Last week, Rep. Steve King (R-Iowa), usually known for his fierce opposition to immigration, announced a new legislative proposal: the “Restrain the Judges on Marriage Act.” The point is pretty straightforward: the Iowa Republican wants to stop federal courts from even considering cases related to marriage equality.
If a state has a ban on equal-marriage rights, for example, and someone wanted to challenge the ban in court, under King’s proposal, the case would have to be immediately dismissed. Federal courts, the idea goes, would have no jurisdiction, regardless of the merits of the case.
It’s a pretty radical approach to the debate, and so long as President Obama is in office, it stands no chance of becoming law. But on Friday, one of King’s colleagues responded to the stunt proposal with a stunt of his own.
On the heels of Rep. Steve King’s outrageous announcement Wednesday of his “Restrain the Judges on Marriage Act,” Rep. Jared Polis (CO-02) today proposed the “Restrain Steve King from Legislating Act.” The bill would prevent Steve King from abusing taxpayer dollars by substituting the judgments of the nation’s duly serving judicial branch of government with his own beliefs.“For too long, Steve King has overstepped his constitutionally nonexistent judicial authority,” Polis said. “Mr. King has perverted the Constitution to create rights to things such as discrimination, bullying, and disparate treatment. These efforts to enshrine these appalling values as constitutional rights were not envisioned by the voters, or by King’s colleagues who must currently try to restrain his attempts to single-handedly rewrite the nation’s founding principles on a bill-by-bill basis.
As best as I can tell, the “Restrain Steve King from Legislating Act” does not exist, at least not yet, though it’s hard not to wonder how many co-sponsors it would pick up if Polis filed it with the clerk’s office.
As for underlying point of King’s real-life bill – which now has nine House co-sponsors – some readers last week questioned the degree to which court-stripping is uncommon at the federal level. Far-right lawmakers have occasionally pushed the idea on issues such as school prayer and the Pledge of Allegiance, but cooler heads have prevailed.
But those readers who said in comments last week that court-stripping has occurred were correct. I checked in with the fine folks at the Constitutional Accountability Center the other day, who referred me to this new piece from David Gans, an accomplished constitutional scholar. Gans was clearly unimpressed with Steve King’s idea, which was also pushed last week by Sen. Ted Cruz (R-Texas).
King’s and Cruz’s bill are at war with the text of Article III of the Constitution, which provides that “[t]he judicial Power of the United States, shall be vested in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish” and that “[t]he judicial power shall extend to all Cases … arising under this Constitution.” The text of Article III vests “judicial power” in the federal courts, just as Article I and Article II vest legislative and executive power in Congress and the President, respectively. As the text makes clear, the Supreme Court is the creation of the Constitution, not Congress. The Supreme Court is the one court Congress cannot take away.These proposals, like other jurisdiction stripping proposals, rests on the so-called Exceptions Clause of Article III, which provides that “the supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as Congress shall make.” In 1868, in Ex Parte McCardle, the Supreme Court held that Congress could invoke the Exceptions Clause to take away jurisdiction over a then-pending habeas corpus case. But even in that instance, Congress had not foreclosed all avenues for judicial review by the Supreme Court. Indeed, that same year, in a factually similar habeas case, the Justices concluded that the Supreme Court had jurisdiction.
For more background, check out the rest of Gans’ piece.