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A healthy federal government depends on an ongoing conversation between the branches. But that is not currently happening. When Congress disagrees with the Supreme Court’s statutory interpretations, it tends to offer vitriol instead of a constructive response, accusing the court of being too political, or not political enough, whichever suffices. Congress must do better: At the end of each Supreme Court term, it should make a habit of embracing its core constitutional responsibility by providing statutory responses to the court’s decisions. This article, along with Americans for Prosperity’s publication “Congress Has the Floor,” suggests some tangible ways in which it can do so.
The branches in dialogue
One of the most lauded aspects of our federal government is the separation of powers between its different branches. But this separation requires a conversation between the branches as they try to exert their institutional interests, assert their views on constitutional meaning, and respond to actions by the other branches. This dynamic is well understood in the context of congressional oversight or judicial review of statutes or executive actions. One overlooked dimension, however, is how the elected branches should revise statutes following judicial interpretation of them. Specifically, when legislators conclude a different interpretation would better reflect congressional intent, or if they do not like the consequences of a court’s decision, they should debate the matter and amend the law. Civil society should likewise urge elected representatives to do so.
While congressional responses can come at any time and in reaction to various courts, the process should begin in earnest each summer at the end of the Supreme Court term. Congress should take stock of the past year’s decisions and respond when necessary. It has followed this path in the past.
One leading example of a legislative response to the Supreme Court involves the decision in the 1990 case of Employment Division v. Smith, which curtailed First Amendment protection for the free exercise of religion from laws stated in neutral and generally applicable terms. In response to Smith, Congress enacted the Religious Freedom Restoration Act. Finding that Smith dramatically weakened First Amendment protections for freedom of religion, Congress passed RFRA with the express purpose of responding to Smith’s holding by restoring religious protections and “provid[ing] a claim or defense to persons whose religious exercise is substantially burdened by government.” Under RFRA, the federal government cannot “substantially burden a person’s exercise of religion” unless it shows that imposition furthers “a compelling governmental interest” and “is the least restrictive means” to do so. In short, Congress responded to a constitutional decision by establishing a higher statutory floor to protect civil liberties.
Tobacco regulation is another example. In 2000, in FDA v. Brown & Williamson, the court ruled the Food, Drug, and Cosmetic Act did not authorize the FDA to regulate tobacco. After substantial debate, Congress responded by enacting the Family Smoking Prevention and Tobacco Control Act, the purpose of which was to establish the FDA “as the primary Federal regulatory authority . . .of tobacco products.” At the same time, the TCA prohibited the FDA from banning tobacco products. This moderating solution was among the policy choices Congress could make. The case demonstrates another benefit of Congress doing its job: the ability to make nuanced policy decisions that are not available to a court.
Yet another example is Congress’ response to the court’s interpretation of gender-based pay discrimination in Title VII of the Civil Rights Act. In 2007, in Ledbetter v. Goodyear Tire & Rubber Co., the court ruled that the deadline for suing was determined by the date on which pay level was set and not the receipt of each paycheck. This ruling limited employees’ ability to bring actions for pay discrimination. In her dissent, Justice Ruth Bader Ginsburg appropriately recognized that “the ball is in Congress’ court . . . to correct this Court’s parsimonious reading of Title VII.” Congress later did just that by enacting the Lilly Ledbetter Fair Pay Act, disapproving of the court’s interpretation of Title VII and concluding that it “unduly restrict[s] the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.” Congress then broadened the deadline for discriminatory pay claims by providing that “an unlawful employment practice occurs . . . each time wages, benefits, or other compensation is paid.” The act extended these changes to other statutes and made them retroactive.
These examples are far from exhaustive. A 2013 study by Professor Richard Hasen identified around 30 instances between 1991 and 2012 where Congress superseded Supreme Court decisions by statute. This appears to be the most recent empirical study of the matter, but, as far as we are aware, congressional responses appear to have slowed. Perhaps the most recent interesting legislative action in this vein was in 2022 when Congress responded to constitutional deficiencies in its regulation of the horse racing industry identified by the U.S. Court of Appeals for the 5th Circuit. But that kind of response has been an outlier. The more common response from Congress has been to avoid the heavy lifting of crafting viable legislation and instead to turn to threats of court packing or ad hominem attacks on individual justices. While hot rhetoric may get press attention, it dissipates congressional power and mischaracterizes the court as a mini-legislature.
Legislative opportunities after the 2025-26 term
Several recent decisions provide Congress an opportunity to respond. Below, we describe four: Learning Resources v. Trump, FCC v. AT&T, Rutherford v. United States, and Sripetch v. SEC.
Learning Resources v. Trump
The International Emergency Economic Powers Act is part of a suite of statutes granting the president certain powers if he declares an emergency. Section 1701 authorizes him to unlock those powers by declaring a “national emergency” with respect to an “unusual and extraordinary” threat from abroad “to the national security, foreign policy, or economy.” Section 1702 then authorizes the president to “regulate” “importation or exportation” to address the emergency. In Learning Resources, the Supreme Court held IEEPA does not include the power to impose tariffs or duties. Although the court limited the president’s ability to impose unilateral, global tariffs, Congress can still undertake a comprehensive review of IEEPA and related acts to either eliminate or severely constrain such emergency economic powers. For example, emergency authority could sunset after 30 days and only be extended if Congress expressly agrees with the president’s emergency declaration.
FCC v. AT&T
The Communications Act of 1934 authorizes the Federal Communications Commission to investigate and seek monetary forfeitures for violations through an administrative process. Under Section 503(b), the agency may impose penalties by issuing a notice of apparent liability, allowing for a response, and entering an order assessing a penalty. A recipient of such an order may either challenge it under the appropriate act or take no action. If the FCC wishes to collect the assessed penalty, it may refer the matter to the Department of Justice, which then brings a lawsuit in federal court, subject to the jury-trial right. In FCC v. AT&T, Inc., the Supreme Court construed Section 503(b) to not resolve legal obligations, establish facts, or create an obligation to pay. Therefore, Section 503(b) did not violate the right to a jury trial. Congress could amend Section 503(b) to require the FCC to notify companies that apparent-liability notices are not final and that they have a right to court review before they can be fined.
Rutherford v. United States
The First Step Act created a statutory mechanism for district courts to assess whether “extraordinary and compelling reasons” warrant compassionate release from federal prison sentences. The FSA also eased mandatory-minimum sentences, but those changes were not retroactive. This created a sentencing disparity between those convicted before and after passage of the FSA. In Rutherford v. United States, the court held that Congress did not allow courts to consider the sentencing disparity when deciding whether to grant compassionate release. Congress could clarify that courts may consider such sentencing disparities.
Sripetch v. SEC
The Securities Exchange Act of 1934 authorizes the SEC to seek “equitable relief that may be appropriate or necessary for the benefit of investors.” In Liu v. SEC, the Supreme Court held that this provision authorizes disgorgement (surrendering the profits of illicit activities). Congress later statutorily authorized the agency to obtain disgorgement as a remedy against a “person who received such unjust enrichment as a result of such violation.” In Sripetch v. SEC, the court held the SEC need not prove a victim’s monetary loss to obtain disgorgement. In a concurring opinion, Justice Clarence Thomas suggested disgorgement may also be a legal remedy subject to the Seventh Amendment’s jury-trial right. Congress could amend the statute to limit the SEC’s disgorgement power (1) to circumstances in which victims of securities violations suffered monetary harm, (2) to require that the SEC establish such harm in an Article III court, subject to the jury-trial right, and (3) so that any disgorged funds be awarded to victims.
And these are just a few of the court’s 2025-26 decisions that may warrant Congress’ attention.
Conclusion
Searching for the proper balance of power between the branches is, admittedly, a challenging endeavor. No institution can accomplish it on its own. Each branch has a role to play, as do state governments and civil society. One of the legislative branch’s jobs is to respond to the Supreme Court after it issues its opinions. It should stop complaining about the court’s decisions and actually address them. In other words, it is time for Congress to take the floor.
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For more information, please check out Americans for Prosperity’s publication “Congress Has the Floor,” a complete list of statutory-interpretation decisions from this past term and a few helpful suggestions to jumpstart the conversation.
