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Saturday, April 18, 2015

Bringing the courts under control

Typical of a liberal, they want rule by our betters.

Once of the ways liberals try to set in stone their agenda is through the courts. Abortion anyone? There is nothing in the Constitution about birth control, abortion, etc, but between Griswold v. Connecticut and Roe v. Wade, they established a federal mandate for abortion where none exist and forbade the people of this country, though their elected representatives from having significant input. Whereas it was a decision to be made by the state legislatures it was now a directive from the courts.

Now liberals have a selective view of the what is in the Constitution, such as the 2nd Amendment is a "collective right" for the states (even though it says "right of the people"). And one thing they seem to not like is the fact Congress can set the appellate jurisdiction of the federal court system.
Ted Cruz Threatens To Take Away The Supreme Court’s Power To Decide Marriage Equality Cases


In the likely event that the Supreme Court brings marriage equality to all 50 states this summer, Sen. Ted Cruz (R-TX) wants to strip the entire federal judiciary of its power to hear cases brought by same-sex couples seeking the right to marry, according to the Dallas Morning News.

Cruz’s remarks came during a speech in Sioux City, Iowa, where the tea party senator also praised the original, more discrimination-friendly version of Indiana’s new “religious liberty” law, and claimed that a cabal of liberals and big business endorsed a “radical gay marriage agenda” which says that “any person of faith is subject to persecution if they dare” disagree with marriage equality.

Jurisdiction stripping is a controversial idea that has occasionally been proposed by social conservatives seeking to neuter court decisions that they disapprove of. In 1981, for example, lawmakers introduced a total of 22 bills seeking to remove the Supreme Court’s power to hear cases involving “prayer in the schools, abortion, school busing, a males-only draft and state court rulings.” Reacting to Sen. Jesse Helms’s (R-NC) proposal to eliminate the Court’s authority to hear school prayer cases, Sen. Barry Goldwater (R-AZ) claimed that the bill was akin to “outlawing the Supreme Court.”

Yet, while successful court-stripping proposals are extraordinarily rare, and legal scholars disagree on whether stripping the Supreme Court of its full authority to hear an issue is even constitutional, there is a plausible legal argument supporting such proposals. The Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Thus, because lower federal courts are creations of Congress, federal lawmakers have the power to define the scope of these courts’ power, and a bill stripping lower federal courts of their authority to decide a question would most likely be constitutional.

Attacks on the Supreme Court’s jurisdiction are more controversial, but they also have a plausible basis in the Constitution’s text. According to Article III of the Constitution, in most cases, “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.” Proponents of jurisdiction-stripping claim that this power to make “exceptions” to the justices’ jurisdiction includes the power to eliminate their power to decide certain questions.

Congress actually did engage in jurisdiction stripping on at least one occasion, and the Supreme Court upheld its decision to do so. During Reconstruction, a military commander jailed a newspaper publisher accused of publishing “incendiary and libellous” articles. Though the publisher sought an order from the Supreme Court requiring his release, Congress stripped the justices of jurisdiction to hear the matter in March of 1868. That December, a unanimous Court held in Ex parte McCardle held that this jurisdiction stripping bill bound the Court....

So Mr. Millhiser wants to say here is the Congress should not use it's power (in "marriage equity" cases) to control the courts. But I wonder if he would have the same issue if a Democratic Congress would push through a measure to stop appeals of against Obamacare or the blatantly unconstitutional "executive amnesty"?

One of the great issues since the Progressive Era started in the early 1900s is the ceding, by Congress (and to a lesser extent the President) their their legislating powers to the bureaucracy and the courts. Agencies such as the EPA, OSHA and FCC issues regulations with the force and penalty of law and the people have no input. Conveniently gives the members of the congress an excuse that they are not at fault for the EPA shutting down coal fired plants based on fiction such as "global climate change" (I think that's the current term for it) and gives them time to concentrate on the important things. Such as hearings on if baseball players shot themselves in the ass with steroids.

The process of reestablishing the republic will be hard and long, but one of the first steps will be to exert Congressional control over the courts and the bureaucracy. The EPA, OSHA, etc should not be able to issue regulations without the approval of a majority of the congress. And the courts needs to "...defer to the legislature where the Constitution is silent.", in the wise words of Robert Bork. And maybe the members of that body will spend more time actually attending to the people's business, as opposed to be content to a government on autopilot.

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