The Pledge and the Imperial Congress

Without doing background research to citate the point, I think it’s pretty well established that, though a balance of powers was sought between the three branches, the finger was put on the scale a little bit to give Congress a little bit more power.

Congress can remove the President. Under the original constitution, the Congress could have removed the president and the vice president, and then ruled by enactment, with a Speaker/Prime Minister. Congress can also remove Justices from the Supreme Court and outright destroy the inferior Federal Courts.

The check on Congress was meant to be the people, who (as first set-up) would act through their state legislatures and their direct vote to temper the acts of their representatives and senators.

So, how then can the other branches react to Congress’s largest power-grab since the impeachment? It’s not clear that they can, but there is room.

The House has passed a bill limiting the jurisdiction of the Federal courts, excluding them from hearing cases about the pledge of allegiance. Other bills have been introduced with these jurisdictional limiting elements, including one on gay marriage.

Balkanization presents this argument based on the idea of “two-tiered Article III.” Essentially, this would mean that Congress can’t in fact remove jurisdiction of the Supreme Court to hear cases arising under the Constitution. It’s a textual argument based on a structural one.

I’m not sure I think the Supremes will buy it. No worries, I have something they are probably even more loathe to accept, but the weight of precedent may be much more forceful in this case.

The upshot of this law is to relegate to state courts the interpretation of this particular aspect of federal constitutional law. I believe this violates due process. The due process clause of the Fifth Amendment applies to the Federal government and its enactments, so we’ll be considering it here (it has been held to be parallel to the state limiting clause in the 14th amendment).

First, if there are 50 different rulings, that might be enough. Crossing over state lines with different federal rights could implicate the privileges or immunities clause as well, but I’m not going to get into that–I’m already out on a limb, so I’ll stay off the twigs. It’s not a frivolous argument that 50 different first amendments deny a person to their single right under the constitution.

But here’s my thought. It is established that there are extreme limits on the jurisdiction of a state court to issue orders to federal agencies (I think it can’t be done unless there is aprovision expressly allowing it). So, if someone sought a remedy against a federal agency, no relief could issue from a state court. A right with no remedy violates due process.

So, at least to that extent these jurisdiction limiting acts should be unconstitutional. I think after that it’s a matter of line drawing, and you could build on that predent that there absolutely must be some forum for adjudictaing federal constitutional rights–a backdoor, if you will to the two-tiered Article III argument above.

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