Instead of wailing and bemoaning the imperial edicts issued this past week by the Supreme Court on Obamacare, housing discrimination, and gay marriage, the Republican-controlled Congress would do better to exercise its constitutional authority and fight back.  Here is one way.

Few powers given to the Congress are more clearly defined, and yet more rarely exercised, than its power to strip the federal courts, including the Supreme Court, of jurisdiction over almost any subject matter Congress chooses.  It is a mystery why the Republican leadership is so timid and weak in submitting to the clearly unconstitutional decisions handed down on a regular basis by the high court.

Article III, section 2 of the U.S. Constitution expressly states (emphasis added):

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.

This means exactly what it says: the Supreme Court (and by implication, the lesser federal courts) can be stripped from hearing and deciding any issue at all, save only those few issues granted to its original jurisdiction in the language above.  Cases in which “a state shall be party” is strictly limited to those controversies between two or more states, or between a state and citizens of another state, or between a state and foreigners (Cohens v. Virginia, 19 U.S. 264 [1821]).

If the Congress truly objected to the Supreme Court dreaming up a constitutional right to homosexual marriage under the Equal Protection Clause, it need not have delayed in scheduling a floor vote on a bill to remove that question from the high court’s purview, even while the issue was under consideration.  For some reason, no one scheduled such a vote.

Court-stripping isn’t some sort of exotic legal theorem that would provoke a constitutional crisis.  This sort of thing has happened before.  Every first-year law student knows that during Reconstruction, Congress revoked the Court’s jurisdiction from a case the U.S. Supreme Court was even then deciding.  The Court ended the case of Ex Parte McCardle, 74 US 506 (1869), with the justices acknowledging the authority of Congress to intervene:

It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Ex Parte McCardle was followed up by The Francis Wright, 105 U.S. 381 (1881), where the Court found:

While the appellate power of this Court extends to all cases within the judicial power of the United States, actual jurisdiction is confined within such limits as Congress sees fit to describe. What these powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control.

Nor is court-stripping some quaint 19^th-century archaism.  Justice Felix Frankfurter’s opinion in the case of National Insurance Co. v. Tidewater Co., 337 U.S. 582 (1949) again conceded that Congress not only has the right to refuse appellate jurisdiction, but may withdraw it “once conferred.”

In other words, instead of grimly accepting that the Supreme Court has spoken on the issue of marriage and the issue is settled, Congress could, by a simple majority vote, re-enact, say, the Defense of Marriage Act, declared unconstitutional two years ago, and simultaneously strip all federal courts from any ability to challenge it.  Congress could, alternatively, enact legislation allowing the states to separately define what marriage is – and then strip the federal judiciary and the Supreme Court of any power to overturn the states’ definitions of marriage.  It is not necessary to pass a new Constitutional amendment for Republicans in Congress to get their presumed desired result on nearly any cultural issue, including homosexual marriage and abortion.

Of course the Constitution also gives the President the power to veto any Congressional bill, including those described above.  Naturally President Obama would veto any such legislation, but what of it?  The ground would be set and the issues clearly defined for the voters in the next election of 2016.

Christopher S. Carson, a lawyer, was a Bradley Fellow at Georgetown University.