I know this can turn into a GD-esque thread, but I’m hoping it won’t. I am looking for a factual answer to a legal question I have.
I was reading this this thread which got me to reading up more about Rep Jean Schmidt. In her wikipedia entry, it states she supports a bill “to forbid Federal courts from hearing cases on the constitutionality of the Pledge of Allegiance”.
So how is this legal? Could they pass a bill that says “no courts created by acts of Congress put on trial or take any legal action against Mr. Tom DeLay” (Or I. Scooter Libby for that matter)?
Short answer: Yes.
Congress can, if they so desire, change almost anything about the court, except for its original jurisdiction as defined in the constitution. There has just never been enough support for taking away power such as judicial review for it to happen.
However, I don’t think Congress could do as you suggest. I forget the name of the principle, but Congress is restricted (correct me if I’m wrong) from enacting laws that target individuals. Although this may only apply to laws that negatively impact those individuals.
IANAL but I’ve read about this particular idea before.
A lot of people seem to think that yes, Congress has the power to deny the SCOTUS the ability to hear certain cases or certain classes of cases. However this isn’t an idea that has been heavily tested in the Supreme Court in many, many years.
From my layman’s point of view, on record I’d say yes Congress has the power to restrict the jurisdiction of the Supreme Court almost at will as long as we’re not talking about the Supreme Court’s original jurisdiction as spelled out in the constitution. There’s some good arguments against it however. Form what I’ve read there’s lawyers on both sides of this argument and the Supreme Court hasn’t, IMO given us a clear definitive answer. So I’d say we’re pretty much unsure how legal this is until it ultimately gets tested some day.
The most relevant case to look at is Ex parte McCardle.
This was a reconstruction case arising out of a law passed by the Congress intended to deal with rabble rousers and such. The military arrested William McCardle, a newspaper publisher, for writing incendiary articles.
He filed a habeas petition that was rejected by the circuit court. Keep in mind that Federal courts and many of the jurisdictions covered by the federal court system (and thus, ultimately the SCOTUS) had to be created by statute. None of it is spelled out in the constitution so it was up to the congress to create the court system legislatively.
McCardle’s habeas petition was rejected by the circuit court. An 1867 law provided him the right to appeal that decision to the Supreme Court. However congress simply repealed that law, effectively removing the court’s power to hear the case.
Chief Justice Chase said,
And the case was dismissed for want of jurisdiction. The SCOTUS had jurisdiction to hear this particular type of case, and Congress took it away, leaving the court powerless to act.
Reading the entire Ex parte McCardle decision is somewhat insightful and Chief Justice Chase does explore the issue to some degree. But while McCardle may seem to authoritatively say this type of action by Congress is okay, there are several important differences between that situation and the one we are faced with here.
In general I would lean towards this being constitutional. The constitution says congress can make regulations and exceptions to the appellate jurisdiction of the court, and I think this would fall under that.
But I honestly don’t think anyone will be able to give an answer on something like this until it has actually been tested in the real world.
I don’t think this necessarily needs to go to great debates. I think the factual answer is “legal scholars are unsure, and that the Supreme court would have quite a say in at as well.”
Congress created every court except the Supreme Court of the United States, which is specifically mentioned by the Constitution, and is the only judicial body required to exist under Article III of the Constitution.
The extent of the jurisdiction of federal courts cannot exceed what the Constitution grants, but Congress can limit the jurisdiction of the lower courts it creates to less than the whole of federal judicial power, and often does. Controversies between states, for example, must be heard originally in the Supreme Court, since lower courts have no jurisdiction to hear them.
The proposed bill would force anyone who wishes to contest the constitutionality of the Pledge of Allegiance file an original case before the Supreme Court. The Court would have to hear the matter, and make a decision, in accordance with its rules. Congress can’t keep the Supreme Court from hearing such a case, because the existence and scope of the Supreme Court’s jurisdiction is settled by Article III, which, by the way, was the main point underlying the Marbury v. Madison, case, a fact which is often lost in the ruckus over the concept of judicial review of federal and state law. The Supreme Court can’t be given power beyond what the federal courts are allowed by Article III, and Congress can’t remove entirely from the federal system any of the jurisdiction granted in Article III.
As for the rest of your OP, the Congress is allowed to make laws that apply to one person. It isn’t allowed, however, to pass a law that “attaints” a person, that is, punishes him or her for having been found guilty of a crime. In England, a person who was guilty of, say treason, could be “attainted,” that is, that person’s civil rights could be taken away.
Yes but I would argue that there are many areas that are clearly not in the jursidiction given to the supreme court in article three, or rather most jurisdiction isn’t specifically given in Article III.
The type of case that actually falls under original jurisdiction is exceedingly rare. And it is incorrect (and this is spelled out clearly in U.S. Supreme Court decisions and congressional acts) that absence of clearly spelled out jursidiction = default jurisdiction for the Supreme court. In fact the court itself has found that absence of a clearly spelled out jurisdiction means precisely the OPPOSITE of that, or rather that without the statute giving jurisdiction, jurisdiction does not exist and all the court can do is make reference to that and dismiss the case.
Well, I’ve looked at what I posted and I’ve got to admit I must have still had my mind on teaching fractions at school or something.
The Supreme Court’s original jurisdiction is limited (of course!) to what Article III says, which wouldn’t inlcude Pledge cases.
The question then becomes, must Congress effectuate the entirety of the scope of federal judicial power as outlined in Article III, Section 2? Or can it limit the actual enforced jurisdiction to less than that which is the maximum amount allowed? The answer, to date, has been that it can limit the scope of jurisdiction in the lower courts it creates. Thus, the Pledge bill would be a valid exercise of the right of Congress, under this view, to leave the people without a remedy in such cases.
There are opinions that get floated to the contrary, but they haven’t gained any real traction. So far.
Gotta wonder what I was thinking… :eek: