September 23, 2004

House Votes to Strip Federal Courts of Pledge Jurisdiction

What the hell? I've never heard of this nonsense before, but apparently conservative congressmen have previously tried to go after same sex marriage and public displays of the ten commandments in the same manner. Here's an article from Newsday:

The House, in an emotionally and politically charged debate six weeks before the election, voted Thursday to protect the words "under God" in the Pledge of Allegiance from further court challenges.

The legislation, promoted by GOP conservatives, would prevent federal courts, including the Supreme Court, from hearing cases challenging the words "under God," a part of the pledge for the past 50 years.

And this is from the ACLU's press release on the issue:

The ACLU also pointed to a growing trend by some members of Congress to push similar court stripping measures. Similar measures under consideration consider the ability of the courts to review cases considering the legal definition of marriage, and the ability of courts to review the public display of the Ten Commandments. Passage of any of these measures, the ACLU said, would establish a dangerous precedent for Congress to respond to court decisions with which they disagree.

I wouldn't have thought that congress could legislate away the federal courts' ability to determine what is and is not constitutional (other than by amending the Constitution itself). See, e.g., Marbury v. Madison. Apparently, I would have been wrong.

The argument goes like this: The Constitution grants the federal courts original jurisdiction only in cases affecting foreign officials or when a state is a party. Other than that, any jurisdiction the federal courts have is granted to them by congress. And what congress giveth, congress can taketh away.

A not so controversial example is the "amount in controversy" requirement for diversity jurisdiction. The amount is set by congress, and congress perennially raises it. Each time they do, they effectively take away the courts' jurisdiction over certain cases.

One thing a legislature can't do is legislatively overrule a case already decided by a court, as was just demonstrated in the State of Florida in the right-to-die case. But theoretically, congress can remove the courts' jurisdiction over certain controversies in advance. That creates serious separation of powers issues.

And, as the ACLU points out, it would likely result in challenges that the pledge violated the federal Constitution in state courts, and different states would likely reach different results. That would leave us with something being constitutional in one place, but unconstitutional in another, and the federal courts would be unable to straighten it out.

This is a very, very bad idea. Perhaps you should let your senators know that.

UPDATE: The Washington Post had this to say in an editorial ("Strip This Bill") this morning:

How much power Congress has to block judicial consideration of the constitutionality of its laws remains, somewhat surprisingly, an open question -- because Congress wisely has chosen not to test the question. It has, rather, accepted judicial review -- the idea that the courts can strike down legislative enactments that offend the Constitution -- as integral to the system of checks and balances. So while legislators have sometimes been tempted to yank controversial matters from the court's jurisdiction, cooler heads have prevailed. They should prevail now too.

Apparently they did not prevail. (via How Appealing)

Posted by John at September 23, 2004 4:18 PM
Comments

Not so fast.

Yes, Article III says that, but it's subject to the due process clauses, and it's also subject to other amendments.

Plus, there's a separation of powers argument.

We'll see.

Posted by: Storm at September 23, 2004 4:51 PM

I'm not a constitutional scholar by any stretch of the imagination, but I do know that conservatives have been attracted for many years to the idea of withdrawing federal jurisdiction over particular substantive issues. The degree to which article III actually permits such topical gerrymandering is very much an open question, to my understanding. As is common with many pet conservative notions, this concept enjoys credibility largely by dint of its endless repetition in conservative commentary, and not, to my knowledge, from any substantial body of decisional law.

Among other difficulties, such an approach would effectively permit amendment of the Constitution by mere legislative majorities, as opposed to the supermajorities normally required.

Posted by: Peter Nordberg at September 24, 2004 7:12 AM

In the 1970's there were a number of law review articles about this. As I recall, Jesse Helms authored a bill or two that would restrict Federal trial courts from hearing school discrimination cases or abortion cases. The theory being (I think) that the states could hear these cases. The big question was weather the US Supreme Court's discretionary jurisdiction could ever be affected by the Congress.

(This was a long time ago and I didn't look anything up -- so it is just slightly more informed than an opinion.)

Posted by: Martin Grace at September 24, 2004 7:30 AM

It has been done before. In 1867, Congress passed a new law specifically to derail the pending appeal of one McCardle, a newspaper editor who had been found guilty of publishing "inflammatory" articles during Reconstruction, and who had been denied habeas corpus under the Habeas Corpus Act of 1867. The statute deprived the Supreme Court of appellate jurisdiction in any case involving that Act. In Ex Parte McCardle (1868), the Court ruled that it was unable to act based on this legislative exception.

A little later, in Ex Parte Yerger, the Court noted that the denial may not have been found legitimate if it had been broader, say if it had withdrawn all habeas jurisdiction from the Court.

In U.S. v. Klein (1871), by contrast, the Court invalidated a more clumsy statute, which directed that all petitions for recovery of property in certain cases involving former Confederates be dismissed for lack of jurisdiction.

Posted by: M. Sean Fosmire at September 25, 2004 12:37 PM

Here's why I think there has to be some due process limits on this concept. Whether or not it includes the pledge, I don't know, but I don't think this can be boundless and still have our system function.

Here's a scenario.

Say the pledge thing goes through. Someone is going to school in a federal enclave. Assuming they can even sue in state court (doubtful) would the state court be able to issue an order that could do anything?

You can imagine a lot of instances where these individual state determinations by state courts would be one thing, but they would provide no remedy against federal agencies or in federal enclaves.

There you have a situation where there may be a right with no remedy, and that (should) violate the due process clause. The Fifth Amendment modifies the original Articles.

There are probably other such scenarios where the system is thrown out of whack if the courts in other settings (federal criminal trials) would have to accept congress's definition of "probable cause" etc.

We'll see.

Posted by: Storm at September 25, 2004 4:30 PM