A bill to prohibit any federal court other than the Supreme Court from invalidating the Pledge of Allegiance has attracted 220 co-sponsors, and supporters expect it to pass the House and then get major backing in the Senate.
The movement for the bill was sparked by a ruling issued last year by the federal appeals court in San Francisco that held that the words "under God" made it unconstitutional to recite the Pledge in a public school. If enacted, the bill will have the effect of preventing any court outside the Western states governed by the San Francisco-based appeals court from declaring the Pledge unconstitutional prior to an expected Supreme Court review of the San Francisco decision.
The Pledge Protection Act of 2003 (HR 2028) is sponsored by Rep. Todd Akin (R.-Mo.) and numbers among its co-sponsors House Speaker Dennis Hastert (R.-Ill.), House Majority Leader Tom DeLay (R.-Tex.), and House Majority Whip Roy Blunt (R.-Mo.). The bill could set a precedent for using congressional power to thwart judicial activism.
Sending a Message
Rob Schwarzwalder, Akin's chief of staff, says the bill not only protects the Pledge but also sends a message to the lower federal courts. "They operate at the will of Congress," he said. "They are not there to make law or implement social policy." He noted that Congress has exercised this power many times in the past. "Congress has over 200 times restricted the federal courts' jurisdiction," he said. "Senate Minority Leader Tom Daschle [D.-S.D.] inserted into legislation last year something prohibiting the courts from hearing cases regarding brush clearing in South Dakota."
The bill says: "No court established by Act of Congress shall have jurisdiction to hear or determine any claim that the recitation of the Pledge of Allegiance, as set forth in section 4 of title 4, violates the first article of amendment to the Constitution of the United States."
Another GOP staffer familiar with the bill explained that it does not restrict the Supreme Court's jurisdiction because although Congress does have the power to do so, "The extent of that [congressional] power is more debatable than the power to limit the lower courts. This is primarily a pragmatic decision for us." He noted that it is very hard to get a case to the Supreme Court in any case.
After the House passes the bill, Sen. Jim Talent (R.-Mo.) will be its primary sponsor in the Senate. Senate Judiciary Committee Chairman Orrin Hatch (R.-Utah) has indicated to Akin, says Schwarzwalder, that "he is interested in the bill."
Meanwhile, Republican House members have begun a new House Working Group on Judicial Accountability to consider other legislative steps to rein in activist judges. When asked if the group would consider restricting the jurisdiction of federal courts, Rep. Lamar Smith (R.-Tex.), a co-chair of the group, said, "I'm not going to rule it out."
Earlier this year, Rep. John Hostettler (R.-Ind.) succeeded in attaching amendments to the Commerce, Justice, State appropriations bill that would prohibit the federal government from spending money to enforce court decisions invalidating the Pledge and ordering the removal of the Ten Commandments from the Alabama Supreme Court building. Gary McCaleb, legal counsel for the conservative Alliance Defense Fund, however, argues that this strategy will not be as effective as directly restricting the jurisdiction of the courts, which "Congress clearly has constitutional authority to do." If Hostettler's amendments survive the Senate, McCaleb predicted, there could be "a five- to ten-year litigation cycle while people make sense of it."
