Constitutional Authority Clarification Act - American Legislative Exchange Council - American Legislative Exchange Council

Constitutional Authority Clarification Act

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Summary

This model policy amends the state’s legislative code to assert legislative authority over judicial review to make legislative findings; establish the scope of judicial decisions; establish that a decision of the Supreme Court of Appeals has effect with a concurrence of four justices exists; hold lower court’s decisions of unconstitutionality in abeyance until a Supreme Court decision is rendered; establish a process for overriding a judicial decision; provide for severability; and establish an effective date.

Draft

Constitutional Authority Clarification Act

Be it enacted by [THIS STATE]:

ARTICLE 1: LEGISLATIVE AUTHORITY OVER JUDICIAL REVIEW.

This article shall be known and may be cited as the “Constitutional Authority Clarification Act.”

(a) The Legislature finds that the relevant section of the Constitution of [THIS STATE] vests legislative power in the Legislature; and another relevant section vests chief executive power in the Governor; and both branches are subject only to limitations specified in the Constitution.
(b) The Legislature further finds that the Constitution does not expressly vest in the judiciary an exclusive power to determine the Constitutionality of statutes, legislative acts, or executive branch actions.
(c) The Legislature declares that judicial review is the important function of identifying Constitutional issues and problems but is not an unchecked power of judicial supremacy over all Constitutional matters.
(d) The Legislature recognizes and, in accordance with the relevant article of the Constitution of [THIS STATE], declares that the three branches of state government are co-equal, and equally share responsibility in determining the Constitutionality of issues.
(e) The Legislature affirms its authority to review, modify, and overrule judicial decisions that interpret the Constitution of the United States and the Constitution of [THIS STATE], particularly when those decisions run contrary to the will of the people as expressed through their elected representatives. This is in keeping with the separation of powers as set forth in both the Constitution of the United States and the Constitution of [THIS STATE], as well as in the tradition of departmentalism, where each branch has a duty to interpret the Constitution within its own Constitutional scope.
(f) The Legislature recognizes that, as one of only three entities in [THIS STATE] that have a role in interpreting the Constitutionality of issues, it has the solemn duty to uphold the Constitution, and deliberately and accurately determine whether issues are in line with and adhere to the Constitution.
(g) It is therefore the policy of [THIS STATE] that:
1. Court decisions are binding only upon the parties directly involved in the controversy, unless expressly adopted by the Legislature;
2. Such decisions shall not automatically extend to the entire population unless the Legislature specifically enacts them as law;
3. No statute, legislative action, or executive action shall be deemed by the state judiciary as unconstitutional except upon heightened concurrence of the Supreme Court of Appeals;
4. Lower court decisions purporting to declare a statute unconstitutional shall not have statewide effect until reviewed by the Supreme Court of Appeals; and
5. Both the legislative and executive branches must agree to override any judicial decision ruling on a Constitutional issue.

Scope of Judicial Decisions.

(a) A decision of any state court declaring a statute, legislative action, or executive action unconstitutional shall bind only the parties to that case.
(b) No statute, legislative action, or executive action may be deemed unconstitutional and void in this state except upon the concurrence of at least four justices of the Supreme Court of [THIS STATE].

Abeyance of Lower-Court Rulings.

(a) Any decision of the Intermediate Court of Appeals, circuit court, family court, magistrate court, or other lower court purporting to determine a statute, legislative action, or executive action unconstitutional shall be held in abeyance until the Supreme Court of Appeals issues its final decision.
(b) Pending resolution by the Supreme Court of Appeals, the challenged statute or action shall remain in full force and effect.

Process for Overriding a Judicial Decision.

(a) Members of the Legislature may propose a joint resolution to override a judicial decision on a Constitutional issue, or those aspects of a decision deemed not in accordance with either the Constitution of the United States or the Constitution of [THIS STATE]. The resolution will be processed and be voted on as a normal resolution.
(b) The Governor may sign or veto the resolution to override a judicial decision on a Constitutional issue. If the Governor vetoes the resolution to override, then the override is void.
(c) The Governor may also propose a joint resolution in the Legislature to override a judicial decision or aspects of a decision on a Constitutional issue. It will also be processed and be voted on as a normal resolution. The Governor must sign the resolution to override the judicial decision.

Severability; Effective date.

(a) If any provision of this article or its application is held invalid, the invalidity shall not affect other provisions or applications of this article.
(b) This article shall take effect on a date determined by this legislative body.