Strip the Courts

Republican Rep. John Hostettler of Indiana is a mechanical engineer, who made it his mission to serve among the lawyers on the House Judiciary Committee.

Before he came to Congress, he worked on maximizing the efficiency of coal burning power plants.

But listening to Dr. D. James Kennedy’s radio show on his homeward commute inspired him to start studying the facts behind constitutional controversies.  He soon discovered that our national charter was itself an exquisite mechanism, calibrated by its Framers to maintain a working balance between the branches of government.

Unfortunately, some of its parts had grown rusty from lack of use, allowing federal courts to usurp authority from Congress and the states.

Hostettler ran for Congress in 1994, intending to do something about that.  He was elected.  Eventually, he secured a seat on the Judiciary Committee.

Today, thanks in large part to his efforts, an often overlooked constitutional provision is being revived in the House.  It is Congress’s authority to limit the appellate jurisdiction of the Supreme Court.

Article III of the Constitution gives Congress the authority to create the lower federal courts and define their jurisdictions.  It also includes the “Exceptions Clause,” which says “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

In 2004, citing these constitutional provisions, Hostettler proposed the Marriage Protection Act (MPA) as an alternative to a constitutional marriage amendment.  It states that neither the lower federal courts nor the Supreme Court will have jurisdiction to hear cases challenging the Defense of Marriage Act (DOMA), signed by President Clinton in 1996.  DOMA says state governments need not recognize same-sex marriages contracted in other states.

Were MPA to become law, a person could still sue in state court arguing that a state’s marriage law violated the U.S. Constitution.  On appeal, the state supreme court could decide for or against the law based on its interpretation of the U.S. Constitution.

But that opinion would be contained within that state.  No federal court could take it up on appeal and use it to revolutionize marriage laws nationwide.

“This is superior to a marriage amendment,” Hostettler told me, “because I need the majority of the House, the majority of the Senate, and the president’s signature. I don’t need two thirds of the House, two thirds of the Senate, and three-fourths of state legislatures.”

A federal marriage amendment has twice failed to achieve the needed super-majorities in Congress.  But in 2004, the House approved Hostettler’s MPA, 233 to 194. Twenty-seven Democrats voted for it.

Later that year, the House considered a similar bill, the Pledge Protection Act (PPA), sponsored by Rep. Todd Akin, a Missouri Republican.  It would strip the lower federal courts of all jurisdiction, and the Supreme Court of appellate jurisdiction, to hear cases challenging to the Pledge of Allegiance.  It won 247 to 173, with the support of 34 Democrats.

When the House considered PPA again last week, the bill won 260 to 167.  This time, 39 Democrats voted for it.

The bill’s leading opponents have been reduced to half-hearted arguments that court-stripping is unconstitutional.  “Let us be clear,” said House Democratic Whip Steny Hoyer of Maryland.  “This bill is unnecessary and, I believe, probably unconstitutional.”

But that claim has already been demolished by Chief Justice John Roberts.

In the 1980s, when he was an assistant to then-Atty. Gen. William French Smith, Roberts was ordered to write a memo advocating the constitutionality of court-stripping legislation.  He produced a tour de force of constitutional analysis, pointing to “a long and consistent line of judicial opinions reading the exceptions clause as meaning exactly what it says.”

The first opinion was written in 1796 by Chief Justice Oliver Ellsworth, a George Washington appointee.  “The appellate jurisdiction is … qualified, in as much as it is given ‘with such exceptions, and under such regulations, as Congress shall make,’” wrote Ellsworth.  “Here, then, is the ground, and the only ground, on which we can sustain an appeal.  If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.”

A century later, in Colorado Central Consolidated Mining Co. v. Turck, the Court said:  “It has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”

The Supreme Court will only have the power to change the meaning of marriage, or ban the Pledge in schools, if Congress fails to enact the Marriage Protection Act and the Pledge Protection Act.

It is time to re-balance the constitutional machinery. Make both bills law this year.