c. Restricting the Jurisdiction of All Courts, Including State Courts
Simultaneous preclusion of jurisdiction by all courts to consider challenges to the constitutional validity of legislation would present a plethora of serious constitutional issues. Among other things, because a statute precluding all judicial jurisdiction would necessarily be invalid if a preclusion of all federal jurisdiction would be invalid, the grounds for constitutional objection cumulate as the scope of an attempted issue-specific preclusion of judicial review expands. Here we identify a few of the distinctive issues that a preclusion of all judicial jurisdiction would present, though without pretense of exhaustive treatment.
If Congress sought to deprive state courts of jurisdiction to rule on challenges to the constitutional validity of state legislation under the U.S. Constitution, there would be a serious question about the source of Congress’s authority to do so. It is not obvious that a federal statute divesting state courts of jurisdiction to rule on the constitutionality of state legislation, for purposes other than granting exclusive jurisdiction to the federal courts, would be “necessary and proper” for carrying any federal power into execution.
If Congress sought to deprive all courts of jurisdiction to rule on the constitutional validity of federal legislation, a similar question would arise about the source of Congress’s power. It might be argued that legislation of this kind would be “necessary and proper” to implement whatever substantive power supported the enactment of the federal legislation that Congress sought to shield from judicial scrutiny—for example, a statute imposing a wealth tax or barring abortions. But that conclusion would be disputable. The Necessary and Proper Clause, and the doctrine interpreting it, leave room for an argument that a categorical bar on judicial challenges to arguably unconstitutional legislation is not necessary and proper because of its adverse impact on constitutional rights.
Depending on the details of any particular measure that Congress might enact, rights-based restrictions on congressional authority would likely come into play, as well. The restrictions would perhaps be plainest if Congress sought to provide for coercive enforcement of a statute by the courts while purporting to withdraw judicial jurisdiction to entertain constitutional objections to the statute that courts were charged with enforcing. Consider, for example, if a doctor were prosecuted for violating a statute that forbade performing abortions, or a taxpayer were prosecuted for refusing to pay a wealth tax. If Congress purported to bar a court from entertaining defenses that the abortion prohibition or the wealth tax were unconstitutional, the doctor or the taxpayer would have a more than colorable argument that
