The Supreme Court is out of “pocket” (literally and figuratively). Their latest decision to allow the (illegal) “pocket rescission” (in the face of District Judge Amir Ali and the D.C. Court of Appeals) combined with their rush to take up Trump’s appeal of his (again, illegal) use of IEEPA to do his absurd tariffs (in the face of both the International Court of Trade and the Court of Appeals for the Federal Circuit) have demonstrated both contempt for the entirety of the federal judiciary (except themselves) and their willingness to give Trump (illegal and unconstitutional) power.
What’s crazy is how much these imbeciles have forgotten about the law, especially in light of their supposed loyalty to “originalism”.
The United States Constitution: Article III, Section 2, Clause 2
(aka “The Exceptions Clause”):
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” [emphasis added]
The important part is in bold “…with such Exceptions, and under such Regulations as the Congress shall make.”
Congress was originally in charge of SCOTUS’s docket and jurisdiction except in cases of “original jurisdiction” (primarily cases about foreign dignitaries or state vs. state suits). A series of Judiciary Acts has given SCOTUS more agency over said docket and in the words of Taylor Swift: “This is why we can’t have nice things, darling. Because you break them, I have to take them away.”
[Sidenote: Justice Samuel Alito (who is an idiot) once stated, “No provision in the Constitution gives them [Congress] the authority to regulate the Supreme Court — period.” He called it “a controversial take”. I call it…being an idiot. Or illiterate. Which is weird for someone who supposedly passed the bar but whatever, I guess.]
Why am I telling you this?
Because right now Trump is running roughshod over all separation of powers. And the (non-Supreme and increasingly exasperated) federal judiciary is rightfully halting his nonsense. But Trump keeps running to mommy (i.e., SCOTUS) who are overturning most of the federal bench’s decisions.
Congress is staring down a shutdown and hoping for a “bi-partisan” (or something resembling it) funding package. But if SCOTUS is going to aid and abet the administration in their encroachment on Congress’s power of the purse, what would be the point of negotiating anything - “bi-partisan” or otherwise - with Republicans? Democrats could get the best deal in the world and it literally will not matter if (illegal) rescissions and (illegal) taxation/tariffs can be wielded by the Executive Branch with impunity (from SCOTUS anyway).
Democrats need to demand an “exception” per the “Exceptions Clause” to SCOTUS’s jurisdiction over appropriations, tariffs, and taxes. This could be temporary or restricted to just FY26 appropriations and taxation if the institutionalists among the establishment Dems (and there are many) are too squeamish to revoke it forever.
Without such an exception, Dems may as well just pack it in and rubber stamp whatever the Republicans give them for a budget - because that’s essentially what they’ll have to do anyway.
YOUR MISSION (should you choose to accept it):
Call Senate Minority Leader Chuck Schumer and your Democratic Senators/House members (if you have any). Switchboard is 202-224-3121.
Tell them you are fully in support of their existing plan to make Affordable Care Act subsidy extensions past December 31, 2025 in exchange for avoiding a shutdown.
BUT they ALSO need to add an exception (even temporarily) to the Supreme Court’s jurisdiction over cases related to tariffs, taxes, and appropriations. The federal district courts and courts of appeals are already ruling on these cases (correctly) and SCOTUS has demonstrated its lack of trustworthiness by allowing a clearly illegal “pocket rescission”.
Emphasize that any “deal” they make with Republicans will basically be for nothing if SCOTUS retains the ability to overrule lower courts who already decided that the IEEPA tariffs were unlawful and that (illegal) pocket rescissions cannot be implemented.
Further remind them that they have yet to communicate directly to “We the People” about their strategy for a shutdown and some communication via social media, email, phone blast, etc. would be most helpful for organizing their voters.
You can watch my video at the top of this post for a sample call.
