Eminent Domain

From Reuters...

In a move intended to preserve a reference to God in an oath recited by millions of Americans each day, the House of Representatives voted on Wednesday to prevent U.S. courts from hearing challenges to the Pledge of Allegiance.

The bill is still stuck in the Senate, but this House vote may cause it to start moving.

The Ninth Circuit previous struck down the pledge as unconstitutional. The Supreme Court then said that petitioner Michael Newdow, lacked the ability to bring the suit (known as standing) on behalf of his daughter. In the case Elk Grove Unified School District v Newdow, the Court reasoned that since Newdow's ex-wife had sole legal custody of their daughter, he could not sue on her behalf.

This was seen by many as the Court punting the case. Four Justices (Rehnquist, O'Connor, Scalia, and Thomas) issued three concurring opinions, stating that Newdow did have standing and he should have lost the case on its merits. Justice Thomas' opinion, which is an analysis of the Establishment Clause as a federalism provision, is especially interesting. In my opinion, the other five Justices just wanted this case to go away. They saw an opening with the standing issue and took it. Now, the case is on its way back, unless the Senate acts here to restrict the courts' jurisdiction.

This may come as a shock to many, but Congress does have this power. As part of those lovely checks and balances that our federal structure has, the Founders gave us Article III, Section 2, Clause 2...

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress can't touch the original jurisdiction of the Supreme Court. That first sentence covers all of those case types. The appellate jurisdiction is under the control of Congress. They can restrict the Court on those cases. Another fun fact for those of you who slept during high school civics... the Supreme Court is the only court specifically created in the Constitution. All of the other federal courts (known as Article III courts) are created by Congress. Congress can create and abolish those courts with a vote. They cannot do that for the Supreme Court though, since it is explicitly in the Constitution. These items, along with confirmation of judges, are the checks that the legislative branch has on the judicial branch.

Congress has done this before too. The Court has had to examine jurisdiction (as altered by Congress) issues in the past in Ex Parte McCardle and Ex Parte Yerger after the Civil War. A more apt example of Congress "interfering" in an ongoing case would be the recent Hamdan case. Congress passed legislation to strip the courts from hearing cases involving Gitmo. However, the majority on the Court decided to ignore that and heard the case anyway.

If the Senate does pass this bill, what will the Court do? Will they pull a Hamdan, dance around the will of Congress, and hear the case? Or will they decline to hear the case based on what Congress has said? I don't think there is a Justice on the Court who wants to be known as "one of the majority that struck down the Pledge of Allegiance". Even if they think that it is in violation of the Establishment Clause, they don't want that as their legacy. Either they punt again (thanks to Congress), rule in favor of the government and the pledge stays, or rule in favor of Newdow and take the heat. It's going to be fun to watch.

EDIT: NRO's Greg Pollowitz spotted this great line from Minority Leader Nancy Pelosi...

There was a vote yesterday in the House to protect the "Under God" provision of the Pledge of Allegiance. The legislation passed 260-167. Nancy Pelosi voted against the bill and had this to say:

"We are making an all-out assault on the Constitution . . . which, thank God, will fail."

Thank God the courts will be able to rule on "Under God"?

God bless Nancy Pelosi.