It appears some of the more radical elements of the radical right want to take the SCOTUS out of the seperation of church and state debate.
Type in H.R. 3799
This is scary. Let’s hope sane minds in congress do the right thing and trash this.
Unless of course you think this is a good thing?
It should be noted that the public face of this is none other than Roy “10 Commandments” Moore, fronting the effort for the relatively obscure Congresscritters who are sponsoring this thing.
Politically, this bill might please the religious right. Legally, it is pointless. The federal courts do have jurisdiction over any question involving interpretation of the U.S. Constitution. Congress cannot deprive the courts of that jurisdiction, not without amending the Constitution. So, if the bill in question is enacted into law, and if a case involving a government “officer’s acknowledgement of God as the sovereign source of law, liberty, or government” comes before SCOTUS or any federal court, and if the court decides that presents a First Amendment issue, and if counsel on one side or the other argues that the court has no jurisdiction because of this statute – then the court can and will rule the statute unconstitutional, and proceed with the case.
BrainGlutton is correct.
This is kind of a rehash of the Religious Freedoms Restoration Act, which was intended to reverse a Court ruling that secular laws of general applicability could restrict freedom of religious practice if the law wasn’t intended to do so and a compelling interest could be shown.
SCOTUS told Congress where they could stick RFRA, as Congress should have known they would, because the SC decides what they have jurisdiction over.
You want to keep SCOTUS out of the Establishment debate, you’re gonna need an Amendment.
All the foregoing responses are correct: Congress may not remove from the judiciary jurisdiction which the Constitution plainly grants.
If I were advising this group and wished to further their interests, however, I might craft a bill that says: “Notwithstanding any other provision of this chapter, the Supreme Court shall have original and sole jurisdiction to review any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element’s or officer’s acknowledgement of God as the sovereign source of law, liberty, or government, and the Supreme Court may not delegate to any other party this jurisdiction, the power to find facts or draw conclusions of law.”
As I understand it, powers may not be withdrawn once delegated. Wouldn’t this be an unlawful redelegation of power in violation of the separation clause?
About the constitutionality…a quick google search got me to this site, which says:
Are they mistaken, and if so, how?
No, they aren’t mistaken. They are lying. The author of that article, or anyone with a solid grasp of English, can understand that the Constitution grants Congress no such right:
I’m assuming you didn’t bother actually checking the Constitution; Congress isn’t even mentioned in AIII, Section 2. All it basically says is, “The Supreme Court has jurisdiction over everything mentioned herein”. Congress’ power over the federal courts is limited solely to creating them (lower courts, that is), and approving SC nominees.
I’m also guessing you didn’t really check out the source.
I considered e-mailing this guy, but after a quick glance around his main page- www.chuckbaldwinlive.com - I’ve decided against it, given the “Truth about the Rebel Flag” link rather prominently displayed. I did read a couple of his commentaries on Bush, and they’re actually kind of interesting; he calls the Iraq war “a violation of international law”, such as it is- but surprising to hear from an arch-conservative.
I did find a few interesting side items in the bill itself, though, now that we’ve dispensed with the entree.
This section, which again is going to be shot down by a court as soon as it comes up, is, if I’m reading it right, attempting to remove the entire body of treaty law from American jurisprudence. Bricker- thoughts?
This little puppy may be even more interesting. It basically threatens judges who refuse to ignore this entire ridiculous waste of legislative breath with impeachment. Again, won’t fly, but whoever is sponsoring this thing is really trying to piss off the Court.
The plain text means that Congress cannot prevent the federal court system from considering cases “arising under this Constitution.” That jurisdiction is, indeed, vested in the federal court system by the Constitution. But it doesn’t say how Congress has to apportion that jurisdiction. That is the point Bricker was addressing with his proffered re-working of the legislation; by giving the original jurisdiction over the issue to the Supreme Court, it is doubtful that any such procedings would take place; the Court hates exercising original jurisdiction, and usually refers such cases to a special master for evidentiary procedings, which I believe Bricker’s wording would prohibit.
Nevertheless, I don’t think the people who have proposed the legislation really understand what the result would be. In essence, the plain meaning of the legislation would be that any case addressing such behaviour would be tried at the district level, then appealed to the circuit level, where any decision would be unappealable. It doesn’t appear to me that the circuit covering the South is any more likely to support a significantly more conservative construction of the establishment clause of the First Amendment than the Supreme Court would. And there are thorny issues about whether Congress really can prevent the Supreme Court from exercising appellate jurisdiction over inferior courts it has established; a very reasonable construction of Article III, Section 1 is that the Supreme Court shares the federal jurisdiction with inferior courts; it can’t be precluded from exercising that jurisdiction by Congress.
Still, it is incorrect to assert that Congress is limited to creating lower courts; Congress routinely passes legislation regarding the powers and procedures of the courts, and since the most likely source of any case before the courts addressing the issue the legislation concerns would be through the Fourteenth Amendment’s due process clause, Congress is specifically authorized by that amendment to implement legislation neccessary to carry out the Amendment, including, arguably, establishing jurisdictional limits to review.
dutchboy208, you didn’t quote the entire section. Subsection 2 of Section 2 reads:
“…with such exceptions and under such regulations as the Congress shall make.” I believe that’s the bit that’s relevent here.
The exceptions refer to Congress granting the SC original jurisdiction in certain areas. The Congress does not have the right to withdraw jurisdiction.
All this legal wrangling is essentially meaningless in the grand scheme of things because there’s no way SCOTUS would withdraw themselves from any portion of the business they’ve been doing since Marbury v. Madison and that Federalist wunderkind John Marshall. It’s one of those wonderful areas where division of the branches really shows up. It wouldn’t be the first time a branch went rogue (see: a large chunk of Andrew Jackson’s Presidency) on certain issues and it certainly won’t be the last. The only way Congress could get this thing enforced is by rallying enough votes to impeach most, if not all, the Supreme Court and that just ain’t gonna happen even at the best of times.
The Exceptions Clause does give Congress the power to limit the appelate jurisdiction of the Supreme Court. In Ex Parte McCardle, (1868) Congress put the brakes on a newspaper editor’s writ of habeas corpus by withdrawing a section of the federal statute that gave SCOTUS jurisdiction over his appeal, saying “’’[w}e are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” However, the same year a man named Yeager appealed a writ of habeas corpus to the Supremes under a different statute and was granted review. In other words, Congress can limit the avenues one can take to apply for a writ of habeas corpus, but can’t just flat out take away jurisdiction over all habeas corpus cases challenging the constitutionality of the Reconstruction statutes.
The same would apply here. Many people who are unhappy with a particular decision want to use the Exceptions Clause as a constitutional loophole: don’t like a ruling about the Constitution? Pass a law overturning federal precedent and deny the Supreme Court the power to reveiw it on appeal! Doesn’t work that way. It’s generally accepted that no provision of the Constitution can override another. Both must be read together. Congress can’t legislate away constitutional rights and restrictions. Most jurists read McCardle and Yeager as standing for the proposition that Congress can enact content neutral restictions on federal appellate power, e.g. procedural or jurisdictional laws to reduce caseloads, but may not use the exceptions clause to remove an entire class of cases from judicial review or attempt to direct substantive outcomes. To say otherwise would be to allow Congress to do with it’s right hand what it can’t do with it’s left.
That’s what this bill is attempting to do. For the record, it’s not even that new of an attempt. Jesse Helms has been trying to do the same thing for years with abortion cases. Pretty much just smoke and mirrors to wow the folks back home, and something else to get incensed about when our “out of control judiciary” swats it down.
This is an inaccurate statement. Not even Chief Justice John Marshall attempted so much. Justice Marshall attempted to assert that, in the absence of federal legislation, the appellate jurisdiction of the Supreme and federal courts was the whole of the possible appellate jurisdiction available under the subject matter grant of the Constitution (see, e.g., Durousseau v. United States, 10 U.S. (6 Cr.) 307, 313 -314 (1810)).
But Justice Marshall’s view has not been retained as the law of the land. Indeed, the Supreme Court applied a different concept prior to the Civil War, accepting that the appellate jurisdiction (which it has concluded includes the issuance of writs of mandamus and habeas corpus under sections 13 and 14 of the original Judiciary Act, see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803); Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 99-101 (1807)) it has under the Constitution must be conferred upon it by act of Congress, puruant to the phrase from paragraph 2 of Section 2 of Article 3, “with such Exceptions, and under such Regulations as the Congress shall make.” This point was emphasized most strongly in Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869). In that case, after the Court had taken up the appeal by McCardle of a decision by the lower courts upholding the constitutionality of the Reconstruction Acts, concluding that the Act of 2/5/1867 conferred such appellate jurisdiction, but before they had ruled on the merits of the appeal, Congress passed an act (over President Johnson’s veto) withdrawing the right of appeal in cases such as McCardle’s. The Court promptly issued a dismissal of the case, noting that,
It should be noted that it took Congress about 100 years to provide for an appeal from criminal cases in the federal circuit courts (unless the inferior court certified it was divided upon the question of guilt). That’s a pretty basic and common appeal in today’s federal litigation; imagine if Miranda had not been able to appeal his conviction.
So it is not correct to view the Court as having an unadjustable appellate jurisdiction. Quite the opposite is true. Still, as my old hornbook on Con Law noted, even if Congress withdraws appellate jurisdiction, it cannot withdraw subject matter jurisdiction. The result (as was the case in federal criminal law for 100 years) is that the lower federal courts become the final arbiters of the issues in question.
No.
The federal courts are the creation of Congress. While Congress cannot remove jurisdiction from the courts, it could, prefectly legally, require the Supreme Court to exercise orginal jurisdiction and even prohbit the appointment of a special master to make findings of fact. This would not directly advance the drafter’s goals of keeping the Supreme Court off the God playing field, but as a practical matter, it would severely limit the Court’s ability to address these issues, since they would have to commit their time to actually preside over trials whenever the issues arose.
Bear in mind I don’t remotely support such an approach, but if I were of counsel to the legislators that were writing this thing, that might be the direction I’d have them go.
IANAL, so this is strictly IMHO but doesn’t intent count for anything? The intent would clearly be to keep them “off the God playing field” as Bricker says. Is a law constitutional when its obvious intent is to interfere with the enforcement of constitutional protections?
Even forgetting intent, is it constitutional if it’s practical effect is to massively interfere with the enforcement of those protections?
I’m unaware of any constitutional case law standing for the proposition you advance.
Fair enough, so I’m advancing a new argument. Isn’t that allowed? If congress can use such tricks to intentionally interfere with constitutional protections then don’t those protections become meaningless?