Chuck Schumer’s ambitious plan to take the Supreme Court down a peg

The Supreme Court’s recent decision that former President Donald Trump was allowed to commit crimes while he was in office is one of the most alarming decisions in the Court’s history. As Justice Sonia Sotomayor warned in dissent, it could even have allowed Trump to escape prosecution if he had ordered “the Navy’s Seal Team 6 to assassinate a political rival.”

Now Senate Majority Leader Chuck Schumer (D-NY) plans to introduce legislation that seeks to neutralize it.

The bill, known as the “No Kings Act,” has 29 co-sponsors, all of whom are members of the Democratic caucus.

Schumer’s bill relies on a rarely used congressional power to shrink the Court’s authority to hear certain appeals. The idea is to prevent the Supreme Court from enforcing its Trump immunity decision by removing the Court’s jurisdiction over presidential prosecutions.

The bill also declares that presidents, vice presidents, and former presidents and vice presidents “shall not be entitled to any form of immunity … from criminal prosecution for alleged violations of the criminal laws of the United States unless specified by Congress.”

In Trump v. United States (2024), the Court’s six Republicans held that presidents and former presidents have broad immunity from criminal prosecution for illegal actions they engaged in using their authority as president. Among other things, the Republican justices concluded that the executive branch led by the president “has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute.” 

So under the Republican justices’ understanding of the Constitution, Trump could not face criminal consequences even if he’d ordered the Justice Department to bring false charges against every elected Democrat in the country.

Schumer’s No Kings Act is the second major proposal by a high-ranking Democrat that targets the Court’s Trump immunity decision. Earlier this week, President Joe Biden proposed a constitutional amendment to overturn Trump, and this amendment was also endorsed by presumptive Democratic presidential nominee Kamala Harris.

The No Kings Act is distinct from Biden’s proposal because it is ordinary legislation and therefore doesn’t need to be ratified by three-quarters of the states like a constitutional amendment. In theory, the No Kings Act could be enacted by a simple majority of both houses of Congress and signed into law by the president.

In practice, however, the bill is likely to trigger massive resistance from the same Republican justices responsible for the Trump decision if it actually becomes law (something that can’t happen unless Democrats win both houses of Congress and the White House this November). Although the Constitution permits Congress to make “exceptions” to the Court’s jurisdiction, the Supreme Court could still declare a law stripping away some of the justices’ authority unconstitutional.

Nevertheless, Schumer’s bill is significant because it shows that Democrats are increasingly willing to play constitutional hardball against a Supreme Court dominated by Republicans. At least two of the Court’s six Republicans are only there because Senate Republicans engaged in similar hardball tactics to ensure that the Supreme Court would have a Republican majority.

Jurisdiction stripping, explained

Nearly all cases that reach the Supreme Court fall within its “appellate jurisdiction,” meaning that the case must begin in a lower court and can only be decided by the justices after some other court has weighed in on it. The Constitution provides that this appellate jurisdiction is subject to “such exceptions, and under such regulations as the Congress shall make.”

Thus, the text of the Constitution suggests that Congress has virtually unlimited power to decide which appeals the Supreme Court is allowed to hear — although, as I’ll explain in more detail below, the Supreme Court’s precedents complicate matters a great deal.

While there is some doubt about the scope of Congress’s ability to shrink the Supreme Court’s jurisdiction, it is widely understood that Congress gets to decide which cases can be heard by lower federal courts. While the Supreme Court is created by the Constitution, the Constitution also provides that “inferior” federal courts must be created by an act of Congress. 

The power to create a new court includes the power to determine which cases may be heard by that court, and Congress routinely passes legislation defining the jurisdiction of lower federal courts. The United States District Court for the Southern District of Texas, for example, typically only has jurisdiction over cases arising out of southern Texas, and not cases arising out of, say, Vermont.

The No Kings Act relies on both forms of jurisdiction stripping. 

It provides that any civil lawsuit claiming that the No Kings Act is unconstitutional must be filed in DC. These decisions will then appeal to the United States Court of Appeals for the DC Circuit, a court that currently has a 7-4 Democratic majority among its active judges.

Actual criminal prosecutions of a president could potentially be filed anywhere, but, because the president is a federal official who resides in Washington, DC, most potential crimes committed by a president would likely be prosecuted in a DC federal court anyway, as the Constitution provides that criminal defendants shall be tried in “the state and district wherein the crime shall have been committed.”

Additionally, the bill provides that the Supreme Court “shall have no appellate jurisdiction” over any claim 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.” A separate provision provides that the Supreme Court “shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional.”

Thus, the bill seeks to lock the Supreme Court out of presidential immunity cases and to make the DC Circuit, which previously ruled that Trump was not allowed to commit crimes while he was in office, the final word in these cases.

Would this trick actually work?

There are legitimate constitutional arguments that can be raised against the No Kings Act.

Much of the debate over Congress’s power to reduce the Supreme Court’s jurisdiction turns on very old precedents. In Ex parte McCardle (1869), a newspaper publisher was arrested by a military commander in the post-Civil War South. The publisher claimed that his arrest was illegal, but before the Supreme Court could rule on his case, Congress passed a law stripping the Court of jurisdiction over it.

The Court’s ultimate decision in McCardle offers ammunition to both proponents of the No Kings Act and to the law’s detractors. On the one hand, McCardle was deferential to Congress’s power to make exceptions to the Court’s jurisdiction. “[T]he power to make exceptions to the appellate jurisdiction of this court is given by express words,” Chief Justice Salmon Chase wrote for a unanimous Court.

At the same time, however, Chase’s opinion ended with a line stating that the jurisdiction stripping law “does not affect the jurisdiction which was previously exercised,” meaning that court decisions handed down before the jurisdiction stripping law was enacted remain good law. So Trump technically remains good law even if the Supreme Court is forbidden from enforcing it, and lower courts may feel compelled to honor that decision.

Two years later, in United States v. Klein (1871), the Court ruled that Congress may not use a jurisdiction-stripping law to lay out a “rule of decision” for the Supreme Court. That is, while Congress could conceivably strip away the Supreme Court’s jurisdiction to hear all abortion-related cases, it could not try to force the Court to decide these cases in a certain way by stripping it of jurisdiction only over cases where the Court is inclined to rule against abortion rights. 

Additionally, in Felker v. Turpin (1996), three justices joined a concurring opinion suggesting that Congress may not entirely forbid the Court from hearing a particular issue altogether. Justice David Souter’s concurring opinion in Felker suggests that, while Congress may cut off one process that a litigant may use to bring a case to the justices, Congress must also leave open some other avenue that would allow the issue presented in that case to be heard by the Supreme Court.

What these cases show is that Congress’s power to strip the Supreme Court of jurisdiction is rarely used, and the Court has not clearly defined the scope of that power. That’s bad news for Schumer and other proponents of the No Kings Act. Given how uncertain the Court’s jurisdiction-stripping precedents are, it probably would not be hard for the Supreme Court’s Republican majority to come up with a reason to declare the No Kings Act unconstitutional if they wanted to.

Still, the No Kings Act is significant, less because it is likely to be upheld by a Republican Supreme Court than because it shows that Democrats are starting to think creatively about how to rein in a rogue Supreme Court. If the Court’s Republican majority insists upon enforcing its Trump immunity decision even after that decision is repudiated by Congress, then Congress has plenty of other tools it can use to protect the nation from lawless justices and lawless presidents.

Among other things, Congress could zero out the Court’s budget for law clerks and other support staff. It could evict the justices from their chambers. And it could even add more seats to the Supreme Court, which could immediately be filled with Democratic justices if a Democrat is in the White House.

The No Kings Act, in other words, represents a significant escalation in the fight between elected Democrats and unelected Republicans on the Supreme Court. And, if those unelected Republicans do not yield, Congress has plenty of tools it can use to escalate further.

Correction, 8 pm ET: This piece previously misstated where a trial of a former president would take place under the No Kings Act.