united-states case-law
Schweiker v. Chilicky
<p>Following the Supreme Court case Schweiker v Chilicky, can’t congress theoretically violate the Constitution as long as Congress provides a remedy?</p>
<p>What I mean is that: If I were a congressman, and a law that I wanted to pass violated, let’s say, the First Amendment, can’t I create a provision within the law that creates a commission to review all alleged violations of the 1st amendment under the law, but make the commission extremely biased, as to allow for 1st amendment violations?</p>

<p>No.</p>
<p>Congress could establish some sort of review board to address First Amendment violations, but it could not do so in such a biased way as to ensure there are no consequences for those violations, for at least two reasons:</p>
<ol>
<li>First, due process would require that any commission Congress established provide not only an opportunity to be heard by the commission, but also an impartial tribunal. The tribunal would not need to be perfectly unbiased, but setting up an &quot;extremely biased&quot; panel would be insufficient.</li>
<li>Second, even if Congress established a commission that satisfied due process, <a href="https://casetext.com/case/schweiker-v-chilicky" rel="nofollow noreferrer"><em>Schweiker v. Chilicky</em>, 487 U.S. 412 (1988)</a> would only prevent the courts from awarding monetary damages against the federal government; the courts would still be free to grant equitable and extraordinary relief to address First Amendment violations. So under <em>Schweiker</em>, if Congress established a commission to pre-screen all Facebook activity, you probably could not get money damages based on sales you might have expected to make if the commission had approved your Facebook ads faster, but you could get an injunction (or perhaps a writ of mandamus or prohibition) to stop the commission from screening your ads in the first place.</li>
</ol>
<p>The court's handling of First Amendment violations can often be different because free-speech rights are such a fundamental requirement of our form of government, but the analysis would be roughly the same for violations of Second Amendment or Third Amendment or Eighth Amendment rights.</p>
