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Court-stripping

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Court-stripping is "an effort to take jurisdiction or discretion away from a court or a particular judge, often to deny a particular group access to the courts. Politicians increasingly use court-stripping to reverse decisions, punish judges, or even avoid future rulings they may not like. Sometimes they seek to eliminate jurisdiction altogether. In other instances, they shuffle lawsuits between state and federal courts to achieve political ends." [1]

"Federal courts, which have been essential in expanding and preserving individual rights, are being stripped of their power to review the actions of federal law enforcement agencies, state courts, and state prisons. Court stripping, regularly decried by civil libertarians, represents a wholesale assault on liberty and due process, not to mention the constitutional system of checks and balances: if courts lose jurisdiction to hear cases involving constitutional violations, they lose the power to police Congress and enforce the Bill of Rights." [2]

About

"There are at least three different types of 'court-stripping' proposals: 1) limiting the jurisdiction of the inferior federal courts, 2) limiting the jurisdiction of all federal courts, and 3) limiting the jurisdiction of both state and federal courts together.

"While the Congress has broad authority under Article III of the Constitution to regulate the jurisdiction, procedures and remedies available in state and federal courts, this power is generally not used as a means to affect substantive law. Consequently, the federal courts have only rarely faced the question of what happens when the Congress acts under Article III to limit substantive litigation, and the Supreme Court has not squarely faced a modern law limiting jurisdiction to affect or influence litigation of constitutional questions."

"Congress’s authority to limit the jurisdiction of inferior federal courts appears relatively broad, so that laws limiting the jurisdiction of the lower federal courts would appear to raise fewer constitutional issues. Significant constitutional questions arise, however, with regard to whether Congress could eliminate both inferior federal court and Supreme Court review of constitutional matters. Further, elimination of review of constitutional issues by any court – state or federal court – seems the least likely to survive constitutional scrutiny. Various commentators, however, have suggested that limiting jurisdiction for any court for a particular class of cases raises questions regarding both the separation of powers doctrine and the Equal Protection Clause."

Source: Kenneth R. Thomas, "Limiting Court Jurisdiction Over Federal Constitutional Issues: 'Court-Stripping'," CRS Report for Congress, December 11, 2003. [3]

The Courts and "Take No Prisoners" DeLay

  • "Proponents of court-stripping frequently seek to whip up populist outrage against the courts. House Majority Leader Tom DeLay says that 'judges need to be intimidated' and that Congress should 'take no prisoners' in dealing with the courts." [4]
  • DeLay said, September 23, 2003, that the House's passage "of legislation protecting the language of the Pledge of Allegiance from runaway federal judges is a victory for families trying to teach their children respect for the role of faith in American life.
"'The words under God are as much a part of the Pledge of Allegiance as the flag itself,' DeLay said. 'Many federal judges have made no secret of their hostility to traditional values and religion in the public square, and the Pledge Protection Act will make sure those judges can't impose their personal prejudices on the rest of us." [5]

Examples of "court-stripping" Legislation

Bert Brandenberg, Executive Director, Justice at Stake, says "Recent years have seen an explosion in Congressional efforts to undermine the role of the courts." [6]

Proposed

  • The "Amendment will accomplish three specific objectives: 1.) It will define marriage in the United States as a legal union of one man and one woman; 2.) It will expressly prohibit the judicial power of the United States or of any state from being used to redefine marriage as anything other than a union between one man and one woman; and 3.) It will resolve questions relating to the constitutionality of the Defense of Marriage Act by incorporating language which would prohibit the courts from imposing the policy of one state on other states." [8]
  • According to Lungren, "It is increasingly apparent that marriage itself has become vulnerable to the design of judges who have seen fit to take upon themselves the authority to engage in social engineering aimed at the redefinition of this foundational societal institution ... I believe that the Defense of Marriage Amendment will erect a wall of separation between federal and state courts and the institution of marriage." [9]
  • " ... the Defense of Marriage Amendment of 2005 would actually write court-stripping into the Constitution." This is a return of the "Marriage Protection Act," which failed to pass in 2004. [10]
  • The Act, "a sweeping piece of immigration reform - would bar courts from reviewing the Secretary of Homeland Security’s unilateral waiver of any law that may interfere with the building of border fences, and deny many victims of overseas persecution a day in an American court to plead for asylum." [12]

Passed

  • "The S.5 Class Action Fairness Act of 2005 was introduced January 25, 2005, in the Senate by Congressman Grassly, and passed in the Senate February 10 and in the House February 17, 2005, and was signed into law February 17, 2005, by President Bush.
  • The Act "stripped state courts of their historic right to settle class action suits, and moved the suits into federal courts." [13]
  • The Feeney Amendment (Title IV of S. 151, Public law 108-21) was signed into law on April 30, 2003.
  • "The 2003 'Feeney Amendment' sharply limited the ability of federal judges to issue sentences below federal guidelines in many criminal cases. The U.S. Supreme Court effectively nullified this provision with its decision in January 2005 in U.S. v. Booker and U.S. v. Fanfan." [14]
  • "The USA Patriot Act of 2001 reduced judicial discretion to review law enforcement efforts to detain suspects, monitor private Internet communications, obtain certain personal records and share wiretaps with intelligence agencies." [15]

Still in Committee

Failed

  • "The Pledge Protection Act adopted by the U.S. House in 2004 would have outlawed the ability of courts to hear challenges to the Pledge of Allegiance." [22]
  • The bill "bars all federal courts, including the Supreme Court, from reviewing cases involving the Pledge of Allegiance. If enacted, the measure would effectively close federal court house doors to religious minorities, parents, schoolchildren and others who seek nothing more than to have their religious and free speech claims heard before the courts most uniquely suited to entertain such claims." [23]
  • Rep. Akin, the bill's original sponsor, pledged in January 2005 to refile the legislation. [24]
  • It was the third time it was introduced and second time that it passed the House. Each year it gets more votes than the previous one. [25]
  • Constitution Restoration Act of 2004, "To limit the jurisdiction of Federal courts in certain cases and promote federalism, was introduced February 11, 2004, in the House by Rep. Robert B. Aderholt (R-Haleyville) (H.R. 3799) jointly with Sen. Richard Shelby (R-AL) (S.2082), who were joined "with former Chief Justice Roy S. Moore in introducing the Constitution Restoration Act 2004 to restrict the appellate jurisdiction of the United States Supreme Court and all lower federal courts to that jurisdiction permitted them by the Constitution of the United States." [26]
  • The last bill action was September 13, 2004, when a hearing was held by the Subcommittee on Courts, the Internet, and Intellectual Property. [27]
  • The Act "would have denied federal courts the power to hear suits involving the government’s promotion of religion by removing court jurisdiction over challenges of a governmental official’s 'acknowledgment of God as the sovereign source of law, liberty, or government.' ... (For good measure, any judge caught exceeding his or her jurisdiction could be impeached.)" [28][29]

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