Steve Sachs Duke


Sunday, July 13, 2003


Protecting the Pledge: In bemoaning the GOP's recent shift to the left (?), the editors of the National Review have identified a promising new item for the Congressional calendar:

On gay marriage, a constitutional amendment appears to be necessary to forestall the mischief of state and federal courts. But a mere statute can make the point that Congress controls the federal judiciary's purview. Congressman Todd Akin's bill to strip the federal judiciary of jurisdiction over the Pledge of Allegiance has the votes to pass the House, and has a powerful Senate sponsor in Judiciary Committee chairman Orrin Hatch. It should be high on the Republican agenda.

Indeed, the "Pledge Protection Act" (H.R. 2028) does precisely that: it removes jurisdiction from any federal court other than the Supreme Court "to hear or determine any claim that the recitation of the Pledge of Allegiance, as set forth in section 4 of title 4, violates the first article of amendment to the Constitution of the United States."

My initial reaction was, "can Congress do that?" Without commenting on the merits of the Ninth Circuit's Pledge of Allegiance decision (PDF), I wonder--is there any precedent for stripping the federal courts of jurisdiction solely because you don't like their rulings?

At first glance, the answer appears to be "yes": under Article III of the U.S. Constitution, the lower courts must be created by act of Congress, and Congress has broad power to set the limits of their jurisdiction. According to the second clause of Art. III, Sec. 2,

"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 ... , 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, if Congress wants to make a new exception and route new cases to the Supreme Court, it can. The McCain-Feingold bill, for instance, had special provisions attached (in sec. 403) giving it expedited review before the Supreme Court, in order to finish the court battles before the next election. And other legal issues (bankruptcies, patents, etc.) are routinely heard in specialized courts.

But the change made by Akin's bill doesn't seem to bear any relation to the fitness of one court to hear the case as opposed to another; instead, it simply seeks to invalidate a lower-court ruling and make it more difficult for certain claims to succeed. No legitimate state interest is identified beyond overturning what is said to be a bad decision by the Ninth Circuit. And although the bill hasn't been discussed on the floor yet, the legislative history here seems to be pretty clear. Consider Akin's remarks when the bill was introduced last July:

The ruling by the Ninth District Court of Appeals that the Pledge of Allegiance is an unconstitutional endorsement of religion sent shock waves throughout the country. The suggestion that listening to the pledge causes harm to any student appalled a vast majority of Americans. In response to the absurd judicial fiat, members of Congress ceremoniously gathered on the steps of the Capitol to recite the pledge and to encourage children, teachers and all Americans to continue the important tradition....

While Congress expressed its outrage, Congressman Akin introduced the Pledge Protection Act of 2002. The bill, a simple and effective remedy, will prevent lower federal courts from ruling on the constitutionality of the Pledge of Allegiance...

"Congress has the ability to rein in a renegade judiciary and this egregious decision suggests that we use it now," said Akin. "The decision that the Pledge of Allegiance is unconstitutional reflects a misunderstanding of our Constitution. Belief in a Creator is central to the ideas upon which our nation was founded. To suggest that listening to the Pledge of Allegiance may harm any child is absurd. To block schools from allowing the pledge ads arrogance to the absurdity."

"This bill will do more than merely resolve the controversy over that pledge," stated Akin. "It will address a dangerous trend: a judiciary that too often confuses the freedom for religion with freedom from religion."

Or the text of a press release last June:

Washington, D.C. - A bill introduced by Congressman Todd Akin (R-MO) which would guarantee the right of children to say the phrase "under God" when they recite the Pledge of Allegiance has garnered the support of 218 cosponsors, including Speaker of the U.S. House J. Dennis Hastert. Congressman Todd Akin's (R-MO) "Pledge Protection Act" H.R. 2028 affirms the constitutionality of the Pledge of Allegiance by restricting the jurisdiction of lower federal courts from ruling on it...

Akin introduced his bill last month in light of a ruling by the Ninth District Court of Appeals in San Francisco that prohibits children in California from including the phrase "under God" when they recite the Pledge of Allegiance.

"Preventing children from saying 'under God' is an egregious breech of religious liberty and freedom of speech," stated Akin. "I am certain that support for my bill will continue to grow and that soon Congress will take real action on this important matter."

At the moment, it's not clear what the Pledge Protection Act would accomplish if passed; as far as I'm aware, the Supreme Court is currently deciding whether to hear the case. But I wonder whether, if the Act were tested in court, it might be found unconstitutional for reasons similar to those cited in Legal Services Corporation (LSC) v. Velazquez (2001). LSC overturned a law preventing the Legal Services Corporation from representing indigent clients who tried to challenge the welfare laws. The Court found that although Congress generally has power over funding, the restriction had placed undue burdens on the private speech and litigation of welfare recipients:

Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise. Here, notwithstanding Congress’ purpose to confine and limit its program, the restriction operates to insulate current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns. In no lawsuit funded by the Government can the LSC attorney, speaking on behalf of a private client, challenge existing welfare laws. As a result, arguments by indigent clients that a welfare statute is unlawful or unconstitutional cannot be expressed in this Government-funded program for petitioning the courts, even though the program was created for litigation involving welfare benefits, and even though the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue.

There's a clear analogy to be made between this case and a challenge to Akin's bill; in the latter case, arguments that the Pledge is unconstitutional cannot be heard in the lower courts, even though "the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue."

Yet the two cases might also be distinguished. While the indigent plaintiffs in LSC were entirely without legal recourse--they were welfare recipients who couldn't afford their own lawyers--Akin's bill doesn't deny access to anyone; it only requires that cases go directly to the Supreme Court, where they might end up anyway on appeal. At most, it adds a minor burden to the process, in that the plaintiff has to file directly with the Supreme Court in Washington.

However, the same could be said of the law in LSC; it doesn't entirely deny access to the courts, since there's no individual right to Legal Services money. The indigent defendants challenging welfare benefits are no worse off than they would have been if the Legal Services Corporation didn't exist. Given that we have a Legal Services Corporation, though, they have a rightful claim on its assistance, just as the Pledge plaintiffs might have a claim on access to the lower courts. If the Supreme Court retained the power to deny cert, the Pledge Protection Act might very well represent a denial of access. And minor burdens can certainly add up to a constitutional injury; what if all cases challenging welfare benefits had to be heard in a special "Welfare Court" in Point Barrow, Alaska?

A challenge to Akin's bill might also rely on the Fourteenth Amendment guarantee of equal protection. If Congress chose to restrict lower-court jurisdiction to cases brought by white plaintiffs, for instance, that would obviously be unconstitutional. The same would probably be true if Congress chose, just for funzies, to restrict access to plaintiffs whose names begin with 'Z'--in the absence of any legitimate state interest, it would probably fail a simple 'rational basis' test. Of course, one might think that the Pledge Protection Act fundamentally addresses a claim, not a class--we don't talk about the classes of "bankrupt companies" or "patent holders" as groups requiring special protection. But since the Pledge case deals with a First Amendment issue, it may be possible to view plaintiffs as part of a class of "non-monotheists," or "those whose religious beliefs cause them to object to the 'Under God' clause," which might entitle them to a higher degree of scrutiny.

Another interesting question is whether, if a case were brought challenging the Pledge Protection Act's limitation of lower-court jurisdiction, the lower courts would have jurisdiction to hear that claim. Can a bill limiting jurisdiction preclude its own lower-court review? And just imagine a bill precluding lower-court review of all bills that do not preclude lower-court review of themselves...

(Rep. Akin, by the way, hails from my home state of Missouri; his 2nd District includes a good part of St. Louis County, although due to gerrymandering I live in Dick Gephardt's 3rd District instead. Akin has been the chief sponsor of four bills during this session of Congress, of which the Pledge Protection Act is one; the other three are H.Res. 153, calling for a day of fasting and prayer for the people of the U.S. and the armed forces in Iraq; H.R. 1772, making various reforms to the Office of Advocacy of the Small Business Administration, and H.R. 2444, requiring federally funded clinics to provide written notices to parents before distributing any form of birth control to their children.)

UPDATE: More information on this issue from the American Judicature Society can be found here.




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