The most questionable aspect of Wyden’s bill is its attempt to limit the power of the federal courts to hold Congressional acts unconstitutional. The bill says that a two-thirds majority of the Supreme Court is necessary to find a law unconstitutional, and a unanimous vote of a Court of Appeals panel. I am not sure what motivates this. Liberals and conservatives are about equally likely to think that a particular law is unconstitutional, depending on what it says. Certainly the Democrats were eager to have laws against abortion and sodomy, to name just two examples, overturned. This provision seems aimed rather spitefully at the present composition of the Court.

More fundamentally, the two-thirds requirement seems plainly unconstitutional. Under Marbury v. Madison, “[I]t is emphatically the province and duty of the judicial department to say what the law is,” and “[a] Law repugnant to the Constitution is void.” Does Congress have the authority to limit an equal branch’s power to carry out what that branch sees as its constitutional duty? Unless I am missing something, the answer is clearly No.

This bill purports to require a two-thirds majority to declare an act of Congress (not, apparently, a state law) unconstitutional. What if Congress purported to require a unanimous decision of the Court for such a ruling? There is no way any Supreme Court would view an attempt by Congress to limit its ability to issue rulings on constitutional questions as permissible.