Can Congress overrule Marbury v. Madison by statute? Can the United States' Congress pass a statute (by simply majority of both houses, then signed into law by the President) which says: Using the power granted to us by Article III, Section 2, clause 2 of the Constitution, the Supreme Court is henceforth regulated as follows: Neither the Supreme Court nor any lower federal court, under their appelate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statute passed by Congress to be declared unconstitutional. Congress would do so by exploiting its power under Article III, Section 2, clause 2 of the Constitution: 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 In case of a positive response to the question above, can Congress do so also regarding the Supreme Court original jurisdiction, although apparently the Constitution gives Congress the power to make exceptions and regulations against the Supreme Court only for appellate jurisdiction?
Congress can't override substantive rules of constitutional law Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and in substance, this law seeks to change that interpretation of the scope of the judicial power, so that interpretation may not be overruled except via a Constitutional amendment. Neither the Supreme Court nor any lower federal court, under their appellate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statue passed by Congress to be declared unconstitutional. The language in italics is jurisdiction stripping language, which I discuss below, and which is also discussed in another answer. But, the language in bold is enunciating a substantive rule of law regarding how the judicial branch may resolve a case that is otherwise properly before it. And, Congress does not have the power to change that to make the U.S. Constitution a dead letter under its Article III jurisdiction regulation powers. The language in bold language is a direct attempt to overrule a binding interpretation of the U.S. Constitution and that is beyond the authority of Congress to do, so the statute would be unconstitutional, at least, in part. Jurisdiction stripping Yes, Congress can regulate the jurisdiction of the federal courts pursuant to Article III, Section 2 which states: 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 the Regulations as the Congress shall make. But, there are parts of Article III that apply in addition to the power of Congress to create "Exceptions" the appellate jurisdiction of the U.S. Supreme Court, and the power to create and modify the "inferior courts" that exist. The first sentence of Article III, Section 1 of the U.S. Constitution states: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts, as the Congress may from time to time ordain and establish. This is crucial, and interacts with the Exceptions power. The default provision is that all judicial power as defined in Article III, Section 2 is vested in the "supreme Court" unless and until that power is instead vested in an "inferior Court" established under Article III that Congress creates by law. Therefore, Congress does not have the power to deny every court (or even every federal court) both original and appellate jurisdiction over any constitutionally justiciable claim arising under Article III, even if the claim is not within the express original jurisdiction of SCOTUS. If they deny every inferior Article III federal court jurisdiction over something within the constitutionally defined scope of the judicial power, then it reverts to the original jurisdiction of the U.S. Supreme Court even though it is not expressly made a part of the U.S. Supreme Court's original jurisdiction. The judicial power of the federal courts collectively is defined in Article III, Section 2 of the U.S. Constitution and extends to all cases arising under the U.S. Constitution which would include a claim to have a provision of federal or state law declared unconstitutional as in violation of the constitution. It says: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . (This analysis is attributed to U.S. Supreme Court Justice Joseph Story.) Now, this is not to say that Congress couldn't do something to make it harder procedurally to have statutes declared unconstitutional. For example, there would be a much harder claim of unconstitutionality if Congress vested original jurisdiction in all such cases in the United States in the U.S. District Court for the District of Wyoming, and then only assigned one judge to that district, and denied the U.S. Courts of Appeal or the U.S. Supreme Court, appellate jurisdiction over those decisions. At some point, however, even this lesser restriction, rather than elimination of a judicial power would still be subject to challenge under the due process protections of the 5th Amendment. Writ jurisdiction Notably, Marbury v. Madison was a case brought in the original jurisdiction of the U.S. Supreme Court under a writ of mandamus, under the All Writs Act, and not in connection with its appellate jurisdiction. So, Congress would also have to repeal or amend the "All Writs Act" to pull off the intent of the proposed statute, because the U.S. Supreme Court's original jurisdiction extends by statute to writs that are not appellate in nature even though this power is very rarely exercised. A writ is a court order directed at a government official directing that government official to do something, or to refrain from doing something. But, there are many ways to back door a seemingly private cause of action, particularly one related to constitutionality, into a writ. And, if a court has jurisdiction over a writ, it has jurisdiction to entertain requests by litigants to have such writs issued. Congress can't remove a state court forum It is worth noting that every single state court from traffic court on up has concurrent jurisdiction with the federal courts to declare that a statute is unconstitutional, and that state courts frequently do declare state statutes to be unconstitutional. Congressional jurisdiction to regulate jurisdiction is largely limited to regulation of the jurisdiction of the federal courts. It can put a federal question (e.g. copyright enforcement or disputes with the IRS) in the exclusive jurisdiction of the federal courts, but there are no cases in which Congress has been permitted to place a federal law in the exclusive jurisdiction of the federal courts while also denying any federal court jurisdiction over claims arising under that law. Otherwise, state court jurisdiction isn't regulated by Congress. And, the Constitution specifically requires all federal, state and local officials to swear to uphold the U.S. Constitution which arguably provides an independent basis for state court jurisdiction over constitutionality claims arising under the U.S. Constitution. This is a really important point. For example, suppose that someone who lives in the same state as you do sues you entirely under state law in a state court, and that state's courts require you to bring any claim you have against that person in state court over which that state court has jurisdiction as a counterclaim or you forfeit that claim forever. If you have federal claims against the person who sued you in state court, and your claims are not one of the handful of issues (e.g. copyright enforcement) that are in the exclusive jurisdiction of the federal courts, you must enforce your federal claims against that person as counterclaims in that state court case, or you will lose them forever. For example, suppose that your employer sues you in state court for conversion (i.e. stealing company property) and you have a right to sue the employer for not paying you the right amount for your overtime work under federal law. Then, you must bring your federal overtime claims in state court as counterclaims to the conversion action, rather than in federal court. Similarly, even though state criminal charges are always brought in state courts, a criminal defendant in a state court criminal case, can raised arguments arising under the U.S. Constitution including a determination that a state criminal law is unconstitutional, in state court as a defense, even though the only federal court recourse a criminal defendant has is through an appeal to the U.S. Supreme Court or a post-conviction writ of habeas corpus brought in federal district court after all state direct appellate relief is exhausted, after petitioning to the U.S. Supreme Court, and after all state post-conviction relief (including petitioning the final state order to the U.S. Supreme Court) is exhausted. In practice, this means, criminal defendants have no meaningful access to the federal courts other than two petitions for certiorari to the U.S. Supreme Court which are discretionary, until they have been incarcerated wrongfully for five or ten years. But, federal defenses can and routinely are raised in the state court trial (and indeed, federal defenses that could be raised in a state trial court may not be raised in a habeas corpus petition in federal court unless they were first raised in or before the original state court trial). N.B.: Federal claims in the exclusive original jurisdiction of state courts The extremes to which jurisdiction stripping is allowed are explored in the handful of claims arising under federal law that are expressly not within the scope of the jurisdiction of any federal trial court or intermediate appellate court, or within the express non-appellate jurisdiction of the U.S. Supreme Court. The most notable of these are affirmative private individual civil lawsuits against offenders under the federal robocall and junk fax law (a.k.a. the Telephone Consumer Protection Act a.k.a. the TCPA a.k.a. 47 U.S.C. § 227), which do not not require a writ, which may only be brought in state court, subject to an ultimate appeal to the U.S. Supreme Court. But, the federal courts have exclusively jurisdiction over litigation many kinds of claims other than private civil actions arising under the TCPA. This law is much less constitutionally concerning than the one proposed in the question, however, because while Congress can't repeal the U.S. Constitution, it doesn't have to pass a law giving private individuals a private cause of action when they receive robocalls or junk faxes at all. It could pass a law that was enforceable by the FCC alone, for example, and in the case of the TCPA, there are persons, including the FCC and regulated persons who want to challenge a regulation issued by the FCC, who are entitled to utilize the federal courts to enforce the TCPA or to dispute it. For example, there is no private cause of action to enforce most federal criminal laws (as such, not just involving the same harm) with a civil lawsuit by the victim against the criminal, in either federal court or state court, but that is not unconstitutional. This is because federal criminal laws can be enforced by government prosecutors and defended against by private individuals, in Article III federal courts. Also, even private causes of action under the TCPA are subject to ultimate U.S. Supreme Court appellate review, and the U.S. Supreme Court is an Article III federal court.
The US courts (including the US Supreme Court) do not have an army or even a police force under their direct control, except for a few court bailiffs. Ultimately, if the executive simply defies the courts, the only remedy is a political one. A court can order a person held unlawfully to be released from detention, but the jail/prison authorizes might ignore such an order. A court might order DACA applications to be accepted, and if they are not, might rule that deportations or other negative actions are unlawful. A court might hold persons who defy its orders in contempt, and send marshals to jail such persons. But if the executive branch in an organized way defies such orders, there is no judicial power to compel obedience to court orders. This is why the judiciary has famously been called the &quot;least dangerous branch&quot; of the government: it cannot actually do anything without at least the tacit cooperation of the executive. Cherokee Case (Worcester v. Georgia) There was a reference in the comments above to the the Cherokee Indians case, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). In that case the US Supreme Court, in a decision written by Chief Justice Marshall held that the Georgia laws purporting to seize Cherokee lands were invalid as violations of Federal treaties. President Jackson was strongly displeased by this ruling. He was supposed to have said: John Marshall has made his decision, now let him enforce it. It appears that President Jackson probably did not say that, at least not publicly. But in fact Jackson did not take any steps to enforce the decision, and the decision was in fact not enforced. The lands were seized, and the Cherokee were forcibly relocated across the infamous trail of tears. This event shows that a court ruling (proper or improper) may have no effect if the executive branch refuses to obey or enforce it.
The Constitution says &quot;The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States&quot;. As supreme military commander, the president alone gets to say whether or not to commit troops for such an expedition. Congress does have the power to control the purse. It is a fundamental principle of constitutional law that Congress cannot command the president.
Lower courts are only bound by US Supreme Court precedent on questions of federal law once the US Supreme Court releases an opinion on an issue. Until that point in time, the US Supreme Court is officially undecided on an issue. You ask: if the U.S Supreme Court says it hasn't decided as to what the law is in this regard, can a lower court issue a ruling that might eventually be in conflict with the Supreme Court? This is commonplace. For many matters, the US Supreme Court is undecided (new statutes, novel circumstances, etc.). In order for a matter to even get to the Supreme Court in the first place, it is often the case that a lower court ruled on a question for which the Supreme Court had not previously announced its opinion. I know you are asking about the circumstance where the US Supreme Court has agreed to hear an appeal but has not yet issued judgment. However, with respect to precedential value, it is the same until the time of judgment.
The Supremacy Clause. U.S. Constitution, Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. [emphasis mine] This is also known as the "Supremacy Clause" of the U.S. Constitution. It prevents any law of any state from acting contrary to the federal constitution. A comment correctly cites multiple cases that use this clause, in part, as the basis for SCOTUS' authority to review State Supreme Court decisions. So in your hypothetical, the federal issue in play is the clarity of the federal constitution which supersedes state law.
In the United States, individual members (States) of the union are allowed to make their own constitutions and state laws &amp; regulations. This includes laws that may contradict Federal law, although this is a grey area. It usually comes down to enforcement: Federal laws are usually enforced by Federal law enforcement as they can not force states to do so. Further more, State prosecutors will usually not attempt to prosecute you for a Federal law infraction. Only Federal prosecutors OR the department of justice will do this. To see a more detailed explanation on this, look at this &quot;How Stuff Works&quot; article.
The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes).
A law that conflicts with the Constitution is void The enactment of a treaty is still a law. Even though the US has a Constitutional mechanism for ratifying treaties, once ratified, they are the “law of the land”.