Thursday, September 23, 2004

House Says SCOTUS Can't Rule on "Under God" Pledge Controversy

Another interesting CNN article entitled House bill would block Supreme Court on Pledge:
The House passed legislation Thursday that would prevent the Supreme Court from ruling on whether the words "under God" should be stricken from the Pledge of Allegiance.
The bill, which the House approved, 247-173, would prohibit federal courts, including the Supreme Court, from hearing cases involving the pledge and its recitation and would prevent federal courts from striking the words "under God" from the pledge.

The legislation has little chance of advancing in the Senate this year, but it laid down another marker for politicians seeking to differentiate themselves from their election opponents on volatile social issues of the day.
"Far from violating the 'separation of powers,' legislation that leaves state courts with jurisdiction to decide certain classes of cases would be an exercise of one of the very 'checks and balances' provided for in the Constitution," said Rep. James Sensenbrenner, R-Wisconsin, chairman of the Judiciary Committee.
"Under God" has been part of the pledge since 1954, when Congress passed and President Eisenhower signed a law amending the pledge to include the phrase.
I am carefully avoiding the political lines drawn and the political implications of the legislation and its timing. The CNN article briefly includes some quotations and speculation about that. Funny enough, there's really nothing conclusive that can be said on that point.

Far more interesting, imo, are the implications regarding judicial review. (The separation of powers aspect doesn't do as much for me although it is implicitly tied into the judicial review consideration.) To some degree, I am shocked by the attempt of this bill to curtail the jurisdiction, not of federal courts in general, but of the Supreme Court ("SCOTUS") in particular. That just screams out to me. And it's screaming: "What the Hell are you thinking?"

I can't think of anything I've learned that says the Supreme Court cannot review ______ for constitutionality. Heck, ever since Marbury v. Madison that has been one of SCOTUS' primary purposes! If this bill were upheld (although that would probably mean that SCOTUS would have to uphold a bill inherently limiting its ability to review that bill...), it would be akin to poking a hole (and a pretty BIG one at that) in Marbury v. Madison itself!


During the break, I just spoke with one of the teachers, a CT State Superior Court Judge, of my Forensics Class (in which I am typing this) about this legislation. He agreed that it seems patently absurd. He stated that in the absence of a constitutional amendment, it seems unlikely that legislation could curb the jurisdiction of SCOTUS as it relates to judicial review for constitutionality.

He did note that SCOTUS routinely does consider whether or not it itself has jurisdiction to hear a case, so that would not be new. However, it would be strange for SCOTUS to consider the constitutionality of legislation designed to prevent SCOTUS from considering certain subject matter of which the legislation addresses. A catch-22 if you will.

And, as I mention above, if the legislation were upheld, it would effectively poke an enormous hole in Marbury v. Madison. One logical follow up question is what's next? This is the old "slippery slope" argument. (Ugh! How I despise that terminology though it is very appropriate here.) If the Legislative Branch can remove certain subject matter from falling under review for constitutionality, this poses a big problem. Gee, legislation would no longer have to be constitutional. (PATRIOT Act anyone?) And that my friends would probably not be a good thing at all.

I'll be keeping my eyes open for further news pieces on this pending legislation. Although it seems the Senate won't vote on it for a while, I'm kind of afraid that the Senate might possibly let it through. Throw in a subsequent 1+ year delay until SCOTUS gets the case and things could become unpleasant. Well, either way, it makes for good legal discussions. (Hence this lengthy post!)