Between chaos and inflexibility: Congressional power to overturn constitutional decisions of the Supreme Court

One of the fundamental tenets of American constitutional law is that Congress cannot overturn, by statute, a constitutional rule announced by the Supreme Court. If the legislature is dissatisfied with a court's decision based upon a statute, then the legislature can pass a new statute which will become the new source of law for all subsequent judicial interpretations. However, when a judicial decision is based upon an interpretation of the Constitution, Congress is powerless to change the Constitution by mere statute and thus cannot change the source of law to be interpreted. Therefore, it is assumed that the Supreme Court's decisions interpreting the Constitution are final.; This study suggests that while this basic understanding is generally unassailable for most of constitutional law, it does not pertain for a small corner of the field. Congress has the power to overturn constitutional decisions in three specific areas: state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity, and the Dormant Commerce Clause. This study establishes that judicial decisions on these subjects create true constitutional rules and that the acceptance of Congress's power to overturn these decisions by statute is an adaptation which mirrors the structure of modern American federalism.; More generally, this study provides a thorough analysis of Congress's power to respond to constitutional decisions of the Supreme Court. It examines why the idea of Supreme Court finality over the meaning of the Constitution is objectionable to many constitutional theorists and why a more dynamic, multi-institutional, and multifaceted approach better comports with the theory and practice of American government. The Founders' understanding of political power, constitutional institutions, and human nature informs this study and will be highlighted. This study goes on to analyze the various actions that Congress can take in the wake of an unpopular constitutional decision. It sets out the various ways that Congress can retaliate against the judicial department but, more importantly, the ways that Congress has used its power to propose amendments to the states and to pass statutes in the three areas named above in order to overturn constitutional decisions.