{"id":239505,"date":"2021-04-30T00:46:51","date_gmt":"2021-04-29T21:46:51","guid":{"rendered":"https:\/\/en.buradabiliyorum.com\/court-packing-isnt-just-a-bad-idea-its-downright-unconstitutional\/"},"modified":"2021-04-30T00:46:51","modified_gmt":"2021-04-29T21:46:51","slug":"court-packing-isnt-just-a-bad-idea-its-downright-unconstitutional","status":"publish","type":"post","link":"https:\/\/buradabiliyorum.com\/en\/court-packing-isnt-just-a-bad-idea-its-downright-unconstitutional\/","title":{"rendered":"#Court-packing isn’t just a bad idea \u2014 it’s downright unconstitutional"},"content":{"rendered":"

“#Court-packing isn’t just a bad idea \u2014 it’s downright unconstitutional<\/strong>”
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Rep. Jerry Nadler (D-NY) and Sen. Ed Markey (D-Mass.) are proposing a bill to \u201cpack\u201d the US Supreme Court by adding four new seats. The obvious aim is to dilute the power of the current conservative majority. Commentators have furiously debated the wisdom<\/em> of such a move but paid very little attention to whether Congress even has the authority<\/em> to do so.<\/p>\n

Is so-called court-packing even constitutional? The answer is no. <\/p>\n

The text of the US Constitution strongly suggests that Congress simply doesn\u2019t have the power to pack the high court.<\/p>\n

Congress has determined the number of seats since the beginning of the Supreme Court. But where does Congress get this power? Under the Constitution, Congress is a body with enumerated powers. That is, Congress has only those powers granted to it under the Constitution \u2014 and no other.<\/p>\n

As it turns out, there is no specific grant of power to Congress under the Constitution to set the size of the Supreme Court.<\/p>\n

It\u2019s true that, in addition to its enumerated powers, the Constitution also grants Congress the power to \u201cmake all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.\u201d<\/p>\n

This is the Necessary and Proper Clause, and it gives Congress certain implied power to, essentially, make the Constitution work properly. Since the Constitution establishes the Supreme Court but doesn\u2019t say how big it should be, someone<\/em> has to set the number of justices.<\/p>\n

That someone is Congress under the Necessary and Proper Clause. But just because Congress can initially set the number of justices on the high court, does that mean Congress can later manipulate the size of the court to shift the balance of judicial power?<\/p>\n

Since Chief Justice John Marshall\u2019s landmark opinion in McCulloch v. Maryland in 1819, <\/em>the Supreme Court has interpreted the Necessary and Proper Clause in a sweeping manner, resulting in a significant expansion of congressional authority. This has been largely accomplished through a broad reading of the word \u201cnecessary,\u201d which the opinion in McCulloch defines not as \u201cstrictly necessary,\u201d but as \u201cconvenient or useful.\u201d<\/p>\n

In this way, Congress has exercised exceptionally broad authority to make laws impacting nearly every aspect of our lives.<\/p>\n

But in addition to being \u201cnecessary\u201d (as broad as that is), a law enacted under this provision must also be \u201cproper.\u201d And there\u2019s the rub. In McCulloch, the court explained that \u201cproper\u201d means \u201cconsist[ent] with the letter and spirit of the Constitution.\u201d\u00ad Moreover, the \u201cend [must] be legitimate.\u201d<\/p>\n

This strongly suggests that when evaluating a claim of congressional power under the Necessary and Proper Clause we must examine motive and intent.\u00a0<\/p>\n

Put another way, Congress gets to exercise this Necessary and Proper power only when it app<\/a>ears appropriate for it to do so. Can it reasonably be said that court-packing, an act whose goal is to materially alter the balance of power in Washington for explicitly ideological ends, lies within \u201cthe letter and spirit of the Constitution\u201d? Hardly. Rather, it is a frontal assault against the separation of powers \u2014 a value deeply ingrained in the Constitution.<\/p>\n

Thus, even if court-packing might meet the loose definition of necessary, it is difficult to say that such an assertion of congressional power would qualify as necessary and<\/em> proper.<\/p>\n

That important limitation on the Necessary and Proper Clause remains valid today. As recently as 2012, in the ObamaCare case NFIB v. Sebelius, the high court held that Congress couldn\u2019t look to the Necessary and Proper Clause for the authority to enact the Affordable Care Act\u2019s individual mandate.\u00a0(The government ultimately won the case because the court held that the mandate was a tax and was therefore within Congress\u2019 enumerated powers.)<\/p>\n

In the ObamaCare case, the government argued that authority for the individual mandate was \u201cnecessary and proper\u201d to implement Congress\u2019 power to regulate interstate commerce \u2014 historically a great source of expanded authority for Congress. In rejecting the government\u2019s position, the court explained that \u201csuch laws, which are not consistent with the letter and spirit of the Constitution, are not proper means for carrying into execution Congress\u2019 enumerated powers. Rather, they are, in the words of The Federalist, merely acts of usurpation which deserve to be treated as such.\u201d \u00a0<\/p>\n

\u201cNecessary\u201d and \u201cproper\u201d still have their limits, and court-packing is unlikely to find in them any safe harbor.\u00a0<\/p>\n

Daniel L. Schmutter, a lawyer in New Jersey, regularly practices before the appellate bench, including the US Supreme Court. <\/em>\n <\/div>\n

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Source<\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

“#Court-packing isn’t just a bad idea \u2014 it’s downright unconstitutional” Rep. Jerry Nadler (D-NY) and Sen. Ed Markey (D-Mass.) are proposing a bill to \u201cpack\u201d the US Supreme Court by adding four new seats. The obvious aim is to dilute the power of the current conservative majority. Commentators have furiously debated the wisdom of such…<\/p>\n","protected":false},"author":1,"featured_media":239506,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"fifu_image_url":"https:\/\/nypost.com\/wp-content\/uploads\/sites\/2\/2021\/04\/Supreme_Court_Homeless_Camping_Ban-1.jpg?quality=90&strip=all&w=1200","fifu_image_alt":"","footnotes":""},"categories":[70897],"tags":[103841,52214,10701,71404,72007],"class_list":["post-239505","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-4-29-21","tag-congress","tag-democrats","tag-supreme-court","tag-the-constitution"],"_links":{"self":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/posts\/239505","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/comments?post=239505"}],"version-history":[{"count":0,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/posts\/239505\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/media\/239506"}],"wp:attachment":[{"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/media?parent=239505"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/categories?post=239505"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/buradabiliyorum.com\/en\/wp-json\/wp\/v2\/tags?post=239505"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}