Dispatches from the Creation Wars

Jurisdiction Limits Bill Defeated

Posted by Ed Brayton on June 29, 2006
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HR 2679 is not the only attempt by the religious right to rig the rules of the game because they keep losing. HR 2389, the “Pledge Protection Act of 2005″, is another bill to do the same thing in a different way, by limiting the jurisdiction of Federal courts to hear any case involving the pledge of allegiance:

no court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation.

The House Judiciary Committee voted 15-15 on the bill, effectively defeating it for this session. One Republican, Bob Inglis of South Carolina, crossed party lines to vote against the bill and prevent it from coming to a vote in the full House. It’s a narrow but important victory.

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Comments

  1. #1 SharonB
    June 29, 2006

    I don’t get it. Wouldn’t this be smacked down by the courts? What a danger to our constitutional form of government if legislature can pass a law that says, this is “not reviewable” by any court!

    Almost as bad as an executive that takes actions which may not be reviewed because the acts are “secret.”

    This stands the separation of powers on its head!

  2. #2 Ed Brayton
    June 29, 2006

    SharonB wrote:

    I don’t get it. Wouldn’t this be smacked down by the courts? What a danger to our constitutional form of government if legislature can pass a law that says, this is “not reviewable” by any court!

    No, the Congress actually does have such authority, though it’s not unlimited. Article 3, section 2 states:

    “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” It has rarely been invoked, and it’s not unlimited. I don’t know if it would be legal in this circumstance or not, since it involves taking jurisdiction away from an assertion of constitutional violation, which falls within the court’s original jurisdiction.

  3. #3 FishyFred
    June 29, 2006

    I don’t get it. Wouldn’t this be smacked down by the courts? What a danger to our constitutional form of government if legislature can pass a law that says, this is “not reviewable” by any court!

    Article III, Section 2 of the U.S. Constitution reads:

    “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

    Remember that judicial review was established in Marbury v. Madison, not in the Constitution. The upshot is that Congress appears to have such power. They just rarely have the stones to try it.

  4. #4 FishyFred
    June 29, 2006

    Sorry Ed, didn’t see your post before I submitted mine. It looks like I just missed though, so I don’t feel too bad.

  5. #5 Ed Brayton
    June 29, 2006

    FishyFred wrote:

    Remember that judicial review was established in Marbury v. Madison, not in the Constitution.

    I have to quibble with this. Marbury was the first time the court used its authority, but that authority is in the constitution – it’s just not called by that name (which is hardly unusual, you won’t find “separation of powers” or “checks and balances” in there either). Federalist 78, which explains and defends the wording of Article III of the constitution, is very clear that the judicial power created a Supreme Court “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

  6. #6 Matthew
    June 29, 2006

    True, but Madison and Jefferson thought that the court wasn’t the only body to hold that power; as they explain in the Virginia and Kentucky resolutions against the sedition act.

  7. #7 Steve V
    June 29, 2006

    But going back to SharonB’s initial comment, does it really make sense that Congress can enact a law and then simply say that no court can review it? Earlier in article III the Constitution states:

    ‘The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority …’

    Surely this strongly implies that all laws are subject to judicial review?

  8. #8 SharonB
    June 30, 2006

    Thanks, Steve V. Not a total idiot here, I know the fundies tout their alleged justification (art 3, sect 2) every time they have talked about doing this. My point was exactly, that it was contrary to the entire concept of checks and balances, and possibly subject to widespread abuse. Honestly, the Judiciary is the weakest branch of the government when one party controls both the Executive and Legislative branches.

  9. #9 Ed Brayton
    June 30, 2006

    The precedents are mixed on Art 3, section 2. In one case (ex parte McCardle), the Supreme Court said that they could not rule on a case even when Congress stripped them of jurisdiction in such cases after they’d already heard arguments on it. But that may well have been a primarily political decision by the court. That case took place during reconstruction, after the reconstruction Congress took up impeachment against Andrew Johnson for failing to be reconstructionist enough. The court may well have feared that if they didn’t acquiesce, it might prompt a constitutional crisis. But if you go by that precedent alone, then Congress has almost unlimited authority to strip the court of jurisdiction whenever they want.

    There are other precedents as well, but suffice to say for now that there are no clear lines drawn on this issue. Whenever it’s gotten close in the past to being a real standoff, someone has backed down before it became a full blown constitutional crisis – which it could very easily become. Imagine Congress stripping jurisdiction for something and then having the court overturn that legislation. Then what does Congress do? Strip their jurisdiction to hear jurisdiction stripping cases? It could very easily become a standoff that brings down our constitutional system, and I think that’s what the right is flirting with here. I don’t think this court will acquiesce as easily. Even Scalia would take a strong stand against an attempt to strip all Federal courts from hearing cases.

  10. #10 coturnix
    September 11, 2006

    New North Carolina law forces all schools to have the Pledge recited every morning. Is it still OK for individual students to opt out of it altogether or at least to skip “under God”? Please e-mail me or respond on the forums.