[This is Part Two of my answer to the question: Is there anything
that Congress can do to address the recent Supreme Court decision in Obergefell
v. Hodges?
In this second segment, I provide a list of possible actions of various kinds available for Congress to undertake. I am not providing likely, practical, or certain to succeed tactics. I’m providing here a list of available options. I’ll allow Majority Leader McConnell and Speaker Boehner explain why none of these is worth exploring.]
As I closed part one of this blog, we watched Sheriff
Buford Pusser (played by Joe Don Baker) use his recently discovered legal
authority to punish an uncooperative trial judge. Of course, the scene shows
what happens when the judge interfered with his efforts to clean up the county
in that fictionalized account, Walking Tall, based on Sheriff
Pusser’s true life story. The film, of course, employed staff writers who
created the humorous device of revenge depicted. In real life, our limits,
however, are no different.
First, we have to know what power Congress might have to bring to
bear in this circumstance. Second, we have to know whether Congress might
exercise that power. Remember, this discussion is focused particularly on
whether Congress is stymied by the Supreme Court’s same sex marriage decision, Obergefell v. Hodges.
Pusser made the task look easy. One minute, he’s being verbally
rebuked by a judge over his lack of knowledge of the law. The next minute, he’s
relocated the judge to his new basement bathroom chambers, after having
reviewed at least one full volume of the law. I’d like to tell you that our
task -- discovering whether Congress is stymied -- is so simple, so easily
accomplished.
I’d like to tell you that . . . so I will.
Even if you are beginning this post with virtually NO KNOWLEDGE on
the topic, in a short period of time, you will understand the extent of power
the Congress holds over the Court. I will warn you: such knowledge can be
maddening. You may not be happy to discover what you will learn today.
Both Congress and the Courts Answer to the Constitution
The US Constitution sets the parameters of power and authority for
each of the branches of the federal government. Article III of the
Constitution creates the
Judicial Branch, endows that branch with all the judicial power of the federal
government, and provides a basic framework for the branch.
Article III, section 1 provides that there will be one Supreme
Court, and then delegates to Congress the question of whether and how many
inferior courts to establish. That section also provides lifetime tenure for
judges and bars the government from ever reducing the compensation paid to a
judge while they are in service.
Section 2 establishes the extent of the judicial power and sets
out the parties and matters in controversy reached by the judicial power of the
United States
Articles I and II of the Constitution contain provisions relevant
to our subject.
Article I, Section 2, grants to the House of Representatives “the
sole power of impeachment.” Article I, Section 3, grants to the Senate “the
sole power to try all impeachments,” requires the vote of two-thirds of the
Senate to convict on impeachment, and limits the effect of impeachment to “removal
from office, and disqualification to hold and enjoy any office of honor, trust
or profit under the United
States United States
What Congress Can Do: B.O.I.L. The Supreme Court
B.O.I.L.: BUDGET, OVERSIGHT, IMPEACHMENT, and LEGISLATION Offer Four Distinct Categories of Responses by Which Congress Can Answer the Obergefell Decision
If a Representative’s or Senator’s sole defense against legislative action is that there is little likelihood of success in any of these efforts, and if you are content to leave your Representative and Senators in peace when they let slip the “wolf” cry of “futility,” then read no further. Simply accept that there is nothing that Congress will do in response to what many perceive to be a lawless decision of the Court.
On the other hand, if you recognize that the Constitution has
equipped the Congress with important tools for the maintenance of the
separation of powers, and for the maintenance of federalism, then read on. I
will offer you a framework of available kinds of Congressional actions, and
several specific proposals to be pursued. To make the tools easy to recall, I’ve
even devised a mnemonic to summarize them. The mnemonic is B.O.I.L. Those
letters stand for four distinct powers of Congress relevant to the maintenance
of the separation of powers and the accomplishment of the duties assigned to
Congress.
“B” stands for Budget.
With only one exception, the power to allocate funds for spending
by the federal government is entirely and completely in the hands of the
Congress. The scope of that power is extensive, and includes the ability to
adjust virtually every penny spent in the Supreme Court and the inferior
federal courts, except the salaries of current judges.
“O” stands for Oversight.
The Congress has extensive powers to conduct hearings and
investigations. The scope of oversight power includes everything that could be
the subject of Congressional action, as well as the actions of the Executive
Branch as it fulfills legislative policy.
“I” stands for Impeachment.
The power to impeach is exclusive to the House of Representatives,
and the power to try an officer of the United States
“L” stands for Legislate.
Congress has the power to enact legislation relevance to this
issue.
In fact, Congress had already done so when it enacted the Defense
of Marriage Act, and when it enacted the Religious Freedom Restoration Act.
Congress also has power to enact legislation affecting the jurisdiction of the
Supreme Court and of the inferior federal courts.
These powers of Congress – budgeting, oversight, impeachment and
legislation – are considerable. These powers, too, are effective when actually employed.
In fact, knowing how considerable they are, how effective they can be, might
make you BOIL with anger at the failure of Congress to begin immediately
deploying these powers in answer to the Court’s decision.
Budget Actions
Congress has the power of the purse.
If Congress clamps the federal purse shut, monies cannot be spent
by the Executive Branch. Few limits at all exist on that Congressional power,
so long as the spending to which Congress commits us falls within
constitutional categories, such a promotion of the general welfare. Congress
has the ability to establish policies across a broad expanse of human activity
simply in the decisions it makes about how to spend funds. South Dakota v. Dole, which
I discussed in another post, shows how Congress can reach into areas of
even severe constitutional limitations on its powers (the 21st Amendment grants
plenary authority over issues related to the sale, distribution, and use of
alcohol to the States; yet, South Dakota affirmed the Spending
Clause power of Congress to induce the States to choose to raise their legal
drinking ages in order to maximize receipt of federal highway funding).
There are limits on the power of Congress with respect to
budgeting. One is directly relevant. The Judicial Article, Article III,
provides that judges of the Supreme Court and lower federal courts have life
tenure, on their good behavior, and that their compensation may not be
decreased during their service:
Thus, while Congress has a broad power over the budget, the
Congress is bound by the Constitution to provide for the compensation of
appointed federal judges. That limitation, however, only directly bars Congress
from reducing pay. Neither taking away a future increase in judicial salary nor
applying generally applicable tax provisions to federal judicial salaries violate
the Compensation Clause.
Congressional control over the budget of the Judiciary is a
substantial power. One of the curiously satisfactory moments on Capitol Hill
each year is the annual visit by Supreme Court justices presenting to Congress
their justification for the Court’s proposed budget:
The budget for the federal judiciary includes program costs,
payroll costs, and capital costs. While, constitutionally, payroll for Justices
and Judges may not be
diminished, the same is not true for other employees within the Judicial
Branch. While such picking of nits may seem petty, the problem that Congress
faces with a resolute Judiciary may require it to make important, and to the
Judiciary, painful decisions.
For example, while the Congress cannot diminish the salaries of
the Justices (approximate annual salary totals 2.27 million dollars), it could
ELIMINATE paid law clerk positions at the Court, reducing federal expenditures
there by 2.6 million dollars. Supreme Court law clerks are NOT part of the
constitutional framework of the United
States
The Constitution, however, knows no such position as a Supreme
Court law clerk. In
fact, the Court’s justices went without clerks for the first century,
nearly, and when they got their first clerks, the clerks were, purely,
stenographic clerks. Clerks were not
the seeming “junior justices” whose influence over various justices today is occasionally
hotly debated. There is a significant lifetime value to a Supreme Court law
clerk resulting from having held that position and the connections it provides.
Consequently, I have no doubt that the Justices of the Supreme Court (and of
the inferior courts) could fill their needs through programs of voluntary
clerkships.
Other elements of the budget of the Courts could be taken in hand
by the Congress.
When Jimmy Carter faced the twin evils of inflation and energy
shortages, he imposed rules adjusting temperatures in all federal buildings.
The rules demanded lower thermostat settings in the winter to reduce heating
costs, and higher thermostat settings in summer to lower cooling costs. Carter’s
rule was not a well-loved program. It did, however, help the federal government
in pursuit of desired cost-savings.
Back then, a federal judge unsuccessfully sought to resist the
rule. Essentially, he claimed that the changes were a reduction in judicial
compensation and that the rule violated his separation of powers. His argument
failed.
Congress – properly incensed by a lawless judiciary – could
induce savings in the budget by requiring that the ambient temperatures in
the Supreme Court be raised by a few degrees in the summer months and lowered
by a few degrees in the winter months. Perhaps you consider such action petty? No,
it is not petty. Just as the Court seems to conclude that Congress should
simply recognize that, the Court has only done what the Constitution empowers
it, and requires it, to do, the Court would and should recognize that the
Constitution empowers the Congress to make decisions regarding budgeting.
In addition, the Supreme Court has a library. When I used that
library while working on cases we had pending at the Court, I noticed a variety
of subscription publications in the library. The Court’s magazine and newspaper
subscriptions can be, and should be, closely reviewed.
In the 1980s, the House passed a budget amendment that stripped
funding from a Braille services program of the Library of Congress. That budget
reduction matched the costs incurred by the Library of Congress’ creation in
its creation of Braille versions of Playboy magazine. A federal trial court
found that particular decision to be a form of viewpoint discrimination against
speech related to sex, and unconstitutional. That decision, however, would not
implicate a viewpoint neutral evaluation by Congress of such expenditures.
Based on its power of the purse, the Congress could review the
subscription expenses of the Supreme Court and make appropriate cost cutting
there. The New York Times or the Washington Post might wince, but there is
nothing wrong with, and a lot to be commended in, bringing a close eye to
determining precisely the publications necessary to the completion of judicial
tasks. No others should be funded by Congress.
Now, against the idea of using the power of the budget, and in
particular making reductions in the budget for the Supreme Court or the
inferior federal courts, I suspect that the key argument is that such a
reaction constitutes a kind of petty recrimination. I suppose it could be viewed that way. But then, these
kinds of tit-for-tat if an American
citizen with reasonable income declines to subscribe to a health insurance
policy, she is required to pay into the federal government an annual, ever
increasing, “Shared responsibility fee,” for the privilege of doing so. Nor is
such pettiness limited to individual taxpayers. In South Dakota v. Dole, the
Supreme Court sustained a federal funding program requirement that a State
refusing to raise its legal drinking age to 21 would forgo a petty 5% of
federal highway funding.
As it turns out, Congress, through its enactment under Democrats
of Obamacare and its enactment under Democrats of the inducement to the States to
raise the legal drinking age to 21, has demonstrated a perfect willingness to
engage in what some might consider rather petty power plays. So, here, where
the cause is just, and the means exist, Congress has EVERY RIGHT and EVERY
REASON to use the Spending Power to express its displeasure with the Court for
it decision.
The principal drawback to BUDGETARY recriminations is that
Congress must demonstrate political will. To prevail, the Republican Leadership
must possess resolve, they must have real commitment to the purpose. While
Congress may want to bring the Court to heel, the current President celebrated
the Obergefell decision
by illuminating the White House with a rainbow of colors. It is altogether
unlikely that Barack Obama will accede to such Congressional acts. So if
Congress were to pass spending legislation with limitations on the budget for
the Judiciary, it would need to have the political will to stand by their
enactment, even if the President threatens to, or actually does, veto such
legislation.
Oversight Actions
Justice must not only be done, it must be seen to be done.
Congress can use its power of investigation and review -- its
oversight power -- to illuminate whether Obergefell is
an instance in which justice has been done.
Justice Scalia, dissenting in Obergefell,
noted something quite disturbing about the Obergefell Court
Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.
In the past week, I have seen recriminations
on line against Twitter due to the under-representation
in its labor force of African Americans. And, within the current year,
there have been voices calling for a change to Army Ranger
School
These stories show that the racial composition of the workforce of
private employer such as Twitter can be made a matter of public concern, and that
the gender composition of a government unit like the Army Rangers, too, can be
made a matter of public concern.
Can it fairly be claimed that the religious affiliations,
schooling, geographic origins, and schooling of members of the Judiciary, in
particular, of the Supreme Court, are not of concern to the American people? In
fact, how can it be unreasonable to suppose that the very real difference between the demographic
composition of the Court, when compared with the composition of this Nation’s
People, is significant?
It would be perfectly within the power of Congress to conduct
oversight hearings on the “railroad track” that leads from one or two Ivy
League law schools to a select federal trial and federal appellate clerkships,
thence to which Supreme Court clerkships and to which law firms and/or
government agencies and then to which administrative appointments and then
judicial appointments, and, in a select set of cases to which Supreme Court
appointments. Why shouldn’t the American people learn that the seeming
disinterest of the Judiciary in the topics upon which it is called to rule is
actually, or may be, the product of a careful career of grooming by
institutions not necessarily in sync with the views of the American people on
various matters of policy?
Beyond inquiring into how a law student becomes a clerk becomes a
federal employee becomes a federal appointee becomes a judge, there are some
real, important, and helpful matters of oversight that could be made the
business of the Judiciary Committees of the House and the Senate.
For example, the Obergefell decision
itself could be examined by the Constitution Subcommittees of Judiciary
Committees of the House and the Senate.
Justice Kennedy’s opinion for the Court lays the foundation for
same sex marriage within both the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment. Congress could certainly examine the body
of law and logic, both historical and current, to evaluate the quality of the
decision. Indeed, as each Branch of the government must judge for itself the
meaning of the Constitution, it is appropriate and necessary that they do so.
Oversight could also bring before the Judiciary Committees
questions about the Defense of Marriage Act, and the power of the Congress
exercised adopting DOMA. When Congress enacted DOMA, it employed its authority
under Article IV of the Constitution to confirm that each State would have the
right to decide for itself how, and whether, it would recognize same sex
marriages created under the law of sister States. It also employed its
Legislative power to define marriage as being between one man and one woman for
purposes of federal law.
The Obergefell decision
finished off DOMA by concluding that States were required to give “full faith
and credit” to the acts and judgments of other States with respect to the
creation of, maintenance of, and dissolution of, same sex marriages. Two Terms
ago, the United States v.
Windsor decision from the same Court struck down that portion of DOMA
by which Congress limited the definition of marriage for federal law purposes
to opposite sex marriage.
Both Windsor and Obergefell implicate
powers of Congress. Both are worthy of particular evaluation and consideration
by the appropriate Committees of Congress. Oversight hearing would afford the
Congress with important opportunities to review the impact of decisions of the
Supreme Court on the powers of Congress.
Finally, there are post-Obergefell ramifications that
must be taken into consideration, and it would be appropriate for Congress to
begin the process of assessing those ramifications. Here I have particularly in
mind the impact of the decision on individuals who, by reason of religion or
conscience cannot provide services or support for the formation of, and
celebration of, same sex marriages.
First, because there is a real risk that the Internal Revenue
Service might treat Obergefell as
determining a national question of policy, not merely on same sex marriage, but
on discrimination based on sexual orientation, Congress should conduct
oversight hearings of the Internal Revenue Service. Congress should inquire of
the IRS how it interprets Obergefell in
relation to a determination of national public policy. [For those who may
not know why this point is important, the IRS revoked income tax exemptions
from a private college and a private school based on racially discriminatory
policies. I
have explained the implications of the Bob Jones University case
previously.]
Second, Congress should conduct investigative hearings to assess
the state of the law regarding public accommodations requirements around the
Nation, and how non-discrimination requirements in the States interplay with
conscientious objection. Such hearings can inform how Congress decides to
proceed with respect to strengthening the Religious Freedom Restoration Act,
the Religious Land Use and Institutionalized Persons Act, the Defense of
Marriage Act, proposed constitutional amendments regarding marriage (either
defining marriage as between one man and one woman or confirming that the
States alone have the power to determine for themselves the definition that
governs marriage in their borders).
Impeachment Actions
For those who’ve watched over six years of criminality and
incompetence of the present administration without Congress ever taking any
step toward consideration of impeachment, it will be, perhaps, frustrating and
pointless to be reminded of that the sobering tonic of impeachment belongs to
the House of Representatives. The House has the power to draw up Articles of
Impeachment against the Justices of the Supreme Court and judges of the
inferior federal courts. If the House were to do so, and were to approve
Articles of Impeachment by a sufficient margin, the Senate would have the power
to conduct trials of justices or judges so impeached.
This power has been exercised by Congress before. More
importantly, in the only instance in which the House ever actually impeached a
sitting Justice of the Supreme Court, Justice Samuel Chase, the impeachment
resulted entirely from political
disagreement between Chase, a staunch Federalist and supporter of the
Alien and Sedition Acts, and supporters of Thomas Jefferson, who bested the
Federalists in the 1800 Presidential election and ardently opposed the same
Alien and Sedition Acts. While Chase was acquitted in the Senate, he has that
curious asterisk by his name in the annals of history, indicating his status as
the only justice of the Supreme Court to be impeached by the House.
There are good reasons to look at impeachment.
Before the Supreme Court decided Obergefell v. Hodges,
while the case was pending there, two justices of the Supreme Court, Ruth Bader
Ginsburg and Elana Kagan, officiated at same sex marriages. Their “dispassionate
participation” of Obergefell can be reasonably doubted. Indeed,
only a cynic could conclude that it was proper for these two justices both to
officiate weddings that the Court might well find were not constitutionally
required and to decide whether, in fact, the weddings they officiated were constitutionally
protected. Ginsburg and Kagan ought to have recused themselves from deciding Obergefell. Their decision to participate may
well constitute misbehavior in office. A reasonable observer would find the
task of distinguishing their involvement in that case from another justice
deciding cases involving corporations in which that justice holds investments.
Nor should Congress ignore that the Obergefell majority trespassed boundaries on the judicial power set
out in the Constitution. The States created the federal government by ratifying
the Constitution. They bounded the power of that federal government by limiting
its powers to those donated by the States expressly to it. Nothing in the
Constitution empowers the Supreme Court to make policy regarding marriage for
any State or, as it did in Obergefell,
for the entire Nation.
Such trespassory invasions of State powers – reserved to the
States the Tenth Amendment – constitute misconduct in office. To be sure, we
could simply categorize such matters as disputes over outcomes. Doing so,
however, explains in substantial part how we have arrived at a place in time
and policy where politicians and citizens are unsurprised at
the notion that the final word on
the power of States to define marriage belongs to the Supreme Court. Congress
can curb the aggrandizement of power at the Supreme Court by examining the
institutional abuse that Obergefell constitutes.
Impeachment is not just for “crimes” like murder or theft.
Political wrongs can be answered by impeachment. Impeachments of that sort have
been done before, and they should be considered here again.
Legislative Actions
Congress has significant power to curb the Supreme Court by
legislation.
The Constitution states:
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.
While we are accustomed to viewing the United States Supreme Court
as the nation’s court of
last resort for a panoply of issues, that is so only because the
Congress has expanded the reach of the Court through legislation. Truth be
told, Congress has the power to strip the Supreme Court of jurisdiction over
questions related to marriage, or other matters.
The Supreme Court typically exercises its power of judicial review
to review decisions of the inferior federal
appeals courts, and to review certain
decisions of State courts. The Supreme Court
exercises that power because Congress
has granted it to the Court in accord with Article III.
The idea of limiting the jurisdiction of the Supreme Court is
neither new nor untested. In fact, Congress has limited the jurisdiction of the
Supreme Court in the past. In fact, in the era of Reconstruction, after the
Civil War, while the Court was
actively considering a case, Congress stripped the Court of its jurisdiction in
the matter. The Court
acknowledged that they could not decide a case then currently pending before it:
We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.
Nearly a century later, Justice Owen Roberts, writing in the ABA Journal, Volume 35, at 1,
proposed an amendment to the Constitution to strip Congress of this power to
limit the jurisdiction of the Supreme Court. Roberts explained the need for
such an amendment by describing the existing power of Congress:
I do not see any reason why Congress cannot, if it elects to do so, take away entirely the appellate jurisdiction of the Supreme Court of the United States over state supreme court decisions.
As Justice Roberts understood (and feared) Congress can reconsider
the scope of review on appeal and on certiorari available in the Supreme Court.
[If you want to get down into the fascinating weeds of the
stripping of jurisdiction by Congress of the Supreme Court’s appellate review, here
is a dated, but relevant consortium worth the time taken to read.]
In addition, Congress can limit the availability of the inferior
federal courts for litigation of the kind that led to the Obergefell decision. In
fact, current federal statutes include restrictions on the jurisdiction of
lower federal courts in a variety of matters. When
the design, placement, and building of the now-complete World War II Memorial
was underway, Congress enacted a statute stripping the federal courts of
jurisdiction to entertain challenges to the site selection process.
Congress also used its jurisdiction-stripping power when it
enacted three federal laws related to crime, to illegal immigration and to
terrorism. In those cases, Congress restricted the power of federal courts to
review various questions that were previously within their jurisdictional
reach. Those three laws are the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, the Prison Litigation Reform Act of 1996, and the
Antiterrorism and Effective Death Penalty Act of 1996.
Congress can, and should, examine the role of the inferior federal
courts in the judicial sweep that preceded the Supreme Court’s decision in Obergefell. In light of how the
federal courts became embroiled in questions properly ones for the political
branches of State government, or to the People of the States, Congress should
strip the inferior federal courts of jurisdiction to entertain such cases.
In addition, Congress should address topics indicated in previous
sections of this blog:
Congress should expressly state that tax exempt 501(c)(3) status
may not be stripped from an organization based on policies that may be
considered by the IRS (or complainers) as inconsistent with “national policy”
regarding same sex marriage expressed in Obergefell.
Congress should expressly state that the Religious Freedom
Restoration Act protects religious bodies and individuals in the maintenance of
their practices related to marriage, even if viewed as inconsistent with, or
contrary to, Obergefell.
Congress should expressly state that the RFRA protects those in
private enterprises who contract with, or provide services to, the federal
government (that latter point anticipates that
the Obama administration is likely soon to embody a nondiscrimination provision
in federal contracting) against violation of their religious conscience with
respect to same sex marriage.
* * * *
Indeed, Congress is not powerless
in the face of the Supreme Court. To permit it to claim powerlessness requires
that the People ignore the Constitution. The tonic for a Court that ignores the
Constitution will not be found in a People that do so, or that tolerate a
Congress that does so.
Ultimately, we must ask, not does Congress have power, but is
Congress willing to act? Will they use their power over the budget, their right
to conduct oversight, their power to impeach, and their legislative power to
reprove the Supreme Court in answer to the Obergefell decision?
Let that question stew in your mind. Then insist that Congress BOIL the Supreme
Court.
