The Power Congress Forgot It Had
Article III of the Constitution gives Congress an extraordinary power over the Supreme Court—one that could neutralize the Court’s most extreme decisions without adding a single justice, imposing term limits, or amending the Constitution.
It’s called jurisdiction stripping, and it works like this: Congress can remove the Supreme Court’s power to hear certain categories of cases, preventing the Court from imposing its will on issues where it has overreached.
Presidential immunity? Strip it. Gun rights extremism? Strip it. Attacks on abortion rights, voting rights, or administrative agencies? Congress could remove all of them from the Court’s appellate jurisdiction with a simple majority vote.
The Constitution explicitly grants Congress this power. The Supreme Court has upheld it. And Congress has used it before—most famously during Reconstruction.
But jurisdiction stripping is described by critics as “the moral equivalent of nuclear war” and praised by supporters as “the ultimate democratic check on unelected and unaccountable judges.”
Is it a legitimate tool for restraining judicial overreach? Or a dangerous attack on separation of powers? The answer is: both. And that’s exactly what makes it so consequential.
The Constitutional Basis: The Exceptions Clause
Article III, Section 2 of the Constitution establishes the Supreme Court’s jurisdiction in two categories: original jurisdiction (cases the Court hears first) and appellate jurisdiction (cases on appeal from lower courts).
But here’s the key language: The Court has appellate jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make.”
This is the Exceptions Clause. Congress and the Court have construed this provision to grant Congress significant control over the Court’s appellate jurisdiction.
In plain English: Congress can make exceptions to what the Supreme Court can review. It can remove entire categories of cases from the Court’s power.
What Congress Can Do
Congress possesses significant power to prevent Supreme Court appellate review by limiting the federal courts’ jurisdiction over certain classes of cases, or even specific cases.
Congress could pass a law saying:
- “The Supreme Court shall have no appellate jurisdiction over cases involving presidential immunity”
- “Federal courts shall have no jurisdiction to review state laws regulating abortion”
- “The Supreme Court shall have no appellate jurisdiction over Second Amendment challenges to gun regulations”
What Congress Cannot Do
There are important limitations:
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Original Jurisdiction: Congress may not strip the Supreme Court of jurisdiction over those cases that fall under the Court’s original jurisdiction defined in the Constitution (disputes between states, cases involving ambassadors, etc.)
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Rule of Decision (Klein Doctrine): The Supreme Court held in United States v. Klein that Congress may not, by limiting appellate jurisdiction, dictate a “rule of decision” that undermines the independence of the judiciary
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Constitutional Protections: Even broad interpretations acknowledge limits including the Due Process Clause and prohibitions against discrimination
But within these limits, Congress’s power is vast.
The Historical Precedent: Ex Parte McCardle
Jurisdiction stripping isn’t theoretical. Congress has done it—and the Supreme Court validated the power.
The Case
During Reconstruction after the Civil War, William McCardle, a Mississippi newspaper publisher, was arrested by a military commander for printing articles opposing Reconstruction laws.
Congress had expanded federal habeas corpus jurisdiction, allowing people detained by state authorities to challenge their detention in federal court. McCardle used this law to appeal to the Supreme Court.
Congress Acts
Anticipating that the Court might void, or at least undermine, congressional reconstruction, Congress overrode President Johnson’s veto to repeal the statute that authorized McCardle’s appeal—while his case was pending before the Supreme Court.
Think about that: Congress literally removed the Court’s jurisdiction over a case the Court was actively considering.
The Court Backs Down
In Ex parte McCardle (1869), Chief Justice Salmon Chase, writing for a unanimous Court, validated Congress’s action.
The Court held that under the Exceptions Clause, Congress has the authority to withdraw the Supreme Court’s appellate jurisdiction to review decisions of lower courts.
Chase emphasized that jurisdiction “is conferred ‘with such exceptions and under such regulations as Congress shall make.’”
The message was clear: when Congress strips jurisdiction, the Court must comply.
The Limitation
Importantly, Chase noted that the 1868 statute repealing jurisdiction “does not affect the jurisdiction which was previously exercised.” Congress removed one avenue of appeal but didn’t eliminate all avenues.
In the follow-up case Ex Parte Yerger, the Court held that although Congress had revoked jurisdiction under the 1867 Habeas Corpus Act, the Court could still hear habeas cases under previous laws.
This suggests a constitutional floor: Congress probably can’t eliminate all judicial review of constitutional questions. But it can certainly eliminate Supreme Court review of specific categories.
Modern Proposals: The No Kings Act and Beyond
The concept isn’t just historical. Congress is actively considering jurisdiction-stripping legislation right now.
The No Kings Act
After the Supreme Court’s Trump v. United States decision granting presidents broad immunity, legislators proposed the “No Kings Act,” which would:
- Deprive the Supreme Court of appellate jurisdiction to enforce the immunity recognized in Trump v. United States in any federal criminal prosecution
- Deprive the Supreme Court of appellate jurisdiction to hear constitutional challenges to the No Kings Act itself
This represents jurisdiction stripping “all the way to the extreme end of the spectrum”—not only removing jurisdiction over presidential immunity but also preventing the Court from reviewing the jurisdiction-stripping law itself.
Failed Historical Attempts
In the last twenty-five years, several attempts to remove the Supreme Court’s jurisdiction over specific subjects have failed. Proposals covered:
- Abortion
- Same-sex marriage
- School prayer
- The Pledge of Allegiance
- Gun rights
- Immigration
None passed. But the constitutional power remains.
The Case For Jurisdiction Stripping
Supporters make powerful arguments for why Congress should use this tool.
1. Democratic Accountability
When six justices appointed by presidents who lost the popular vote impose their ideology on the nation for decades, Congress—the democratically elected branch—has the constitutional power to push back.
2. Textually Authorized
Unlike court expansion or term limits (which may raise constitutional questions), jurisdiction stripping is explicitly authorized by Article III’s Exceptions Clause.
The Constitution gives Congress this power. Using it isn’t a constitutional violation—it’s constitutional enforcement.
3. Restoring Balance
When the Court overreaches—granting presidents immunity from criminal prosecution, dismantling administrative agencies, preventing states from regulating guns—Congress can restore democratic control.
4. Targeted Rather Than Structural
Unlike expanding the Court (which changes its composition) or imposing term limits (which alters tenure), jurisdiction stripping targets specific judicial overreach without fundamentally restructuring the judiciary.
Congress could strip jurisdiction over presidential immunity while leaving everything else unchanged.
5. Reversible
If Congress strips jurisdiction over an issue and later changes its mind, it can restore that jurisdiction. This makes the tool more flexible than constitutional amendments or permanent structural changes.
The Case Against Jurisdiction Stripping
Critics raise serious concerns about the dangers and limitations.
1. Separation of Powers
To critics, jurisdiction stripping poses a grave threat to the separation of powers—allowing Congress to eliminate judicial review when it doesn’t like judicial outcomes.
If Congress can remove entire categories of cases from federal courts whenever judges rule against congressional preferences, judicial independence becomes meaningless.
2. Undermines Judicial Review
Jurisdiction stripping could undermine the fundamental role of courts in protecting constitutional rights—especially minority rights that democratic majorities might want to violate.
If Congress could strip courts of jurisdiction over First Amendment cases, what prevents it from censoring speech? If it strips jurisdiction over voting rights cases, what prevents voter suppression?
3. Often Ineffective
Why? Because stripping federal jurisdiction often leaves state courts with power to interpret federal law—and state courts might reach the same conclusions the Supreme Court would have.
4. Invites Retaliation
If one party strips jurisdiction when in power, the other party will do the same when it regains control. This could lead to a cycle of escalation that undermines the entire federal judiciary.
5. Creates Legal Chaos
Removing Supreme Court review of certain issues could create inconsistent interpretations across different federal circuits, with no mechanism for resolving conflicts.
When Jurisdiction Stripping Makes Sense
Despite the concerns, there are circumstances where jurisdiction stripping might be justified:
1. Extreme Judicial Overreach
When the Supreme Court invents constitutional doctrines with no textual basis—like absolute presidential immunity for official acts—Congress has a democratic mandate to push back.
2. Usurpation of Congressional Authority
When the Court invalidates democratically enacted laws based on ideology rather than constitutional text (like gutting the Voting Rights Act or overturning Chevron), jurisdiction stripping could restore congressional power.
3. Protecting State Sovereignty
When the Court prevents states from addressing urgent problems (like gun violence or climate change), jurisdiction stripping could return power to states.
4. Temporary Emergency Measures
Jurisdiction stripping could serve as a temporary measure while Congress works on more permanent reforms like constitutional amendments or court expansion.
Constitutional Limits and Safeguards
Even supporters of jurisdiction stripping recognize necessary limits:
The Essential Functions Theory
The least controversial theory holds that the Supreme Court must retain enough power to perform its essential role of ensuring the supremacy and uniformity of federal law.
Congress probably can’t strip the Court of all jurisdiction over constitutional questions—just specific categories.
The Klein Doctrine
After United States v. Klein, Congress can’t use jurisdiction stripping to dictate how courts must rule on cases they do hear. It can remove jurisdiction, but it can’t command specific outcomes.
Due Process
State Court Backstop
Congress lacks affirmative power to strip all courts—both federal and state—of jurisdiction to hear constitutional challenges. State courts must remain available for constitutional claims.
Comparing Jurisdiction Stripping to Other Reforms
How does jurisdiction stripping compare to other reform proposals?
vs. Court Expansion
Court expansion changes who decides cases but leaves jurisdiction intact. Jurisdiction stripping changes what cases can be decided but leaves the Court’s composition alone.
Expansion is more comprehensive but harder politically. Stripping is narrower but possibly more achievable.
vs. Term Limits
Term limits address how long justices serve. Jurisdiction stripping addresses what they can rule on.
Term limits require constitutional amendment (probably). Stripping requires only legislation.
vs. Binding Ethics Code
Ethics codes regulate how justices behave. Jurisdiction stripping regulates what they can decide.
They address different problems and could be used together.
vs. Rotating Panels
Rotating panels change which justices hear which cases. Jurisdiction stripping determines whether cases reach the Supreme Court at all.
Rotating panels are structural reform. Stripping is targeted intervention.
The Nuclear Option Problem
Jurisdiction stripping has been called “the nuclear option” for good reason: it’s a tool of last resort with serious consequences.
When to Use It
Jurisdiction stripping makes sense when:
- The Court has egregiously overstepped constitutional bounds
- Democratic institutions need protection from judicial tyranny
- Other reform options have failed or are unavailable
- The specific issue is discrete and well-defined
When Not to Use It
Jurisdiction stripping is inappropriate when:
- Congress simply disagrees with a legitimate judicial interpretation
- The goal is to enable unconstitutional actions
- It would eliminate all judicial review of government action
- Partisan motivations rather than constitutional concerns drive it
Conclusion: A Power Reserved for Extreme Circumstances
Jurisdiction stripping is real, constitutional, and powerful. Congress has the authority to remove categories of cases from Supreme Court review, and it has exercised that power before.
But power and wisdom are different things. Just because Congress can strip jurisdiction doesn’t mean it should.
The current Supreme Court has handed down decisions that cry out for democratic pushback:
- Presidential immunity that places presidents above the law
- Dismantling of administrative law through Loper Bright
- Gun rights extremism that prevents states from protecting their citizens
- Voting rights rollbacks that enable minority rule
For these extreme cases of judicial overreach, jurisdiction stripping offers a constitutional remedy. Congress could prevent the Court from enforcing presidential immunity, could restore Chevron deference, could return gun regulation to states.
But jurisdiction stripping should be a last resort, not a first response. It’s the nuclear option—reserved for when the Court has become so captured by ideology that democratic intervention is essential.
The better path is comprehensive reform: term limits, binding ethics codes, rotating panels, and possibly expansion. These structural reforms address root causes rather than symptoms.
But if the Court continues its assault on democracy, if justices refuse to recuse despite obvious conflicts, if partisan decision-making becomes even more brazen—Congress has a constitutional tool to push back.
The Exceptions Clause exists for a reason. Sometimes, the only way to preserve judicial review is to limit judicial overreach.
That’s not the destruction of separation of powers. It’s what constitutional democracy looks like when one branch exceeds its authority and threatens to become an oligarchy.
Jurisdiction stripping: the power Congress has, hopes it never needs, but should be prepared to use.