Case: 21-51178
Document: 00516474571
Page: 9
Date Filed: 09/16/2022
No. 21-51178
reasons.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
450 (2008). Three bear emphasis here.
First, the judicial power vested in us by Article III does not include the
power to veto statutes. And that omission is no accident: The Founders
expressly considered giving judges that power, and they decided not to do so.
Several delegates at the Constitutional Convention suggested creating a
“Council of Revision” consisting of federal judges and the executive.
Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 954
(2018). They wanted to empower this Council to veto Congress’s legislation,
subject to congressional override. Ibid. A veto would render the legislation
“void.” Ibid. But despite the best efforts of James Wilson and James
Madison, the Convention rejected the proposal—three times over. Id. at
957–59. That means we have no power to “strike down,” “void,” or
“invalidate” an entire law. See id. at 936 (explaining that “federal courts have
no authority to erase a duly enacted law from the statute books” but have
only the power “to decline to enforce a statute in a particular case or
controversy” and “to enjoin executive officials from taking steps to enforce
a statute”); Borden v. United States, 141 S. Ct. 1817, 1835–36 (2021) (Thomas,
J., concurring in the judgment) (noting that “[c]ourts have no authority to
strike down statutory text” and that “a facial challenge, if successful, has the
same effect as nullifying a statute” (quotations omitted)); Kevin C. Walsh,
Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756 (2010) (explaining
that the Founders did not conceive of judicial review as the power to “strike
down” legislation).
Second, the judicial power vested in us by Article III is limited to
deciding certain “Cases” and “Controversies.” U.S. Const. art. III, § 2.
A federal court “has no jurisdiction to pronounce any statute, either of a state
or of the United States, void, because irreconcilable with the constitution,
except as it is called upon to adjudge the legal rights of litigants in actual
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