The House Republicans have a new strategy to to reel in what they see as judicial activism run amok. They voted to prohibit the U.S. Marshals Service from enforcing rulings that public schools may not recite the Pledge of Allegiance and that a courthouse may not post the Ten Commandments. Rep. John Hostettler, Indiana Republican, who sponsored these amendments to a House spending bill, said,
Going after a court decision by defunding its enforcement is a new approach, according to Barry Friedman, a law professor at New York University:
Rep. David R. Obey, Wisconsin Democrat, speaking on the House floor about the Ten Commandments amendment, said the legislation won’t do anything. He added that because the Justice Department doesn’t actually enforce the decision, defunding its ability to enforce it has no effect.
Keith E. Whittington, professor of politics at Princeton, said that while Congress can curb statutory authority, it is questionable whether Congress can go after a court decision on a constitutional matter — in these cases a question of the establishment of religion, which is prohibited by the First Amendment.
But Mr. Hostettler said he has researched the approach and believes it’s sound.
Questions for debate:
Is this Constitutional?
Is it proper behavior for Congress?
Will it work?
IMHO the weakness of this approach is its strength. It won’t prevent enforcement of the SC’s decisions, so it might just get signed into law. However, it does send a warning to the courts not to go too far in rewriting the Constitution.
What does this have to do with rewriting the Constitution?
And of course, I’m tempted to add, december, that threatening the Supreme Court not to overstep their bounds is pretty ballsy for a guy supporting a President who was put in place by that Court…
To offer a more in-depth reply: really, this is just bullshit posturing. As december notes, the judicial branch is not responsible for enforcement, so this is unnecessary. And I don’t think the case in question has also not even reached the Supreme Court, which could make it doubly unnecessary. And third, I think Airman is right that it’s capricious and silly. One wonders what would’ve happened had the Congress voted a few years ago not to “enforce” the ruling in Bush v. Gore.
On the other hand - perhaps this is the Constitutional part - what the Supreme Court rules is considered to be the law of the land. I think that the idea that the House will vote that they will not enforce the law because they think their constituents won’t like it is scary. What if they’d thought to vote this way after Brown v. Board of Ed? What if the government hadn’t enforced that ruling?
I think that Congressional control of the purse is something that is pretty much sacrosanct. Its a very effective, and intended check on the other two branches.
Anyone want to help me out here and clear this up? Can Congress cut off funding for anything they don’t approve of?
Law enforcement already chooses what laws to enforce and what laws to ignore. The fact that most of the ignored laws are ridiculous, petty things (against miscegenation, eating onions on Sunday, etc.) is irrelevant – they’re still on the books.
It would be a simple matter to remove them, but no one feels it worth the effort to do so. Instead, we ignore them.
Certainly. And it happens every single budget cycle. They hold the purse strings so funding is in their hands. Technically, they could vote to KILL the budget and just not fund the government for a year.
Whether the courts could rule that an attempt to cut funding to prevent the enforcement of a specific court action would be a violation of C&S (and therefore subject to sanction) I’m going to leave to someone better versed on that side of the triangle.
Grandstanding. Authority to enforce Supreme Court decisons generally falls to the U.S. Marshals Service, but ultimately rests in the President who directs the entire executive branch to enforce SCOTUS decisions. If you cut off funding to the U.S. Marshals, better be prepared to do it to the National Guard and the 101st Airbourne.
The U.S. Marshalls are mostly ceremonial really. Defunding them is a slap at the court, but not really any sort of direct move to overturn their rulings.
Suppose my local public school orders my child to recite the Pledge of Allegiance. I go to federal court and get a court order ordering them to stop, because the federal courts have determined that this violates my child’s constitutional rights.
What ordinarily happens next? Somebody, I presume, has to serve the court order upon the relevant school officials. Does a federal marshal do this? Does he or she normally take orders directly from the judge? And is Congress now saying that the marshal should examine the order, determine whether it pertains to a Pledge of Allegiance case, and, if it does, refuse to serve it?
Assuming that the court order somehow gets served, the school must then determine whether to obey. If they do, there is no further problem. If they don’t, I presume in normal circumstances they would be in contempt of court. What happens then? Does a judge have to refer the case to a federal prosecutor? And will the prosecutor now be instructed to ignore the case?
Encouraging people to defy court orders just doesn’t sound like a good idea.
Actually, the U.S. Marshals Service is a fully functional law enforcement arm of the Department of Justice, charged with protecting the judiciary and enforcing rulings, transporting prisoners, managing seized assets, tracking down and arresting federal fugitives (which they do more than all the other branches put together) witness security, tactical operations, and so on.
The thing is, the Marshals Service is only one branch of the executive charged with these tasks. If Congress were to cut funding to the Marshals Service, the President would be obligated to enforce Federal Court rulings in another manner. If what they’re actually proposing is placing a limit on the President’s ability to enforce certain constitutional decisions by Federal Courts against the states, good luck. Any such measure would be struck down 9-0 by the Supreme Court (citing Marbury v. Madison), and no modern President would be willing to undermine the authority of the Federal Courts in such a manner regardless of what they may think of an individual decision.
Ahh the beauty of constitutional checks and balances. The supreme court decides whether its contstitutional or not. If they find that the congress cannot impede a separate and equal branch of the US govt from performing its duties, then the law is struck down and there isnt anything Congress can do about it.
Of course it is. The Congress controls the pursestrings. They decide who gets paid and how much. If they want to pass a law not fund the US marshalls, they can. If it passes constitutional muster then they would have to contend with a weakened Marshalls service coming to the Congress’ aid in a future situation where they would be needed.
I dont think so. I can already see flaws in the the way it is worded in the OP. I’m sure the Supreme court will write this off as a weak attempt to infringe on the the Judicial system. It may be a slap in the face but the Supreme court can easily slap back.
I both confused myself (I was thinking of the SCs court officers) and phrased this the wrong way. What I meant was not that the Marshalls don’t do anything, but that in most respects their duty in enforcing court rulings is ceremonial, because rarely is this role necessary, and when it is, bigger guns are needed anyway.
Ordinarily, your child’s school will have answered your complaint and after argument their attorney will have recieved any court order from the judge by certified mail, sent by the district clerk’s office. If they don’t comply, the judge will issue an order for their attorney to appear to show cause as to why they should not be held in contempt. If they still don’t comply, the judge may issue a writ of attachment that will be served and enforced by the Marshal Service. This is one reason that the proposal is chicanery; Congress doesn’t allocate money to the Marshal Service to serve this order or that order any more than they allocate money for what their individual bullets may be shot at. One writ of attachment for contempt is like another like one bullet is like another. Hostettler’s proposal doesn’t cut off funds in any way, it merely states that funds appropriated may not be used to enforce certain decisions. That won’t fly and he knows it, or should. It’s just grandstanding to gain the approval of religious conservatives.
