News Intelligence Analysis
From The Hill
Courts may be stripped on
pledge
By Alexander Bolton
[Yurica Report editor's note: We have inserted the links in this article. We recommend that our readers review Professor Vic Amar's Constitutional analysis of HR 3313 to comprehend the Alice in Wonderland logic of the House and Senate Republicans. ]
With six weeks left before the election, House Republican leaders are moving forward with plans to pass legislation that would strip courts of their jurisdiction to review cases involving the Pledge of Allegiance.
The House Judiciary Committee yesterday voted along party lines to eradicate the power of federal courts — including the Supreme Court — to alter the Pledge of Allegiance. The Republican leadership has promised to bring the highly-charged legislation up for a vote on the House floor and is expected to do so next week.
Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, has told the bill’s sponsor, Rep. Todd Akin (R-Mo.), that he approves of the bill and would push a Senate version of it if the House acted.
Yesterday’s action in the House is part of a piecemeal solution that Republican congressional leaders have adopted to solve what social conservatives have long viewed as the problem of activist judges, particularly on the federal bench.
If vulnerable Democratic incumbents reject Akin’s bill, Republicans would likely use the votes as political ammunition this fall. A survey conducted this summer by the First Amendment Center and American Journalism Review magazine found that 70 percent of Americans said that the words “one nation, under God” in the pledge did not violate the First Amendment.
Conservatives claim that the support is much higher and that close to 90 percent of Americans support the pledge as is.
Controversy over the pledge exploded on the national political scene two years ago when the U.S. Court of Appeals for the 9th Circuit ruled that the words “under God,” added by federal statute in 1954, made the pledge unconstitutional.
The GOP strategy on combating activist judges had been held up by Rep. James Sensenbrenner (R-Wis.), chairman of the House Judiciary Committee. He is the second House chairman recently to obstruct GOP efforts to appeal to social conservatives. Rep. Bill Thomas (R-Calif.), chairman of the Ways and Means Committee, has balked at legislation that would exempt religious leaders who engage in political activities from tax penalties.
Last month, the House passed H.R. 3313, which denied federal courts jurisdiction to decide any question related to the provision of the Defense of Marriage Act that exempts states from recognizing same-sex marriages forged under other states’ laws.
Earlier this week, the House passed tort-reform legislation that limited the types of civil cases that could be heard in state-level courts, legislation that Democrats say amounts to a limitation of those courts’ jurisdiction.
The recent action fulfills a pledge that House Majority Leader Tom DeLay (R-Texas) described to reporters last month that the Republicans would use the tactic of “jurisdiction stripping” to achieve social policy goals.
However, the Republican leadership and other proponents of jurisdiction stripping had run into a formidable obstacle in the form of Sensenbrenner.
Until yesterday, Sensenbrenner had steadfastly opposed efforts to strip power from the courts, even to further the GOP political and social policy agendas.
“He’s had a reluctance to use Article III, Section II,” said Akin, referring to an often-overlooked section of the Constitution that Republicans plan to use to rein in the courts. “I think he sees it as a strong tool and something that could be misused, and he has a fundamental respect for the courts.”
Akin said he first approached Sensenbrenner about passing his bill through the Judiciary Committee three years ago. At first Sensenbrenner declined to act, citing his belief that the legislation would die in the Senate. And even after Hatch told Akin that he was eager to move companion legislation, Sensenbrenner remained leery of moving forward, Akin said in an interview yesterday.
However, with Election Day drawing near and pressure from House Republican leaders and rank-and-file members mounting, Sensenbrenner suddenly altered his position this week.
“I do know a lot of internal pressure was put on, and I know there was a lot of discontent,” said David Barton, the president of WallBuilders, one of several socially conservative groups that supported the legislation. “It [is] a very popular act.”
“The Speaker had been involved in the discussions about wanting to move it forward,” Barton added.
He said Republicans view Akin’s legislation, which has 225 co-sponsors, as a way to send “a real clear signal to the judiciary [with] a highly popular act.”
Other conservative groups that have endorsed the Pledge of Allegiance bill include Family Research Council, the American Center for Law and Justice, Eagle Forum, the Religious Freedom Coalition and the Southern Baptist Coalition.
But Jeff Lungren, Sensenbrenner’s spokesman, disputed that his boss made an about face on the merits of Akin’s bill.
“I would say that’s inaccurate,” said Lungren, citing a Pledge of Allegiance case that the Supreme Court decided recently. “The chairman had concerns about the bill while the Supreme Court was still considering the Newdow case. But [the court] ruled on that, and we’re moving forward.”
Lungren said Sensenbrenner is a “strong supporter” of Akin’s legislation. The bill passed by Judiciary yesterday was a substitute amendment Sensenbrenner offered to Akin’s bill that expanded the original bill’s scope to include the Supreme Court.
Sensenbrenner said the amended legislation would “place final authority over a state’s pledge policy in the hands of the states themselves.”
“The amendment in the nature of a substitute is identical to H.R. 3313, the Marriage Protection Act, which the House passed just prior to the August recess, except that it addresses the pledge rather than the Defense of Marriage Act,” Sensenbrenner said at the bill’s markup yesterday.
Conservative supporters who have pushed for jurisdiction-stripping legislation pertaining to the pledge say that Senate Republicans are more eager to take up a companion bill to Akin’s legislation than more controversial legislation related to same-sex marriage.
“The majority leader’s folks were eager about the bill and getting it [passed in the Senate],” said Barton, who had discussed the matter with aides to Senate Republican Leader Bill Frist (Tenn.)
Barton said the jurisdiction-stripping bill related to same-sex marriages was “seen as a second [most] favorable bill” in the Senate, where the “preference was for the Akin.”
Senate Republicans, who tend to be more centrist than their
House counterparts, are leery about taking action on same-sex
marriage, which is more controversial than keeping the reference
to God in the Pledge of Allegiance.
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