Democrats may soon regret their attack on federal courts

As recently as July 2021, a majority of Democrats still had a favorable opinion of the Supreme Court . That all changed, of course, after the court’s Dobbs v. Jackson Women’s Health Organization decision which finally overturned Roe v. Wade. By July 2022, the Democratic Party’s favorable opinion of the Supreme Court had fallen to 13%, and it has only risen slightly since then to 15%.

Now, after a term in which President Donald Trump’s conspiracy charges were tossed on grounds of presidential immunity and federal agency power was limited with the end of the Chevron deference , Democrats want to energize their base by demonizing federal courts and taking away their power.

Enter Sen. Ron Wyden (D-OR) and his Restoring Congressional Authority Act , which Axios reports will give the Senate “new power against SCOTUS.”

The bill does no such thing.

What the bill does do is try to force appellate courts to determine what Congress intended when it gave a federal agency rule-making power, which is a shot at conservative judicial philosophy that looks to a statute’s text, not congressional intent. Such a new provision would actually greatly weaken Congress, not empower it, by giving appellate judges, who can be conservative or liberal, far more latitude to rule that Congress intended whatever judges want them to.

But the more interesting provision of Wyden’s legislation is the creation of a mechanism similar to the Congressional Review Act that enables members of Congress to force votes on new unpopular federal agency regulations. Wyden’s bill creates a similar rule for unpopular appellate court decisions that overturn a federal agency regulation.

This may seem like a good idea to Democrats now that they control the White House. But if Democrats were to lose control of the White House and the Senate, it would be a disaster. Democrats would have created a fast-track mechanism for the Trump White House and Republican Congress to steamroll the federal courts.

Just think of all the times a Trump administration policy was stopped by some liberal district court judge appointed by a Democrat. The new policy was stopped immediately nationwide until the case could make it to the Supreme Court, which could take years.

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Under Wyden’s bill, any time a liberal judge on the U.S. Court of Appeals for the 9th Circuit stopped a Trump policy, Congress could just overrule the judge and Trump would sign that decision into law. Democrats would be powerless to stop him.

On second thought, maybe Republicans should work with Wyden on this bill.