the No Kings Act.

The bill is being presented as a jurisdiction-stripping measure, not an effort to dictate outcomes.

Congress does have authority to change the jurisdiction of the federal courts.  That authority was recognized by the Court itself in Ex parte McCardle (1869). Chief Justice Salmon Chase ruled that it did have the authority “to make exceptions to the appellate jurisdiction of this court.”

However, Chase also emphasized that the law did “not affect the jurisdiction which was previously exercised” so that prior decisions would remain fully enforceable.

Moreover, shortly after McCardle, the Court ruled in United States v. Klein (1871), that Congress may not use its authority of court jurisdiction to lay out a “rule of decision” for the Supreme Court, or effectively dictate results in court cases.

The No Kings Act

The No Kings Act does more than just strip jurisdiction and makes no secret of its purpose in dictating the outcome of future cases.

It purports in Section 2 to “clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress.”

That is a rather Orwellian view of “clarification” since it directly contradicts the opinion in declaring in the very next section that “[a] President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress.”

Schumer and most of the Democratic senators actually believe that they can simply instruct lower courts to ignore a Supreme Court ruling on the meaning of the Constitution. It would undermine the basis of  Marbury v. Madison after 221 years.

To be sure, it is stated in strictly jurisdictional terms. Yet, it crafts the jurisdictional changes to mirror the decision and future immunity claims.

The bill declares that federal courts “may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.”

But the Democrats are not done yet. Section 4 actually removes the Supreme Court from such questions and makes appellate courts the effective highest courts of the land when it comes to presidential immunity:

“The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President.”

Notably, this is one of the wacky ideas put forward by the President’s Supreme Court Commission. After all, why pack the Court if you can just gut it?

Of course, some sponsors like Elizabeth Warren (D., Mass.) want to both pack the Court and strip it of authority. Presumably, once packed, the authority to act as a court would be at least restored with the liberal majority.

By making the D.C. Circuit (where most of these cases are likely to be litigated) the highest court of the land on the question, the Democrats are engaging in the rawest form of forum shopping. The D.C. Circuit is expected to remain in the control of Democratic appointees for years. (The Act expressly makes the D.C. courts the only place to bring a civil action in this area and states that “a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.”)

The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.

But wait there is more.

The No Kings Act reads like a fairy tale read by Democratic senators to their grandchildren at night. Not only would the evil conservative justices be vanquished by a lower court controlled by Democratic appointees, but the bill is filled with other wish list items from the far left. It would strip the Court of the ability to take other cases, to dismiss a criminal proceeding, to suppress evidence, and to grant a writ of habeas corpus, or “the Great Writ” that is the foundation of Anglo-American law for centuries.

The Democrats even legislatively dictate that any review of the law must meet a standard of its choosing. They dictate that “[a] court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional.”  Thus, even the clear and convincing provision of the Act must be subject to a clear and convincing evidence review.

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