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Reversing Citizens United: stripping the Roberts 5 of power over elections

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1) over cases relating to 1st Amendment restrictions on voluntary school prayer, a bill which passed in the Senate, but not the House.( Prayer in Public Schools and Buildings Federal Court Jurisdiction: Hearings on S. 450 Before the H. Comm. on the Judiciary, Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, 96th Cong. (1980)); and

2) over any 1st Amendment challenge to mandating students' involuntary recitation of the Pledge of Allegiance by the Pledge Protection Act, which passed in the House as H.R. 2028, 108th Cong., 150 Cong. Rec. H7478, but not the Senate.

Neither of these authoritarian efforts to impose thought control on school children had anything to do with political questions, intrusion on express legislative powers, installing plutocracy, or the survival of democracy. They both involved judicial recognition of individual liberty to be free of state religion or state mandated patriotic expression. Hence they were far less legitimate targets for the Exceptions Clause than would be the "money is speech" legal gimmick used by the Court for intruding on Congress' own assigned powers over election integrity.

But by enacting these bills each house of Congress has clearly established its interpretation of the Exceptions Clause as granting them very broad power to make exceptions to the First Amendment jurisdiction of the Supreme Court. They simply lacked -- for good reason - the political support of the People to get these particular authoritarian applications of their undisputed power enacted.

The next question is, What has the Supreme Court itself said about Congress' Art III, Sec 2 power? The Supreme Court has never interpreted the Exceptions Clause to deny Congress the power to make exceptions to its appellate jurisdiction. For example, Congress originally left out of the Court's jurisdiction all criminal cases. In United States v. More , 7 U.S. (3 Ranch) 159 (1805) the Court held that Congress's failure to provide for appellate jurisdiction over federal criminal matters in the 1789 Judiciary Act barred such jurisdiction.

In a later case the Court made a sweeping statement supportive of Prof. Black's view: "By the constitution of the United States the Supreme Court  can exercise no appellate power unless it is conferred by act of Congress. ''  Barry v. Mercein 46 U.S. (5 How.) 103, 120-21  (1847). In In The Francis Wright,   105 U.S. 381, 385  -386 (1882), the Court elaborated on the source of appellate power: "What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control.... Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not.''

After the Civil War, when it feared that the Court might hold military reconstruction of the South unconstitutional in a pending case, Congress quickly repealed the statute on which the Court's jurisdiction depended. After hearing argument on the constitutionality of the repealing act, the Court in Ex parte McCardle , 74 U.S. (7 Wall.) 506 (1869) unanimously upheld the jurisdiction-stripping law and dismissed the appeal for lack of jurisdiction, even though the writ of habeas corpus, jurisdiction over which is not subject to Art III stripping, was involved in the case.

More recently the Court rejected an attempt by Congress to strip the judiciary's authority over the inherently judicial power to issue a writ of habeas corpus. This power arises under the federal courts' writs jurisdiction, not the Supreme Court's appellate jurisdiction. Hence the question arose not under the Exceptions Clause (Art. III, Sec 2, Clause 2) but under jurisprudence involving the Constitution's Suspension Clause (Article I, Sec.  9, clause 2). The latter provision protects an individual right of habeas corpus secured by the Constitution subject to a single narrow exception that did not apply. But in Boumediene v. Bush, 553 U. S. 723 (2008), Scalia, J., wrote the dissenting opinion for the Roberts Court extremist bloc of four. These New Four Horsemen objected to the Court's invalidation of a statute that curtailed the federal courts' habeas jurisdiction in violation of the Suspension Clause. The four described the majority decision as the result of an "inflated notion of judicial supremacy," a critique that does not seem to trouble the extremist bloc when they repeatedly trespass on Congress' exclusive authority to regulate and judge elections.

Justice Scalia goes on to proclaim:"Our power to say what the law is is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction." Thus the most activist judges in interfering in elections are also the most extreme in upholding Congress' absolute authority to strip the Court' jurisdiction -- when that is needed to get the authoritarian result they want. Plutocrats see civil liberties for any but themselves as a nuisance for their hold on power. These four judges concede this judicial jurisdiction-stripping power in a case that went well beyond stripping of jurisdiction over political questions under the Exceptions Clause in order to re-balance the separation of legislative from judicial power. Habeas corpus is arguably the irreducible judicial power.

To summarize,

  1. The Exceptions Clause, Art, III, Sec 2, Cl. 2, expressly states that Congress has the broad power to make exceptions to the Supreme Court's jurisdiction, other than in a few areas that are not relevant. There is no express statement elsewhere in the Constitution, as amended, that qualifies this congressional power over appeals to the Court. Any views to the contrary by unelected law professors are more political than legal. But even those views do not argue that Congress could not exercise its power for the purpose of restoring the political question doctrine. The Supreme Court itself upheld the political question doctrine as an essential constitutional restraint on its jurisdiction defining the appropriate separation of legislative from judicial power during most of its history, since the legendary Marbury case and consistently down to 1976.

  2. Congress has acted on their consistent interpretation that they can strip the appellate jurisdiction from the Court on First Amendment issues, as well as many other issues that are far less suitable targets for jurisdiction-stripping under the Exceptions Clause than would be political questions and maintenance of the well-established boundaries for the separation of powers concerning elections.

  3. The Supreme Court has ruled that Congress can strip its jurisdiction in comparably important areas. It has said it has no power to hear appeals that Congress has not itself given by statute. It has never ruled that Congress cannot strip jurisdiction under Article III by simply amending those statutes. To convince the Roberts 5 not to start now, the law stripping the Court's jurisdiction itself will need to contain very strong incentives, clearly threatening their impeachment and even the prosecution of justices who defy the law and exceed the scope of their constitutional authority by continuing to encroach upon Congress' legislative powers.

9. Enforcing the Exceptions Clause Against Judicial Supremacy

    An early Jeffersonian, Senator Giles, of Virginia, said in 1804 of Marbury v. Madison

    "if the judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconstitutional, it was the undoubted right of the House of Representatives to impeach them, and of the Senate to remove them, for giving such opinions.... And a removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better."

    Hamilton supported this same view in Federalist 81.

    "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by [impeachment]."

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A creative thinker on matters of public policy and art, and a principal researcher. Current focus of work is on the strategies democracies can use to protect against overthrow by corruption, with immediate attention to the mess being made by (more...)
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