Exceptions Clause
| July 19th, 2004The FMA was voted down. Now we move on to H.R. 3313, The Marriage Protection Act.
This bill scares me, and not just because it prevent full recognition of same sex marriage. DOMA already interferes with that. While I don’t like DOMA, it’s not flat out terrifying. In contrast, the Marriage Protection Act has the potential to wipe out the separation of powers.
How? The Marriage Protection Act, if implemented and found constitutional, would forbid the federal courts, up to and including the Supreme Court of the United States, from ruling on the constitutionality of DOMA.
Supports of the bill believe the act is permissible based on the exceptions clause in the US Constitution, which appears in clause 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; –between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Article. 3. 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.
Using my non-lawyerly reading ability, clause 2 seems to describe which cases originate in the Supreme Court, and which can only arrive there only through an appeal. In context, it might seem exception language placed clause 2 would suggest Congress can write rules permitting some cases mentioned in clause 1 to originate in the Supreme Court rather than arriving there only through appeal. If Madison had meant to Congress to be able to remove jurisdiction from the courts entirely, he would have stuck the exception language in clause 1, rather than clause 2. At least that seems like the reasonable interpretation based on plain reading.
Or course, I am not a lawyer. What I consider plain reading may be entirely wrong. Still, I think it would be bizarre to permit Congress to tack something like this at the end of every bill they pass:
If Congress could tack this onto DOMA, can’t it tack it onto everything else? And if they can do this with everything else, why wouldn’t they do it whenever the spirit moves? There go the separation of powers! Scary.
In any case, I am not the only one to suspect there is something constitutionally wrong with this bill. According to Alan Hirsch, who knows much more about these things than I, the Marriage Protection Act itself may be unconstitutional.
Constitutional questions aside, the Marriage Protection Act, sponsored by Indiana Congressman John Hostettler (Rep) passed the house judiciary committee last week. According to Immigration Equality, the house will be voting on the bill this week. GOP officials expressed confidence the bill will pass. The text of the bill is available at: thomas.loc.gov; you can read more at CBSNews.
If this bill passes, we will all read and learn more. Likely, constitutional scholars will give us their opinions. Frankly, I’d rather the bill just doesn’t pass so I don’t have to learn more about the exceptions clause. I suggest we all call our congressmen and urge them to vote against this bill.
July 19th, 2004 at 7:38 pm
In fact, I think the “bizarre” interpretation is the correct one. From The Constitution of the United States of America: Analysis and Interpretation:
This comment was written by Drew.Report this comment to the moderators
July 19th, 2004 at 7:55 pm
I also did some checking– and found a case right after McCardle. It’s US v Klein
Broadly speaking, Klein stands for the proposition that one branch may not impair the powers of another. Put another way, Klein recognizes and supports the fundamental value of separation of powers defined by the Constitution. Specifically, Klein means that Congress may not direct the outcome of a case by prescribing the rule of decision, nor may Congress impair the power and effect of a Presidential pardon. Read more broadly, Klein suggests, but does not state, that Congress may not use the Exceptions Clause to cripple the Court’s ability to be the final arbiter of what the Constitution means.
Wrigint at slate, Rod Smolia’s interpretation of Klein and MCCardle taken toghether is this:
The McCardle decision, coupled with the text of the exceptions clause, makes the argument for the legitimacy of jurisdiction-stripping seem strong. But it’s not so simple. Because while Congress had cut off the specific statutory route that McCardle had used, it had not eliminated all recourse that McCardle or others like him had to the Supreme Court. Alternative routes to the court remained open, and indeed, the same year McCardle was decided, the Supreme Court entertained a habeas petition from a person named Yeager who also challenged his confinement and the legality of Reconstruction legislation. Yeager used a different federal statute than McCardle to support his appeal, and the court accepted it. McCardle thus tells us that Congress may eliminate a specific statutory path to Supreme Court review, but it does not tell us whether Congress could zero-out an entire class of cases. In other words, Congress may apply the squeeze, but perhaps not the full freeze.
So, I guess his impression is that McCardle took the wrong route to the Supreme Court.
The Marriage Protection Act would be the “full freeze”, and Smolla says Klein and McCardle suggests– jointly– that Congress can somehow regulate , but not entirely block access to the court. (Although, obviously, the suggests but does not state, makes things ambiguous.)
I’ll admit, I have no idea if Smolla is correct. It may very well be that SCOTUS would find the bizarre ruling correct. But, Smola would line up with my “plain reading”. (And strangely enough, I found Smola after I wrote the article.)
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July 19th, 2004 at 8:54 pm
I wanna be a Congressman so I can pass a bill declaring myself omnipotent God of everything.
I refuse to honor this with the use of actual brain cells.
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July 19th, 2004 at 8:58 pm
In terms of the narrow theoretical question of whether Congress can shrink the Supreme Court’s jurisdiction, the answer is clearly “yes.”
For example, the Constitution gives jurisdiction is all suits “between Citizens of different States.” Congress has put an “amount in controversy” limit, so that in order to have diversity of citizenship jurisdiction, the amount in controversy must be at least $75,000. No one has ever suggested that this rule is unconstitutional.
As to whether THIS limitation is unconstitutional, I have no idea. Butnothing in the MPA would prevent a STATE court from finding the law unconstitutional, so maybe there would be an alternative route of appeal . . .
This comment was written by Richard Bellamy.Report this comment to the moderators
July 19th, 2004 at 9:06 pm
>> Butnothing in the MPA would prevent a STATE court from finding the law unconstitutional, so maybe there would be an alternative route of appeal . . .
The issue of States ruling on the act u is discussed by Hirsch. He mentions this: But if the Marriage Protection Act passes, DOMA’s fate would rest with state judges, many of whom face election and are prone to public pressure. Worse still, courts in some states would find DOMA unconstitutional while courts in other states would hold otherwise.
That would certainly be confusing– although, I’m not sure we have any constitutional guarantee that things won’t be confusing.
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July 20th, 2004 at 7:42 am
It’s unfortunate but fairly widely accepted that Congress can limit the jurisdiction of the lower federal courts by issue. The theory is a “greater includes the lesser” notion: because Congress didn’t have to create lower federal courts at all under the Constitution, it presumptively has the power to create courts that don’t get to rule on everything. There are a few WWII-era cases dealing with this issue; Congress had created a price control board and had confined jurisdiction of any challenges to the statute to an Emergency Court of Appeals, and the Supreme Court upheld the ruling in a case called Yakus.
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July 23rd, 2004 at 8:54 am
Purpose of evasion
This comment was written by Waveflux.This is the affirmation taken by each member of the U.S. House of Representatives, mandated by Article VI of the Constitution: Oath of Office I do solemnly swear that I will support and defend the Constitution of the United States…
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