This bill aims to strip Trump of immunity and the power of the Supreme Court

I think it’s fair to say that the Supreme Court’s decision, on the last day of its term, to grant Donald Trump absolute immunity from prosecution for crimes he may have committed while president has awakened the Democratic Party from its long, deferential slumber. For the first time in 40 years, the party appears ready to take on the Republicans who run the Supreme Court, particularly on the question of whether the president of the United States is subject to the laws of the land.

Early last week, President Joe Biden called for a constitutional amendment to ensure that presidents can be impeached for crimes committed while carrying out their presidential duties. But passing a constitutional amendment is a long and arduous process. Then, late last week, Senate Majority Leader Charles Schumer proposed a quicker solution: the No Kings Act.

Schumer’s bill would ensure that presidents and vice presidents, as well as former presidents and vice presidents, “shall not be entitled to any form of immunity (absolute, presumptive, or otherwise) from criminal prosecution for alleged violations of the criminal laws of the United States, unless otherwise specified by Congress.” The legislation would overturn and completely revoke the immunity invented by the Supreme Court for Donald Trump.

That alone is a significant step. But the most important part of the legislation is that it attempts to make the legislation SCOTUS-proof so that the Supreme Court cannot simply ignore the will of Congress. The bill states that the Supreme Court “shall have no appellate jurisdiction” over the act. That means the court cannot declare the bill unconstitutional or use another case to restore the absolute immunity that the bill takes away. Instead, the bill specifies that any challenge to the constitutionality of the legislation must be filed in Washington, D.C., and heard by the Court of Appeals for the D.C. Circuit.

The idea behind this provision is what scholars call “jurisdiction stripping.” Most cases heard by the Supreme Court come to the court on appeal from a lower court. But the Constitution says the court’s appellate jurisdiction is subject to “exceptions” and “regulations” enacted by Congress. It can be argued that Congress has the power to tell the Supreme Court what it can and cannot review. Schumer’s bill would test that theory by preventing the court from reviewing the act.

Schumer’s legislation is creative, and it signals that Democrats in Congress are finally willing to use some of the power the Constitution gives Congress to fight the Supreme Court. The problem, however, is that the Supreme Court’s conservative supermajority is unlikely to think it can have its jurisdiction revoked in this matter. People who have been paying attention know that the court’s Republican-appointed justices are quite happy to advance ridiculous and unprecedented arguments that serve their favorite political agenda. In fact, the only reason the No Kings Act is necessary is that conservatives have advanced the ridiculous and unprecedented argument that the Constitution holds presidents above the law. So it wouldn’t be out of character for them to simply invent a reason to kill the act.

But in this case, the argument Republicans are likely to make against the No Kings Act isn’t actually entirely ridiculous, and it has some precedent. As Ian Millhiser explains on VoiceThere is a credible argument that Congress cannot strip the Supreme Court of jurisdiction in cases where the court has already ruled. Since the court has held that Trump is entitled to immunity as a constitutional matter, there is a legitimate argument to be made that Congress cannot step in after the fact and say the court is not allowed to rule on presidential immunity. And even if it did, the DC Circuit might feel obligated to uphold the Supreme Court’s earlier ruling.

At least, that’s the argument Republicans and their friends on the Supreme Court will make. As I explained in The nation more than two years ago, the fundamental problem with the elimination of jurisdiction as a court reform is that the Republican Supreme Court will always maintain that its jurisdiction cannot be eradicated.

Congress could, of course, simply ignore what would be an unlawful adverse ruling by Supreme Court statute, but remember, we are talking about whether a president like Trump can be prosecuted for crimes. You don’t have to be a Civil War historian to imagine the levels of constitutional crisis that could ensue if this law were passed, Trump were prosecuted, his Supreme Court justices said he couldn’t be prosecuted, and the prosecution went ahead anyway.

Fortunately, that is putting the cart ahead of the horse. First, Democrats must win the House, maintain control of the Senate, and defeat Trump in the next presidential election. Then, Democrats should pass this law, which would likely eliminate the Senate filibuster. Then, Trump should be retried. Then, the Supreme Court should be willing to risk an open revolt against its own authority to once again save the recently defeated political candidate from accountability. Finally, the lower courts should side with Congress over the Supreme Court on the interpretation of the Constitution. There are a lot of ifs and maybes before we get to a full-blown constitutional crisis.

So where does all this leave us?

Like Biden’s court reform proposals, what’s significant about Schumer’s bill isn’t its likelihood of success or whether it could ever put Donald Trump behind bars. What’s important is that it signals that Democrats are finally willing to play hardball with the Republican court on constitutional matters. The era in which the Supreme Court ruled the country, unconcerned and unchecked, appears to be coming to an end.

If Democrats win the trifecta, Want pass something to reform the court and reduce its power. The court’s Republicans Want reject those reforms and declare them unconstitutional. And then we’ll see if Democrats are willing to do the one thing the Supreme Court can’t reject: expand the bench to give pro-democracy justices a majority on the court.

The road to court reform leads to court expansion or nowhere. Biden, and now Schumer, are willing to take the first steps.