More on HR 3313
| July 26th, 2004As many read on Friday, (while I was nursing a really bad cold), Congress passed HR3313. This opinion from Oxblog:
H.R. 3313 IS NOT CONSTITUTIONAL. H.R. 3313 (link in PDF format) (news article here) passed the House on Thursday. It’s title is the “Marriage Protection Act of 2004,” and it reads, in relevant part,
For more, visit Oxblog.
I hope this law is unconstitutional. The idea that Congress can pass a law preventing the courts from ruling the constitutionality of a law is scary. I don’t care what the law is about. (Well, unless maybe the appoint me supreme monarch of the US!)
July 26th, 2004 at 3:10 pm
yeah, it has to be unconstitutional. Its one of the first, if not the first time that congress has passed such legislation. It is scary.
As I said before, its just one more proof that anti-SSM opponents (at least those who support FMA, anti-D.C. choice and this piece of absurd legislation) are not particularly democratic (little ‘d’) as they profess to be.
Can you imagine if it passes constitutional muster (and the senate)? (hmm.. plausible if unlikely.. but Bush wins election, justices retire, Bush appointees make it in time to rule on the law…)? Could congress then just say this law and that law can not be reviewed…
it’d basically become a ‘legislative’ dictatorship (if there is such a thing) and the constitution would start to become meaningless. These Republicans really seem not to care about the constitution as much as they hate the thought of gays pursuing equality and happiness.
This comment was written by Trey.Report this comment to the moderators
July 26th, 2004 at 4:54 pm
“it’d basically become a ‘legislative’ dictatorship”
You mean as opposed to the judicial oligarchy we have now? At least a “legislative dictatorship” would be democratically elected so that would be a big improvement.
This comment was written by Larry.Report this comment to the moderators
July 26th, 2004 at 5:12 pm
Article III, Section II of the Constitution reads, in part, “In all the other Cases before mentioned [cases other than those where an ambassador, a public Minister or Consul, or a U.S. State is one of the parties], 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.”
That means that Congress is entitled consitutionally to regulate and make exceptions to the SJC’s appellate jurisdiction. If that doesn’t make this law constitutional, I don’t know what would.
That’s not to say I think it’s a good law. I think it’s terrible. But those people claiming the law is unconsititutional ought to read the Constitution.
This comment was written by Amy Phillips.Report this comment to the moderators
July 26th, 2004 at 5:57 pm
Amy, I thought so too. But the sentence before that one, which talks about people suing a US State, says nothing about Congress restricting the Court’s authority. And presumably the issue wouldn’t reach the courts unless someone sued a State.
This comment was written by Omar K. Ravenhurst.Report this comment to the moderators
July 26th, 2004 at 5:59 pm
But is it constitutional to make an exception to the judiciary’s jurisdiction for a law that is unconstitutional?
Are you saying, to make a wild example, that congress could pass a law allowing slavery and a law taking the jurisdiction over said slavery law away from the judiciary? If so, what is the point of having a judicial branch at all?
This comment was written by Jake Squid.Report this comment to the moderators
July 26th, 2004 at 8:33 pm
Bugs Bunny Goes to Congress
This comment was written by green gabbro.If OxBlog has it right, and I have OxBlog right, H.R. 3313 is still Constitutional - but it’s a piece of trickery worthy only of Bugs Bunny.
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July 26th, 2004 at 8:46 pm
Just more proof that the collective IQ of the republican members of the House of Reps is about 12.
As if this would ever go anywhere. What a waste of time and the money we are paying these clods to act on Homeland Security issues and gee…in July? I don’t know, maybe do some APPROPRIATIONS work?
This comment was written by shannon.Report this comment to the moderators
July 26th, 2004 at 9:05 pm
Aw, crikey, sorry for the double-trackback!
Anyway, OxBlog has a follow-up post; judging from that, the Supreme Court has original jurisdiction over all federal issues except those issues for which Congress has created inferior courts. This currently includes all issues, but if Congress decides to amend the inferior courts to not have jurisdiction over a specific issue… the Supreme Court would have original jurisdiction, and wouldn’t need no stinkin’ appellate power. So it’s not so much destroying judicial review as it is providing an expedited path for DOMA cases to reach the Supreme Court.
Frankly I think this could be really, really hilarious.
This comment was written by yami.Report this comment to the moderators
July 27th, 2004 at 5:16 am
Thanks for pointing to the follow up post Yami. That reading makes more sense to me. In my first article on this bill, I had commented that the exception claused seemed to be in a section discussing shifting around jurisdiction — not power entirely.
Oxblog analysis is obviously more thorough, and makes sense to me. Of course, I still don’t know if it’s correct, but I sure hope so.
Like Jake, I can’t help wonder: If this bill is constitutional, why can’t congress pass a clearly unconstitutional law and just strip jurisdiction? (Like, make me Supreme Monarch of the US?)
This comment was written by lucia.Report this comment to the moderators
July 27th, 2004 at 6:52 am
So if I’m understanding this (my brain is a bit fuzzy today. It’s a Jewish fast day and I’ve about
3.5 hrs left of a 24hr fast.) than congress can restrict any issue to the jurisdiction of the supreme court, but can not limit the supreme courts rights to try the case.
It also would seem to me that an issue would be less
limited than SSM; ie, it would have to push all issues of marriage into the supreme court. Or is this a false impression on my part.
In any case it seems it is unconstitutional.
This comment was written by Rachel Ann.Thank G-d. Checks and balances exist for a reason.
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July 27th, 2004 at 7:02 am
ongress can restrict any issue to the jurisdiction of the supreme court, but can not limit the supreme courts rights to try the case
This seems to be one interpretation of the meaning of the two relevant constitutional clauses. It sort of “makes sense”. You can shift jurisdictions, but not remove jurisdiction granted to the federal judiciary in clause one away from the federal courts entirely.
Once again, I don’t know if it’s a correct interpretation.
It also would seem to me that an issue would be less limited than SSM; ie, it would have to push all issues of marriage into the supreme court. Or is this a false impression on my part.
I’d have to reread the wording of the law and DOMA. My impression is that the bill restricts interpretation of DOMA. So. it would remove both polygamy and same sex marriage from review by federal courts. (Presumably, it would also prevent the federal courts from reviewing laws prohibiting one from marrying a box turtle, since a box turtle is neither a man nor a woman.)
This comment was written by lucia.Report this comment to the moderators
July 27th, 2004 at 11:35 am
Larry,
“Judicial Oligarchy”? You’re kidding, right? Do you understand the difference between interpreting laws as already written and writing them yourself? Or do you think that we should just do away with the Constitution altogether and move to a purely “majority rules” democracy?
This comment was written by ADS.Report this comment to the moderators
July 27th, 2004 at 11:46 am
I’m going to try to watch for legal opinions on this bill and eventually list a whole bunch. But, I figure people might want to read them in real time. Here is one I just found:
FindLaw columnist Joanna Grossman write a long article, and concludes:
For all these reasons, the MPA is likely unconstitutional.
Obviously, no one *knows* if it’s constitutional. So far, every opinion I read says likely unconstitutional. However, I haven’t found many opinions, and it’s entirely plausible that people who oppose the bill are more motivated to write than those who support it.
This comment was written by lucia.Report this comment to the moderators
July 27th, 2004 at 12:17 pm
Can the supreme court, in an ironic fashion, rule to ban the constitutionality of the ban of their judicial review? In addition to HR 3313, the ban on stem cell research passed by the republicans should also be removed.
I know that Congressman Peter Deutsch introduced a bill into congress that would lift the ban on federal funding for this form of in vitro research that President (hopefully not for too long) Bush introduced three years ago. If anyone is interested, visit the website below to urge President Bush to allow scientists to do thier job.
http://www.peterforflorida.com/petition/stemcell.shtml
This comment was written by stem cell.Report this comment to the moderators
July 27th, 2004 at 12:58 pm
It really does seem that this bill simply makes the route of cases on SSM direct to the SCOTUS. What an amazing waste of time. This isn’t going to pass the Senate. This is only for Reps. who need to go home and tell anti-SSM voters that they voted to strengthen laws against SSM. Colossial waste of time, when they should be acting on the 9/11 commission report.
This comment was written by Bill Nazzaro.Report this comment to the moderators
July 27th, 2004 at 1:38 pm
Amy, its not quite so simple as you state (differences between “original” and “appellate” jurisdiction, et al.) and the fact that no law has yet been passed such as this suggests that perhaps the congress (filled with lawyers for two centuries)has always known that such a law would in fact be ruled unconsitutional (otherwise you’d think they would have passed such a law by now.. slavery? civil war? WWII? civil rights?and all the other conflicts the congress has had with the supreme court.
More on the Court’s jurisdiction and understanding article III, section II, clause II
and to Larry,
I’d hardly call one state court ruling on the interpretation of their own state constitution (a duty they are given in said constitution), whose judges were appointed by elected governors (3 of the 4 concurring judges by Republican governors) and who could be recalled or ruling overturned with constitutional amendment (as has been done many times in Massachussett’s history), and a ruling that the majority of Massachusetts citizens agreed with (Boston Globe poll: 50.5% for, 38% against 10.5 undecided)…
I’d hardly call that judicial oligarchy. Its called a well run check and balance democracy that respects the rights and opinions of ALL its citizens (thus rule of the PEOPLE, not just 50% plus 1)
As to the “legislative dictatorship”, perhaps I should change my wording, that doesn’t quite fit..
Instead I’ll call it “Mob Rule”
Which I guess if just fine as long as you are part of the mob.
This comment was written by Trey.Report this comment to the moderators
July 27th, 2004 at 1:40 pm
Amy, its not quite so simple as you state (differences between “original” and “appellate” jurisdiction, et al.) and the fact that no law has yet been passed such as this suggests that perhaps the congress (filled with lawyers for two centuries)has always known that such a law would in fact be ruled unconsitutional (otherwise you’d think they would have passed such a law by now.. slavery? civil war? WWII? civil rights?and all the other conflicts the congress has had with the supreme court.
More on the Court’s jurisdiction and understanding article III, section II, clause II
and to Larry,
I’d hardly call one state court ruling on the interpretation of their own state constitution (a duty they are given in said constitution), whose judges were appointed by elected governors (3 of the 4 concurring judges by Republican governors) and who could be recalled or ruling overturned with constitutional amendment (as has been done many times in Massachussett’s history), and a ruling that the majority of Massachusetts citizens agreed with (Boston Globe poll: 50.5% for, 38% against 10.5 undecided)…
I’d hardly call that judicial oligarchy. Its called a well run check and balance democracy that respects the rights and opinions of ALL its citizens (thus rule of the PEOPLE, not just 50% plus 1)
As to the “legislative dictatorship”, perhaps I should change my wording, that doesn’t quite fit..
Instead I’ll call it “Mob Rule”
Which I guess if just fine as long as you are part of the mob.
This comment was written by Trey.Report this comment to the moderators
July 27th, 2004 at 5:53 pm
Eugene Volokh weighed in. First, he says this is not his area of legal expertise, so he consulted a friend.
He thinks the law likely IS constitutional, but he is not certain of this. However, he also says that the supporters will regret it. Specifically:
What’s more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there’ll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution — such as the Goodridge gay marriage decision in the Massachusetts — will do nothing to change the state court’s interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won’t be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)
So, say a DOMA case was lodged in Massachusetts. And THEY found DOMA violated the US constitution. Then, there would be nothing legislators of voters could do to remedy this (except try to Amend the US constitution. )
These types of really weird potential outcomes may explain why Congress hasn’t tried to use this ploy!
This comment was written by lucia.Report this comment to the moderators