Question

What two actions could Congress take to undo a Supreme Court ruling that a federal law is unconstitutional? Explain the advantages and disadvantages of each action

Answer 1

There are many more than two. One of the most obvious is for Congress to interact with the President in such a way that they both ignore the Supreme Court. Congress, the President, and the Supreme Court are constitutionally co-equal: they are *each* entitled to interpret the Constitution as they see fit, and no one of them has any higher claim to authority on what the Constitution actually says. Hence "constitutionality" is in fact a messy eternal struggle between all three branches, in which there is a lot of informal give-and-take. In the end, whichever is most strongly supported by the people usually wins the argument, which is pretty much what the Founders intended.

You will certainly find lawyers and Supreme Court justices who argue that the Supreme Court has the final say on what the Constitution says. Naturally. But that doctrine isn't part of the Constitution, you'll find -- it's a power merely asserted by the Supreme Court in Madison v. Marbury, and the two other branches have generally, but not universally, assented to it, for their own reasons. You will find that every President says he is entitled to interpret his Article II powers (e.g. in wartime) all by himself, for example.

In any event, typically the Supreme Court only finds relatively unimportant laws unconstitutional -- important to individuals, yes, but not very important to the aims of Congress. The last time there was a *serious* conflict between the aims of a Congressional majority and the Supreme Court was during the New Deal, and the result is that SCOTUS folded like a cheap suit, and there has never since been any serious attempt by the Supreme Court to rein in the will of the majority in Congress. A good recent example is the recent decision by the Roberts Court upholding "Obamacare" (the Patient Accountability and Care Act). The decision was widely panned as ludicrous in its logic, neither fish nor fowl, and it's considered that the Roberts Court -- and Roberts himself -- simply wanted to avoid rocking the boat.

When the Supreme Court declares a minor law unconstitutional, Congress can do nothing about it, or they can just modify the law a little bit so that it passes review by the Supreme Court. Usually the Supreme Court will give indications in its ruling about how that can be done.

In principle Congress could much more formally overrule the Supreme Court by passing an Amendment to the Constitution on the subject, and sending it to the states for ratification. That in fact happened with the income tax: it was passed after the Civil War by Congress to help pay the debts from the war, then declared unconstitutional by the Supreme Court in the late 19th or early 20th century, I forget which. Congress responded by passing the 16th Amendment, authorizing an income tax, which was duly ratified by the states.

So those are probably your two answers: modify the law or propose a Constitutional Amendment.