RichardMorey

I decided I would look up some conservative columnists to see what they have to say about the Pledge. Here's the latest tidbit:

First, Schlafly:
<a href="http://www.townhall.com/columnists/phyllisschlafly/ps20020709.shtml" target="_blank">http://www.townhall.com/columnists/phyllisschlafly/ps20020709.shtml</a>

And Buchanan:
<a href="http://www.townhall.com/columnists/patbuchanan/pb20020701.shtml" target="_blank">http://www.townhall.com/columnists/patbuchanan/pb20020701.shtml</a>

Now, I thought, "That's strange. What Constitution were they reading that allows Congress to decide what things the Federal Courts have jurisdiction on?" So I went to my copy of the Constitution.

Constitution of the United States of America, Article III Section 2:
<a href="http://www.constitution.org/constit_.htm" target="_blank">http://www.constitution.org/constit_.htm</a>
(Italics mine)

If I'm not mistaken, the phrase "with such Exceptions, and under such Regulations as the Congress shall make." refers to the type of jurisdiction, and it does not mean that Congress can simply remove jurisdiction from the courts. That would be an egregious violation of the separation of powers.

Can anyone comment on this? Has this ever been invoked before?

Zimyatin

The Constitution only created the Supreme Court. It then gives the Congress the power to make lesser courts. Congress did this in 1789. The district courts and the circuit courts exists at the pleasure of Congress. If Congress wanted to they could abolish the district and circuit courts.

But, don't fear:

(1) Congress will not abolish the lower courts because that would cause chaos.

(2) If Congress followed the advice of these two idiots it wouldn't grant them the unconstitutional protection they seek. The district and circuit courts would dismiss for lack of jurisdiction and these cases would be in the lap of the Supreme Court. It only takes the vote of four justices to hear a case.

One last point - this is stupid! What tweedle-dee and tweedle-dumb are advocating is repugnant: Congress telling the lower courts that they can't declare certain acts of Congress unconstitutional. Where's our checks and balances?

Splat

The most pathetic thing about it is the howling they would have done if anybody had suggested such a stunt under a Democratic congress.

Are they really that short sighted and stupid, or are they just pretending?

Buffman

The most galling thing is that these two earthlings would have the ability to make such public statements without fear that they would be laughed into outer space. That is the scary aspect of their ludicrous public utterings. They have a blind faith following who will send them money to achieve their fascist/theocratic ends.

Stephen Maturin

Many times. Congressional efforts to divest the lower federal courts of jurisdiction in a specific class of cases are nothing new. The Supreme Court has described the authority of Congress over lower federal court jurisdiction as follows:

<a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=411&invol=389#4 01" target="_blank">Palmore v. United States, 411 U.S. 389, 400-01 (1973)</a>.

Members of Congress have in the past proposed bills to eliminate federal district court jurisdiction over school integration and school prayer cases. Fortunately, though, most court-stripping bills die quietly in committee (although the school prayer bill actually passed the Senate before the House killed it, if memory serves).

Corey Hammer

I'm very familiar with Phyllis Schafly's shit. I'm from her hometown in southern Illinois.

(Warning: Strong Language)

The elitist bitch is on record saying that Alton was not good enough for her. So she moved to Ladue, MO; one of the richest communities in the STL area.

Grumpy

Would it? Can you even file a lawsuit in a court that has no jurisdiction to hear a case? Would such cases always have to be filed directly to the SCOTUS, which would have original jurisdiction where Congress barred the lower courts from meddling?

And is that what Buchanan & Schlafly really want? One shot at judicial review and no more for those select cases?

Zimyatin

Well, yes. There are several examples (can't remember names) of civil procedure cases being dismissed at the district and circuit courts only to be decided by the Supreme Court. It's not uncommon for lawyers to file suit knowing that they'll lose - but that loss will give them the chance to file with a more favorable court.

So, for example:

(1) Congress passes the "We Know Better Than You" religious act stripping the district and circuit courts of 1st Amendment jurisdiction.

(2) File a complaint in district court. You lose - lack of subject matter jurisdiction.

(3) Ask for circuit court review. The district court got it wrong. The circuit points to the act, says that the district court got it right.

(4) Appeal to the Supreme Court. With the makeup of the court you should be able to get the necessary 4 votes for review. The Court will say the district and circuit courts were right. But, the Court will, sua sponte, review the constitutional issue.

Note: Even if the circuit court denies review of the district court you can still use that denial to get to the Supreme Court. May Justice Stevens live many more years.

Stephen Maturin

Actually, that wouldn't work either since the Supreme Court doesn't have original jurisdiction in such cases. The effect these court-stripping bills would be to dump Establishment Clause litigation in the lap of the state courts, where the only chance of federal review is by appeal to SCOTUS once all avenues of appeal in the state court system are exhausted.

HRG

I'm not sure about it. Usually, lack of jurisdiction in the lower court leaves the appellate court no power to review the substantive issues - unless it is prepared to declare unconstitutional the very law which withdrew jurisdiction.

Couldn't you just file the same suit in a state court (e.g. against some board of education, which is a state agency, and not less bound by the federal constitution than any other public agency in the US) ? The state court would be bound by the same tests announced by the SCOTUS which caused the decision of the 9th circuit.


Regards,
HRG.