Monday, July 6, 2015

Congress Has the Power to B.O.I.L. the Supreme Court

[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. This section also sets out a limited category of cases in which the Supreme Court has original jurisdiction, as though it was the original trial court in such matters, and those in which it hears appeals from decisions of lower courts. Section 2 also subjects the Supreme Court’s appellate jurisdiction to “such regulations” as Congress shall make. Section 2 also sets out a limited set of principles regarding the trial of federal crimes, particularly the requirement that crimes committed within a State must be tried in that State.

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.” Article I, Section 8, Clause 9 grants to Congress exclusive power “[t]o constitute tribunals inferior to the Supreme Court[.]” Article II, Section 4 subjects all civil officers of the United States to impeachment and removal from office based on treason, bribery, or other high crimes and misdemeanors. Article I, Section 2 bars the President from granting pardons or reprieves to persons convicted of impeachment.

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 that has been impeached is exclusive to the Senate. The Executive Branch and the Judicial Branch have no authority to interfere with this power of the Congress.

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. They are an asset for federal judges for whom they serve as research assistants, ghost writers, and sounding boards.

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 training standards after EVERY FEMALE RANGER CANDIDATE FAILED.

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.