What happens when the Supreme Court declares that provision unconstitutional?

FWIW, the fact that the low point of his administration is compared to business as usual for the right wing (Save the flag by wiping your ass on the constitution) is telling.

You’d think it would be irrelevant because the judiciary should be ruling on the law (not what they think of it).

Unfortunately, as we’ve seen, the judiciary has become a defacto legislative arm of the government (statists 1, constitution/citizens – 0)

And when did political parties begin to claim �control� of the Judicial Branch?

I think it happened some time around 1937…

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress – a super-legislature, as one of the justices has called it – reading into the Constitution words and implications which are not there, and which were never intended to be there.

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.

I want – as all Americans want – an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power – in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

How then could we proceed to perform the mandate given us? It was said in last year’s Democratic platform, and here are the words, “if these problems cannot be effectively solved within the Constitution, we shall seek such clarifying amendments as will assure the power to enact those laws, adequately to regulate commerce, protect public health and safety, and safeguard economic security.” In their words, we said we would seek an amendment only if every other possible means by legislation were to fail.

When I commenced to review the situation with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have judges who will bring to the courts a present-day sense of the Constitution – judges who will retain in the courts the judicial functions of a court, and reject the legislative powers which the courts have today assumed.

FDR, Fireside Chat on Reorganization of the Judiciary, March 9, 1937

“The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court … to the extent that judgment concerns the constitutionality of an Act of Congress.”

So, no more Constitution, in effect, because won’t be able to regulate the populists in Congress who will always be swayed by the fashion and discriminatory tendencies of the majority.