Wednesday, July 19, 2006

But what about separation of powers? Checks and balances? Judicial independence?

Today, the House voted in favor of a bill that would bar federal courts from ruling on future contestations of the constitutional validity of the Pledge of Allegiance over the words "under God."

"We should not and cannot rewrite history to ignore our spiritual heritage," said Rep. Zach Wamp, R-Tenn. "It surrounds us. It cries out for our country to honor God."

Besides the fact that this guy is just plain wrong - the Pledge of Allegiance never included the words "under God" until they were added by the Congress in 1954, among other reasons - this issue, with the passage of this bill, is no longer about whether the Pledge should include these words or not, but the principle of behind our very Constitution and the government it created. You know, the one about their being different branches of government that have different roles to play and can check each other's power. With this action today, the House is effectively trying to erode the power of federal courts to rule on the constitutionality of the laws they pass, and thus elimiate their power to check the Congress.

Davison Douglas, a professor at the William and Mary School of Law, said constitutional scholars are divided over whether such congressional restrictions on judicial review would pass constitutional muster.

He noted that "past efforts to bar all federal court review of hot-button social issues have consistently failed. Hence, if this bill is enacted, it would be a highly significant landmark in terms of congressional efforts to control the actions of federal courts."

Obviously this would set a dangerous precendent. What if Congress said federal courts, including the Supreme Court, couldn't rule on cases that involve Guantanamo? Or the NSA spying program? Or... well anything. The Congress would be free to pass blatantly (or not so blatantly) unconstitutional laws, and could simply tell the courts they couldn't do anything about it. Thankfully, some Republicans can see a problem here:

Rep. Dana Rohrabacher, R-Calif., said the effort to strip courts of authority could come back to haunt his fellow conservatives if liberals gain control of Congress in the future. As an example, he said Congress could prevent the Supreme Court from ruling on a state's decision to ban guns.

I'm not how this even makes sense, when it's been firmly established the USSC can review the constitutionality of laws under judicial review (this seems like one that's ripe for being overturned!) . Conservatives claim the authority comes from the Exceptions Clause, but it's never been applied this way before to my knowledge. Perhaps Xanthipass can provide some further insight.

But the Republicans know this is all bullshit anyway. Much like their frivolous votes on constitutional amendments to ban gay marriage and flag burning earlier in the year, this is just designed to rile the conservative base (thereby increasing turnout in a year that is expected to be bad for Republicans) and make Democrats go on record in opposition, in their hopes that those in conservative districts can be toppled in an election year (but guess what guys, we're going to do this to you over the minimum wage and stem cell research!).

But I digress.


Nat-Wu said...

Yeah, it's just them yanking the Dem's chain. It would be stupid to pass such a law, and I'm sure they know it too. Unfortunately, this is all they have left since they certainly can't run on a good-news platform of Iraq and the economy!

James said...

It strikes me much like the Repubs going to the Dems and saying "Have you stopped beating your wife?". Either way they respond is bait.