On July 23, by a vote of 307 to 119, the House overwhelmingly passed an amendment to the appropriations bill that funds the Department of Justice (HR 2799) that prohibits the use of any federal funds to enforce the infamous 9th U.S. Circuit Court of Appeals decision banning the pledge of allegiance as unconstitutional.
In that June 26, 2002 decision, Newdow v. U.S. Congress, a three-judge panel on that circuit ruled that the pledge violates the prohibition on state establishment of religion because it contains the phrase "one nation, under God."
Rep. John Hostettler (R.-Ind.), one of the House’s staunchest conservatives, proposed the amendment, as he explained it, to counterbalance a usurpation of power by the judiciary. "The founders of the United States set up a brilliant system of government consisting of three separate branches with unambiguous roles," he said on the House floor. "The Congress legislates, the President executes, and the courts judge."
Hostettler, calling the decision "ludicrous," pointed out that Alexander Hamilton wrote in Federalist No. 78: "The judiciary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm for the efficacy of its judgments."
Hostettler argued that Congress can exercise an important check against a judiciary gone wild by refusing to fund enforcement of the Ninth Circuit decision.
"When the legislative branch, that is, the Congress, believes the judicial branch to be in error, the Congress may refuse to fund actions to enforce the court’s judgment by the executive branch agency that would execute those judgments or, in Hamilton’s words, ‘depend on the arm of the executive for the efficacy of its judgments,’" he said.
Rep. Frank Wolf (R.-Va.) argued against the amendment because the Justice Department is opposing it. He began by stating that he, too, disagreed with the court’s decision, but that the Pledge of Allegiance is not in any true danger, thanks to prior Supreme Court precedent.
"Two decisions of the Supreme Court have said without qualification that the Pledge is constitutional," he said.
He quoted at length from the Justice Department’s memo in opposition to Hostettler’s amendment. "Consideration of this legislation at this point would probably be premature," the Justice Department argued, basically trying to prevent the court case from becoming moot before Justice can defend the pledge before the Supreme Court.
However, most conservatives supported the bill anyway, because congressional action to limit the power of the judiciary could set an important precedent against the liberal judicial activism that has undermined American popular self-rule over the last 30 years.
Presidential candidate Dick Gephardt (D.-Mo.), who has missed roughly 90% of all House votes this year, was absent as usual. Also missing was Democratic leader Nancy Pelosi (D.-Calif.).
A "yes" vote was a vote to prevent taxpayers’ money from being used to enforce the 9th Circuit’s ban on the Pledge of Allegiance. A "no" vote was a vote against the amendment.
| FOR THE AMENDMENT: 307 | AGAINST THE AMENDMENT: 119 |
| REPUBLICANS FOR: 216
Aderholt DEMOCRATS FOR: 91 |
REPUBLICANS AGAINST: 10 Castle Davis, Tom Frelinghuysen Gilchrest Houghton Kolbe McKeon Shays Tauzin Wolf DEMOCRATS AGAINST: 108 INDEPENDENT AGAINST: 1 |
NOT VOTING: 8
| REPUBLICANS (2): | DEMOCRATS (6): | INDEPENDENTS (0) |
| Ferguson Hensarling |
Berkley Conyers Davis (TN) Ford Gephardt Meek (FL) |
