Under the American system of government, elected legislators are responsible for writing laws. If those statutes are legally controversial, they’re challenged in the courts and evaluated by judges. It’s Civics 101.
But once in a while, some far-right lawmakers decide they’re not entirely comfortable with separation of powers and the idea of judicial review. Yesterday, Rep. Steve King (R-Iowa), usually known for his fierce opposition to immigration, issued a press release announcing a new proposal related to marriage equality.
Congressman Steve King released the following statement after introducing his bill “Restrain the Judges on Marriage Act of 2015.” This bill strips federal courts of jurisdiction to hear cases related to marriage. The effect of the bill would prevent federal courts from hearing marriage cases, leaving the issue to the States where it properly belongs. […]“My bill strips Article III courts of jurisdiction, and the Supreme Court of appellate jurisdiction, ‘to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any type of marriage.’”
The “Restrain the Judges on Marriage Act” has already picked up seven House co-sponsors – all of them Republican – including some familiar names like Louie Gohmert (R-Texas), Ted Yoho (R-Fla.), and Jeff Duncan (R-S.C.).
And that’s a shame because, even by 2015 standards, this idea is just bonkers.
This came up a couple of weeks ago when Sen. Ted Cruz (R-Texas), soon after launching his presidential campaign, told an Iowa audience “he would prod Congress to strip federal courts of jurisdiction over the [marriage] issue, a rarely invoked legislative tool.”
As we talked about at the time, it’s “rarely invoked” because the approach – known as “court-stripping” or “jurisdiction-stripping” – is usually too bizarre for most policymakers to pursue.
The idea isn’t complicated: under this scheme, Congress would pass a federal law effectively telling the courts, “We’ve identified a part of the law that judges are no longer allowed to consider.”
To reiterate what we discussed two weeks ago, let’s say you live in a state with a law that discriminates against same-sex couples. You decide to challenge the constitutionality of the law, get an attorney, and go to court. Under Steve King’s bill, the judge would have no choice but to ignore the case – the courts would have no legal authority to even review lawsuits related to marriage equality because congressional Republicans say so.
Whatever one thinks of marriage equality, this certainly isn’t “constitutional conservatism.” Indeed, it’s effectively the congressional version of “legislating from the bench” – King and his cohorts want to adjudicate from the legislature.*
To be sure, this isn’t entirely new. Back in the 1980s, Sen. Jesse Helms (R-N.C.) repeatedly tried to prevent federal courts from hearing cases related to school prayer. About a decade ago, Sam Brownback and Todd Akin (remember him?) worked on similar measures related to the Pledge of Allegiance. Now, a handful of House Republicans are dipping their feet in the same radical waters.
Looking ahead, if the GOP-led House tried to pursue this idea in 2015, there’s simply no way it’d overcome a Democratic filibuster in the Senate or get President Obama’s signature.
But the fact that several members of Congress are pushing such a proposal – all while Ted Cruz expresses interest in the same idea – speaks to an ugly strain of radicalism among Republican lawmakers.
Correction: I’d originally said Congress “never” passes court-stripping schemes, which isn’t correct. It’s rare, but it has happened. I’ve edited the above text accordingly.