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.
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.