Just as the Senate takes on the question of how best to place judges on the federal bench, some in the House are considering a measure on how best to undermine them once they’re there.
Two members of the U.S. House reintroduced a bill yesterday to prevent federal courts from outlawing recitation of the Pledge of Allegiance, but said their focus will be on trying to make the Senate pass the bill. […]
The bill would prevent any federal-level court, from the district level to the Supreme Court, from hearing a challenge to reciting the Pledge. The bill would leave decisions to the state courts.
“We’re simply saying to the federal judiciary, we’re limiting their jurisdiction, saying that you don’t have authority to hear any claim that the recitation of the Pledge is in violation of the First Amendment,” [Republican Rep. Todd Akin of Missouri] said.
Oddly enough, that’s a pretty accurate description of the legislation. Right now, if someone wanted to file a federal lawsuit challenging the constitutionality of the 1954 law that added “under God” to the Pledge, a person could do that. He or she would probably lose, and there’s a real question over who has the standing needed to file such a challenge, but a federal suit could be filed.
Under Akin’s bill, a federal court couldn’t hear the case, even if it wanted to. It’s a little something called “court stripping” and it’s part and parcel of the Republican attack on the judiciary.
It’s important to note, of course, that efforts like Akin’s have more to do with politics than policy. Some in Congress introduce ridiculous bills they don’t expect to pass, but want to generate votes that can be manipulated for election purposes. When a similar effort on the Pledge came up last year, House Republicans practically admitted this had nothing to do with the law and everything to do with campaign fodder.
But motivations aside, bills like this are radical and dangerous schemes when it comes to the separation of powers and the existence of an independent judicial branch.
Put aside the question of whether Congress was right to add religious language to the Pledge 50 years ago, because that’s actually secondary. The principle is far more important: can Congress take away the courts’ ability to hear a case simply because lawmakers may not like the way the courts may eventually rule? (Maybe we should call it the “preemptive option.”)
As Rep. Judy Biggert, a Republican from Illinois said last year, lawmakers are playing with fire when they strip courts of their jurisdiction.
There is no direct precedent for making exceptions to the Supreme Court’s appellate jurisdiction, said Rep. Judy Biggert, R-Ill. […]
“The issue today may be the Pledge, but what if the issue tomorrow is Second Amendment rights, civil rights, environmental protection, or a host of other issue that members may hold dear?” she asked.
Exactly. Whether one approves or disapproves of the newer Pledge of Allegiance, anyone who takes our constitutional system of law seriously should shudder at what Republicans like Akin are up to here. For all the talk about judges legislating from the bench, most congressional Republicans are taking the same mistake and applying it to the legislative branch.
In other words, Akin and his colleagues believe Congress can pass a law and then stop courts from even considering the law’s constitutionality. It guts the principle of judicial review and moves the federal judiciary from being a co-equal branch to a subservient branch.
Also note that it’s not just Akin. Sen. Jon Kyl (R-Ariz.) has promised to sponsor a companion bill in the Senate. Tom DeLay has endorsed the idea that Congress can remove federal courts’ jurisdiction whenever he deems it necessary. Last year, when the measure came up in the House, the legislation had 225 co-sponsors, including almost every Republican in the chamber.
I mention this because we’ve reached a point in which virtually the entire GOP House caucus believes it is within their authority to simply reshuffle the separation of powers, take away the federal courts’ ability to hear certain cases, and the notions of an “independent judiciary” and a system of “checks and balances” simply don’t mean anything anymore.
It’s not, I’m afraid, just a few random nuts who are willing to endorse a radical agenda. It’s now the Republican “mainstream” — and that may be scariest part of all.