House moves to take Pledge cases away from courts
A measure that faces an uncertain future in Congress — to strip the Supreme Court and all federal courts of authority to rule on challenges to the wording of the Pledge of Allegiance or its recitation, including in public school classrooms — was passed by the House Wednesday afternoon. The vote was 260-167.
The language of the bill (H.R. 2389) is simple: “No court created by Act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation.”
The Pledge’s language, as defined in Title 4, Section 4, is: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”
That, of course, includes the phrase “under God.” The Supreme Court in Elk Grove United School District v. Newdow in 2004, avoided a ruling on the constitutionality of that phrase when public school students are led in reciting the Pledge. The Court found that the challenger had no right to sue. That case has returned to lower courts, and is now pending in the Ninth Circuit Court, with new parties. The issue remains whether it is unconstitutional for public schools to lead students in the recital of the Pledge, with the phrase “under God” included in the recital.
Before passing the jurisdiction ban on Wednesday, Congress adopted on a voice vote an amendment to H.R. 2389 specifying that the law would be effective immediately and would apply “to all pending and future litigation.”
The outlook for the measure in the Senate is said to be unclear at this point. The measure was hugely popular in the House, attracting 198 sponsors out of the 435 members.
There is some irony in this, since the 9th Circuit’s final ruling in Newdow didn’t deal with the actual working of the statute, but rather leading kids in its use. Indeed, I don’t think Newdow’s current lawsuit challenges the wording, either.
Oh, and this is just a cheap publicity stunt. Indeed, even though I think Newdow is correct, if I was in Congress, I would vote for it, just to get on the good side of the religious-types.
Comment by S. COTUS — July 19, 2006 @ 8:14 pm
I’d rather they withdraw jurisdiction from the federal courts to determine mental retardation, competency and methods of execution. But this is as good a place to start as any. The federal courts could use some wing-clipping.
Comment by federalist — July 20, 2006 @ 12:32 am
Not a good idea. State courts in at least some states will get this wrong, and others will get it right. Without Supreme Court appellate jurisdiction, we will have a patchwork.
I think we can count on the Supreme Court as presently constituted to get this right.
Comment by Kent Scheidegger — July 20, 2006 @ 12:43 am
“to determine mental retardation, competency and methods of execution”
So, federal courts, for federal crimes, are now not to judge “competency” to stand trial etc. This sounds logical. As to “method of execution,” this is beyond what even Scalia supports, given he has written this is actually something the 8A actually was intended to cover. But, you know how “activist” he is!
The fact more than a handful of Democrats signed on to this law is depressing … clearly the problem of cheap political pandering to the anti-court set has bi-partisan support.
per Kent, yes, this can be ironic. Let’s say the state court in CA decides the ninth circuit panel was right. No federal court could overturn them. Of course, court stripping for selective establishment clause cases is a particularly troublesome way to “cut the wings” of the courts.
Anyway, I doubt the Senate passes this thing. It isn’t quite as important as say flag burning.
Comment by Joe — July 20, 2006 @ 2:14 am
I think we are missing the point.
First: Is it possible for Congress to strip the Supreme Court of its appellate jurisdiction. Probably not. So, doing so is a good way to placate religious political-types without doing any violence to our system of government.
Second: The bill does not seem to effect as-applied challenges to state activities. The pledge, while defined in statute is of no real effect unless it is incorporated into another statute, or someone is somehow criminally charged (but I can’t see how).
Mr. Scheidegger, I am not sure that the Supreme Court “as presently” constituted will “get it wrong.” Since we agree that it is beyond dispute and obvious that making kids pledge allegiance to some flag under god is unconstitutional. However, the Justices may listen read the briefs and decide the case on the merits, and nobody wants that, now do they. When justices do that there is absolutely no predictability, and you and I will not be assured of getting our way. I appreciate all the work you are doing in the cause of getting it “right.”
Joe, There is nothing wrong with pandering to anti-court and anti-atheist biases in the country. People like it. Everyone does it.
Comment by S. COTUS — July 20, 2006 @ 10:34 am
The answer to your first question, S.COTUS, is unfortunately, yes. Congress can strip the United States Supreme Court of its appellate jurisdiction over particular cases through Congress’s Article III, Section 2 Exceptions Clause power. See Ex Parte McCardle, 74 U.S. 506 (1868).
For more information, see footnote 2 of Justice Souter’s concurrence in Felker v. Turpin, 518 U.S. 651, 667 n.2 (1996).
Congress is wrong, however, if it think that this would prevent any judicial review of the constitutionality of the Pledge of Allegiance. It could still be reviewed by state courts. All this would do is prevent a uniform nation-wide decision on the constitutionality of the Pledge.
Comment by QuiteAlarmed — July 20, 2006 @ 12:00 pm
State courts are more liberal than federal courts, as a general rule.
Think of the Massachusetts and New Jersey Supreme Courts and the New York Court of Appeals, for example.
Why would congressional conservatives want to let their decisions go unchallenged by the Supreme Court?
The U.S. Supreme Court would probably uphold the pledge.
If they wanted to take aim at liberal legal groups challenging the pledge, they could have taken a less draconian approach, such as amending the attorneys fees provision, 42 USC section 1988, to broaden the scope of attorneys fees recovery for defendant school districts (by letting them collect fees whenever they win, and the plaintiff’s suit was not substantially justified, rather than having to show the plaintiff’s suit was completely baseless or groundless, as is the standard under current law) and to narrow the scope of plaintiff’s recovery of attorneys fees (by requiring that the plaintiff not only win, but also show that the school district’s position was groundless rather than just unsuccessful, before plaintiff can obtain attorneys fees). That would increase the cost of bringing lawsuits against the pledge and deplete the coffers of left-wing legal groups.
They could also limit plaintiff’s attorneys fees to the actual market value of their time (i.e., low public interest hourly-rates), rather than using law firm customary billing rates for regular clients, as is the current practice.
Comment by Hans Bader — July 20, 2006 @ 12:12 pm
Hans, I don’t think that 1988 plays too big a role in shaping facial challenges to statutes, which are mainly brought by groups that have some pre-existing funding. They would simply raise more funds before bringing a lawsuit. These people generally work for salaries, so they don’t really have an “hourly” rate that they charge the general public. In Newdow’s case, he probably would not have been eligible for fees anyway since he was proceeding pro se. 1988, on the other hand does provide compensation for the more generic constitutional torts, usually involving physical injury by a policeman.
Although I don’t really understand how lay people refer to “liberal” and “conservative” it is probably worth nothing that in most “liberal” states kids just are not being “forced” to say the “pledge” in the first place, so there isn’t standing to challenge it, even in a state with relaxed standing requirements. Whatever the case, the 9th Circuit’s final decision in Newdow didn’t involve a challenge to the actual statute, but rather a challenge to the District’s practices, which Congress’ jurisdiction-strip doesn’t seem to reach.
Comment by S. COTUS — July 20, 2006 @ 12:23 pm
Forcing students to say the Pledge is not an issue. That was settled in the 40s. Indeed, nothing could be more contrary to what the flag stands for than compelling anyone to pledge allegiance to it. Elk Grove School District was not forcing anyone to recite the Pledge.
Hans’ suggestion for attorney fee reform is a good one for other reasons, but I don’t think it would stop Newdow et al. in this case. And there is no need to stop him. Just let the case come to its normal conclusion.
Comment by Kent Scheidegger — July 20, 2006 @ 12:43 pm
I put “forcing” in quotes because Newdow’s claim is based on the notion that when little kids are “lead” in a chant, is just as good as “forcing” them to do something. I thought that was obvious from, well, not only the Supreme Court’s decision, but both 9th Circuit’s decisions as well. It was quite clear from Newdow’s briefs, too.
Eliminating 1988 might make it easier to police dangerous streets, because municipalities would fee more free to aggressively prosecute poverty and could freely administer justice to those most in need of it, and wouldn’t have to even fear injunctive relief, as it would become somewhat more impractical.
Comment by S. COTUS — July 20, 2006 @ 12:59 pm
Congress has the constitutional authority to strip the Supreme Court of its jurisdiction in this area. Article III is clear that:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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.”
Thus, since this is a case that would not involve ambassadors, public ministers, or cases where a State is a party, Congress may exempt the court’s jurisdiction from these cases. Without federal appelate or SCOTUS jurisdiction, Establishment Clause challenges or challenges brought under similar provisions of the States’ respective constitutions would have to be heard in state court. While this may well lead to a patchwork of different standards, I don’t have a problem with Californians doing one thing while people in Mississippi do something different. And while I don’t really view this as a federalism issue, I nevertheless can’t help but to think that a movment away from the idea we need one size fits all policies for the entire country may be a good thing — for use of the pledge or for abortion rights.
Comment by JPS3L — July 20, 2006 @ 1:09 pm
Whether the Supreme Court can be completely prevented from hearing challenges to a statute on constitutional grounds is one of the big questions in constitutional law which the Supreme Court avoids answering. The issue is far from “clear” (indeed, a lot further from “clear” than any other legal issue). I think we all know about the McCardle and Yerger debate, as it was explained in Felker. (If you are not familiar with these issues, Volokh has a pretty nice outline (that I don’t necessary agree with) here: http://www.law.ucla.edu/volokh/blog_data/jurisdiction.htm )) Anyway, as a general rule, stating that a legal issue is “clear” usually means that it isn’t.
Comment by S. COTUS — July 20, 2006 @ 1:26 pm
Fair enough. Even so, Hart also recognizes that his theories would probably not survive actual judicial scrutiny. “Habeas corpus aside, I’d hesitate to say that Congress couldn’t effect an unconstitutional withdrawal of jurisdiction — that is, a withdrawal to effectuate unconstitutional purposes — if it really wanted to.” Although it is true that any legal issue will almost always have two sides to it (hence the emphasis on ‘getting to maybe’ during the first year of law school), I would think that the current court might well respect such an exception to its jurisdiction. Indeed, such a decision would jib well with Robters’ notion of judicial minimialism and with Scalia and Thomas’ views concerning the role of the Court generally. At any rate, it would provide the Court with a great opporunity to weigh in on this issue before declaring that it did not have jurisdiction to hear the case in the frist place — a’la Marbury v. Madison.
Comment by JPS3L — July 20, 2006 @ 1:57 pm
As to jurisdiction-stripping (which is quite interesting), the court has had many opportunities in the past to deal with potential strips. Hamdan being the most recent. Each time, it has found that there really wasn’t a strip. I don’t think that this practice is going to change any time soon.
I don’t think that Roberts is really a “minimalist.” If his statements to the SJC are any indication, at some point he will develop a complex jurisprudential theory, and his nuances will become the stuff of law school texts. (I doubt Alito will achieve this, but I will leave this to another day.)
As to the substance of the pledge, no matter what the case, I think that for the next 50 years we are going to get more avoidance. For my part, I think avoiding the issue is a good thing, because it allows, as a practical matter, states to decide how much Judeo-Christian indoctrination they want to foist upon kids.
On practical form of avoidance would be to simply revisit (or clarify) Lee v. Weisman.
The people who are championing the pledge don’t really think of some nebulous multi-faith god. Indeed, the Solicitor General’s argument, while well-crafted was not the position taken by the administration, and is certainly not the position taken by most religious folk in my country.
But, the strangest thing about it, is that 4 U.S.C. § 4 imposes absolutely no duties on anyone. It is virtually unenforceable. Even if it was, there are no criminal penalties for violating something that isn’t a crime. Indeed, even § 8 (whose enforcement is unconstitutional) speaks in vague terms. I probably would like to see §§ 8(i), (j) enforced (and I think this section could be constitutionally enforced since it would only be under middle-tier scrutiny).
Comment by S. COTUS — July 20, 2006 @ 2:26 pm
S. Cotus:
If I understand HR 2389 correctly, the issue is whether Congress can divest the federal courts, including the Supreme Court, of jurisdiction over claims that the Pledge of Allegiance, in some form, violates an individual’s rights under the Constitution.
As you all have pointed out, this is one issue that the Court has been very reluctant to reach throughout its history. (However, note that in Hamdan v. Rumsfeld, Scalia’s dissent, which read the DTA to divest all federal courts of jurisdiction, required him to reach — and reject — both the Suspension Clause and the Exceptions Clause/Article III arguments.)
Usually, the Court’s reluctance has arisen in cases involving divestitures of habeas jurisdiction — e.g., Yerger, St. Cyr, etc. In that context, the stakes are especially high, so one can understand the hesitation exercised by the Court. On the other hand, this statute limits the ability of litigants to bring actions, presumably seeking injunctive relief, claiming a violation of the First Amendment vis-a-vis the Pledge. However, while preventing actions that seek injunctions might be within Congress’ Exceptions Powers (although I think that proposition is not on firm ground), the statute also clearly allows a state to criminalize the failure to participate in the Pledge of Allegiance. Hence, I think the statute should be rejected as unconstitutional because it implicates the Article III/habeas cases.
To demonstrate, suppose a state were to pass a law that “every school child shall participate in saying the Pledge of Allegiance with patriotic fervor.” Failure to do so subjects a child to adjudication as a juvenile delinquent. A child says the Pledge while rolling his eyes, and, over objections under state and federal law, is adjudicated a JD. On appeal, he claims that he did participate in saying the Pledge “with patriotic fervor,” and he also claims that the state law is void for vagueness and thus violates the 14th Amendment Due Process Clause. The highest state court holds that he did not participate in the Pledge with patriotic fervor, and also holds that the state law does not violate the Due Process Clause.
Question #1: Can the Supreme Court grant certiorari to hear the case?
Question #2: If the Court denies cert, can the child bring a habeas action in federal court?
I don’t have time at the moment to write out my answers to these questions, but I think the result of my hypothetical is that an individual is prevented from bringing a colorable constitutional claim via the federal courts’ habeas jurisdiction. For that reason, HR 2389 probably would be rejected.
But who really knows?
Comment by primary_source — July 20, 2006 @ 4:18 pm
Well SCOTUS, pandering to religious minorities is American as apple pie and hating the Yankees, but it is not exactly a good thing. I’m suspect you are being a bit ironic though.
I share the sentiment, however, that “force” has various shades. For instance, Scalia supporters surely know of the case of Lee v. Weisman, in which “coercion” was given broad (but realistic) reach.
As to the “obvious” idea that actually forcing people to pledge is un-American, I put that up with the “obvious” idea that prayer in schools on the level of Engel v. Vitale (or more): it simply is not accepted across the board.
The idea that the average nine year old can easily “voluntarily” dissent when something is the official opening of school day is suspect in my eyes anyway.
Comment by Joe — July 20, 2006 @ 7:18 pm
I think that the federal courts should not be able to determine mental competency!!!!
Comment by Larry Holmes — March 1, 2008 @ 9:27 pm