ABSTRACT
This chapter focuses on judicial review of the national legislative powers. Judicial review of the scope and breadth of delegated legislative powers is very different from judicial review to enforce constitutional limitations. There is a textual basis for judicial review of state laws challenged in litigation as conflicting with national laws or the Constitution. A federal system requires a final umpire to resolve conflicts between state and national laws and constitutions. Neither constitutional text, nor its history, nor its structure provides support for judicial review of congressional statutes enacted pursuant to the delegated powers of Article I. Most authorities assert that there is no textual basis for judicial review of national substantive laws. Most of the critics of judicial review have failed to distinguish its application to constitutional limitations from its application to delegated powers. Under the separation of powers, the Congress may not impose non-judicial functions on the courts or subject judicial determinations to executive revision.
