[Congressman Billybob]

No, the decision of Congress on how to count the Electoral College votes in a disputed Presidential election can NOT be appealed to the Supreme Court. Witness the Hayes-Tilden election, decided by a single vote in the College, after a special Commission in Congress awarded ALL of the disputed College votes to Hayes.

In many clauses, the Constitution gives the power to do a certain act only to a certain individual or group -- the President, the Senate, the Congress, the states, the state legislatures, etc. When such a specific commitment is made, not only is the Supreme Court powerless to change that, it is also obligated by its oath of office to support such commitments -- because they are part of the Constitution.

The whole doctrine of separation of powers is based on obeying these specific divisions of responsibility that were placed in the Constitution to create the "checks and balances" by which each part of government is intended to be a watchdog over the others. There have been more than a few failures in this area, especially in the last fifty years. But the general theory is still alive and well.

Congressman Billybob

[inquest]

I was basing my statement on the ruling in Powell vs. McCormack, from 1969, when a Congressmen brought suit in federal court after he was denied a seat by Congress. Justice Warren (take his opinion for what it's worth) wrote:

"Respondents first contend that this is not a case 'arising under' the Constitution within the meaning of Art. III. They emphasize that Art. I, 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that under Art. I, 3, the Senate has the 'sole power' to try all impeachments. Respondents argue that these delegations (to 'judge,' to 'punish,' and to 'try') to the Legislative Branch are explicit grants of 'judicial power' to the Congress and constitute specific exceptions to the general mandate of Art. III that the 'judicial power' shall be vested in the federal courts. Thus, respondents maintain, the 'power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed.'

We reject this contention. Article III, 1, provides that the 'judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish.' Further, 2 mandates that the 'judicial Power shall extend to all Cases . . . arising under this Constitution. . . .' It has long been held that a suit 'arises under' the Constitution if a petitioner's claim 'will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another.'"