"HOUSE TARGETS JUDICIAL ERRORS"

The Washington Times reports on two House votes to prevent enforcement of controversial judicial rulings. Read Rep. Hostettler's (R, IN-8) press release here. The amendment was part of an appropriations bill.

Here's the roll call vote, and here's the relevant portion of the Congressional record, from here (Thomas). I include it below -- with emphasis added -- because it raises the argument that this amendment (like many other court-curbing bills) is merely symbolic. Note especially the amusing exchange at the end of this section between Hostettler and Congressman David Obey (D, WI-7). Note also how Federalist #78 gets turned into an affirmative defense of congressional power by Hostettler. Even though I think that this amendment serves the wrong goals, I see nothing wrong with members of Congress acting on their own considered views of the meaning of the 1st Amendment. It's a little hard to square this view with professed Republican adherence to "following the law," unless that view entails the proviso that the courts sometimes get "the law" wrong and that Congress has the authority to declare what "the law" is after federal courts have spoken on a constitutional matter. I'm not so sure that that's a bad thing, all things considered, but it's something that needs more thought. It's certainly a logical next step after the ascendancy of a party that has made criticism of the direction of constitutional jurisprudence one of its main platforms.

The CHAIRMAN. The Clerk will designate the amendment.

The text of the amendment is as follows:

Amendment offered by Mr. Hostettler:

Insert in an appropriate place the following:

SEC. ..... None of the funds appropriated in this Act may be used to enforce the judgment of the United States Court of Appeals for the Eleventh Circuit in Glassroth v. Moore, decided July 1, 2003 or Glassroth v. Moore, 229 F. Supp. 2d 1067 (M. D. Ala. 2002).

Mr. HOSTETTLER. Mr. Chairman, in Glassroth v. Moore, the 11th Circuit Court of Appeals ruled that the Alabama Supreme Court Chief Justice Roy Moore violated the establishment clause of the first amendment to the Constitution by placing a granite monument of the Ten Commandments in the rotunda of the Alabama State judicial building in Montgomery, Alabama. In the court's words, ``The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted.''

In this statement, Mr. Chairman, the court plainly shows that it believes itself to be the chief lawmaker whose orders become law. But, in fact, Mr. Chairman, this is inconsistent with both the Constitution and article I, section 8, and, in fact, Federal statute, which says that the United States Marshal Service shall execute ``all lawful writs, process, and orders of the U.S. district courts, U.S. Courts of Appeal and the Court of International Trade, 28 U.S.C. 566(c).

In reality, Mr. Chairman, the founders of this great Nation foresaw this problem and wrote about it. And when they developed our form of government, they said this, according to Alexander Hamilton in Federalist No. 78: ``Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them.

``The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.''

Mr. Chairman, given the fact that the judiciary has neither force nor will, it is left to the executive and the legislative branches to exert that force and will.

We have heard tonight that the executive branch wants to argue the Newdow case that was spoken of earlier and may hear that the executive branch wants to argue in favor of the display of the 10 Commandments in that case. We will allow, therefore, the executive branch to leave these decisions in the hands of the judiciary who, a few years ago, concluded that sodomy can be regulated by the States, but most recently said that sodomy was just short of a fundamental right that is enshrined in our United States Constitution.

But the framers of the Constitution never intended for the fickle sentiments of as few as five people in black robes unelected and unaccountable to the people to have the power to make such fundamental decisions for society. That power was crafted and reserved for the legislature, and one of the mechanisms that was entrusted to us was the power of the purse.

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Mr. Chairman, time and again I am sure that our colleagues are asked about ridiculous decisions made by the Federal courts, and many of us say that there is nothing we can do. Mr. Chairman, today, we can do something. We do not have to put our faith in the faint possibility that some day five people in black robes will wake up and see that they have usurped the authority to legislate and will constrain themselves from straying from their constitutional boundaries.

Mr. Chairman, it might be suggested that we do not want this legislation to disrupt the judicial process in the interim between the Circuit Court of Appeals process and the Supreme Court. It is not my intention to do that tonight. In fact, I welcome the highest Court's review of this decision; and I say tonight that if they get it wrong, I will exercise the power of the purse again and defund the enforcement of that inane decision.

Mr. Chairman, today is a great opportunity for us to learn the powers of the legislature vis-a-vis the judiciary. After this vote, Mr. Chairman, and the vote to defund the Ninth Circuit's decision to effectively remove the phrase ``under God'' from the Pledge of Allegiance, sour constituents will ask us, Congressman, do we, your constituents, have a voice in these most fundamental decisions, and we do not need to wait on a new Supreme Court Justice who may or may not, today or tomorrow, inject common sense into the decisions of the Supreme Court?

Mr. Chairman, we will be able to tell them, Yes, you do have a fundamental say.

And it is for that reason, Mr. Chairman, that I have offered this amendment to the Commerce, Justice, State, and the Judiciary Appropriations Act. This legislation is where we find any funding in any executive agency that would enforce the 11th Circuit's judgment in this case. My amendment would prevent any funds within that act from being used to enforce that erroneous decision in Glassroth v. Moore. I ask my colleagues to support the amendment.

Mr. OBEY. [. . .] Mr. Chairman, this amendment is a classic. In the long history of this institution, there have been many amendments offered on the floor of this Chamber. Never has an amendment been offered that did less than this amendment does tonight. It does not matter how people vote. No matter what side one is on on the question of separation of church and State or the Ten Commandments or anything else, it does not matter how one votes, because this amendment does not do nothing to nobody.

All this amendment does is to say that the Justice Department cannot enforce the decision that the gentleman does not like. The only problem is the Justice Department does not enforce this decision anyway. The Justice Department has already made quite clear that this is a ``let us pretend'' amendment. It pretends that we are doing something to protect the Ten Commandments.

I would suggest that rather than offering amendments that pretend to do that, if we want to protect the Ten Commandments, we will simply start by following them in our own lives and in our own careers. That will do a whole lot more than pretending that we are preventing the Justice Department from enforcing a decision which they would not be enforcing anyway.

So I could not care less how one votes on the amendment because it does not have any effect whatsoever. If the gentleman wants to take the time of this body to offer do-nothing amendments, be my guest; but I hope Members are not under an illusion.

Mr. HOSTETTLER. Mr. Chairman, will the gentleman yield?

Mr. OBEY. No, I will not. This is my time. The gentleman has had his time.

Mr. HOSTETTLER. I just asked the gentleman to yield.

Mr. OBEY. And I said no, and I do not intend to yield for the remainder of my time, okay?

Mr. HOSTETTLER. Is this in compliance with the Ten Commandments?

Mr. OBEY. Mr. Chairman, who has the floor?

The CHAIRMAN. The gentleman from Wisconsin has the time.

Mr. OBEY. Mr. Chairman, I suggest the gentleman from Indiana start following the Ten Commandments in terms of the way he treats people on this floor. This is my time. It is not funny.

Mr. Chairman, I would simply close by saying, vote however you want. This is a free vote. It is one of those votes that Members often offer in hopes that the public can be convinced we are actually doing something at 8:15 at night; but with all due respect on this amendment, we are not. So vote any way you want, just do not be under the illusion that when you do so, you are protecting the Ten Commandments. It does not. I could care less what the vote is.

The CHAIRMAN. The question is on the amendment offered by the gentleman from Indiana (Mr. Hostettler).

The question was taken; and the Chairman announced that the ayes appeared to have it.

One more thing is interesting about this amendment. In the Congressional record you can read a note sent from the Justice Department that tries to convince legislators not to vote for this bill [the one Obey is referring to in his comments posted above]. Here's the relevant text from the Justice Department, from this page at Thomas:

Consideration of this legislation at this point would probably be premature. Congress should consider whether the Supreme Court should be given the opportunity to review the 9th Circuit's decision without intervening legislation complicating its analysis and the procedural posture of the case. For example, part of the government's case before the Court involves demonstrating that there is a real harm to the 9th Circuit's ruling. So, if the 9th Circuit's ruling is gutted legislatively, the Justice Department might find it harder to make that claim and could strengthen the hands of our opponents' efforts to diminish or eliminate the Federal government's role in defending the Pledge of Allegiance.

Also, if the Justice Department prevails in the Supreme Court, there is a chance that opponents might try to construe this statutory language as limiting the Federal government's ability to spend funds in a manner consistent with the Supreme Court ruling.

The strategic thinking here is really interesting. The Justice Department argues that this amendment could allow courts to shy away from ruling on the substantive claims. Perhaps as retaliation? Probably not, but given Congress's lousy track record in front of the Rehnquist Court when it tries to assert constitutional interpretive authority, perhaps the folks at Justice are worried.