NOTE: This piece was originally published on Nov 10, 2014
Gutzman – Congress Can And SHOULD Put The Kibosh On Federal Courts Hearing Homosexual Marriage Cases
Mandeville, LA – Exclusive Transcript – “Yes, there is this one mechanism that the federal congress could use to address this problem but it almost certainly won’t. There is another way that the Congress can address the issue, and that’s by restricting federal courts’ jurisdiction, which they have done. This is sometimes called court-stripping legislation. Legislation has stripped federal courts of their power to hear particular classes of cases. Now, you might think they never actually do that, but they actually do do that.” Check out today’s transcript for the rest….
Begin Mike Church Show Transcript
Mike: Is there anything left then for the current Republican majorities in Congress to do about this runaway judiciary? We can be specific or not specific about DOMA or the marriages that we’re talking about. I just wanted to get that in before we moved to the next point.
Kevin Gutzman: Well, just over 200 years ago, Justice Samuel Chase was impeached for abusing his position as a Supreme Court justice by telling a fellow in Maryland: When I get to Virginia, I’m going to have the author of this book (and he waved a book by James Thomson Callender) be the subject of the investigation of a grand jury. I’m going to have him indicted. He’s going to be tried. He’s going to be convicted. I’m going to throw the book at him. Then, when Chase did get to Virginia, he actually empaneled a grand jury, essentially made it to indict Callender. He presided at the trial. He interrupted counsel. He wouldn’t allow witnesses to testify. He was so partisan that the jury’s verdict in the case was: The evidence you would let us hear indicates that we have to convict this guy. Then he did throw the book at him.
Ultimately he was impeached by the House of Representatives for his completely inappropriate, completely partisan conduct of the Callender trial and other behavior like that in other cases. The Senate, by the narrowest possible majority, voted not to remove “Justice” Chase from office. Since then, people on the federal courts have known that regardless how much they abuse their positions in this kind of partisan way — when it comes to the Supreme Court it means how much they use their judicial positions for legislative purposes — nothing is going to be done. Congress is not going to remove anybody from office for merely legislating as a judge.
Somebody like Anthony Kennedy can give, in the Casey case, entirely legislative rationales for judicial decision or judicial vote. He knows perfectly well that Congress won’t remove him from office. What should happen is, as Thomas Jefferson, then the president, said should have happened in the Chase trial was that people should be removed from office. The problem is that there’s virtually always going to be at least a one-third plus one portion of the Senate that favors your policy decision if you’re a Supreme Court justice, for example. You can basically count on being acquitted even if you’re impeached. Besides that, the House of Representatives, ever since the Chase case, has essentially conceded that it should not remove people from office for merely behaving that way.
Impeachment has come to be used against federal judges essentially only when they cheat on their taxes or they take bribes or otherwise act like criminals. I would argue that being a criminal on a federal court is actually not as bad an offense, especially cheating on your taxes or somehow committing a non-judicial crime, is not as bad an offense as deciding you like a policy and then declaring it’s required by the Constitution, even though the Constitution has nothing to say about it, has nothing to do with it, and the Tenth Amendment says that that means this question will be left to the states for local decision.
Yes, there is this one mechanism that the federal congress could use to address this problem but it almost certainly won’t. There is another way that the Congress can address the issue, and that’s by restricting federal courts’ jurisdiction, which they have done. This is sometimes called court-stripping legislation. Legislation has stripped federal courts of their power to hear particular classes of cases. Now, you might think they never actually do that, but they actually do do that.
For example, during the W administration, a Republican congress passed legislation that was signed by President Bush to remove from federal courts jurisdiction over habeas corpus appeals from people who were being held at Guantanamo Bay. They took away from federal courts the power to hear habeas cases initiated by people who were being held at Guantanamo Bay. Nobody thought there was anything unconstitutional about that. You know why? Because there wasn’t. It’s entirely up to Congress to decide what appellate jurisdiction the federal courts have. They decided that in this area they wouldn’t have jurisdiction over such cases. They could do the same thing in regard to marriage or abortion or whatever they want to. They can say: Henceforth, federal courts will not hear any appeals from state courts about abortion, marriage, raping little kids and what the punishment should be.
Mike: Vote for me and I will make it safe and legal for bigamists, polygamists, and incestuous people to marry. Who’s going to run on that platform?
Mike: Well, there may be a few.
Gutzman: Only federal courts would ever be able to make that kind of policy.
Mike: I just want to interject, Congressman Ron Paul has told pro-life groups for the last 15 years or so: Look, you’re being had by the Republican Party. We always have had the power to undo Roe v. Wade. All we have to do is pass a simple act in Congress that says federal courts can’t hear abortion cases. It’s pretty simple. When they had the Senate they could have done it, could have passed it. George W. Bush would have signed it. It would become law. Then if Kansas or Missouri or Louisiana or whatever wanted to have a waiting period, wanted to have an ultrasound requirement, then that’s the law. A state judge could strike it down, but no federal judge would have had access, correct?
Gutzman: That’s precisely correct. The federal courts, appellate jurisdiction is entirely up to Congress to decide. The Constitution names a few kinds of cases that have to originate in the Supreme Court. Therefore, I would argue once there is a Supreme Court, Congress cannot take those few kinds of jurisdictions away. Those are unimportant classes of cases like lawsuits between foreign ambassadors and the federal government, lawsuits between foreign ambassadors and a state, lawsuits between one state and another. There are only a few kinds of cases that the Supreme Court has original jurisdiction over. All the rest of federal courts’ decision-making power, not their decisions in particular kinds of cases, but their power to decide particular kinds of cases, that’s what jurisdiction is. All the rest of that is entirely up to Congress.
You and I have made this point clear before. People who are pro-life and think voting Republican is the way to get what they want are overlooking the fact that from 2001 to 2007, Republicans controlled the House, the Senate, and the presidency. They could at any moment, by majority votes in both houses and signature of their president, have removed from federal courts the power to hear appeals about abortion from state courts. They never did it. They’re going to be able to immediately pass this legislation out of Congress now. They could pass such a bill and have the president veto it if he wants to, sign it if he wants to, or allow it to go into effect. If he vetoes it, they could try to override the veto. I’ll bet you they’re not going to do it. If they elect a president in 2016, they’re not going to pass such a law then.
We have to conclude one of two things. Either the Republican Party isn’t really against abortion, or, on the other hand, maybe they are against abortion in their heart of hearts but more important to them than actually getting rid of abortion is making sure that evangelical voters continue to vote for them. The way to do that is to make abortion remain a live issue, which they can only do by not banning it.
Mike: Bingo! That’s it.
Gutzman: This area of incest, polygamy, homosexuality, all these things being called marriage by the federal courts, Congress could resolve that issue immediately by passing a law saying: From now on we’re not going to have any federal court jurisdiction over cases involving marriage in state governments. They won’t do that. I’ll be you 10:1 they’re not going to do that. We have to conclude that the reason is they want people who care about that to keep voting Republican. They know that if they actually solve the problem, people who care about that would not be likely to vote Republican. They’re going to keep that a live issue and keep saying: We’re really appalled. That’s what they’ve been doing with abortion since 1973.
Mike: The way they treat it and what they do and how they act towards it tells you what’s really going on here. I think Congressman Paul, bless his heart, was trying to communicate: Look, you evangelicals, God bless you for your opposition, your steadfast, unwavering opposition to abortion and your stance for life, but you’re being had by the party. The party could have, as you just pointed out and as I’ve pointed out — I pointed this out yesterday. Folks, these myriad of issues that we see that are arising and bubbling to the surface here — for example, another one that’s going to enter into the fray, beyond the homosexual marriage, beyond the incest, beyond the polygamy, beyond the bigamy, the next one that’s going to be inserted into this is going to be these so-called “death with dignity” acts.
You’re going to have people that are going to sue in one state and say: Washington State has a death with dignity act. I live in California. I want my state to have it. Since it’s constitutional in Washington State, it has to be constitutional in California. You have to allow a physician to prescribe the pill to me in the comfort of my home so that I can kill myself. Congress could right now step in and say: That’s not going to happen. The federal courts are not hearing any of these cases. We’re going to have to part company with Professor Gutzman in a minute, but I want him to be able to answer this question no original intent and design.
Folks, what you just heard basically is college-level PhD course on original, ratified intent of the U.S. Constitution. Let’s just move to after-studies. Now we’re studying for something beyond PhD here. Now we’re trying to become a Supreme Court justice. Article III of the Constitution and the way the Congress is supposed to apply it, Article III also does not say — I’ll let Kevin run with this because he wrote his thesis on this — does not say that there has to be any more than one Supreme Court with three justices on it. There don’t have to be any federal courts. Right or wrong?
Gutzman: Right. Article III says there will be a Supreme Court with a chief justice and “such inferior Courts as the Congress may from time to time ordain and establish.” My reading of that is that there has to be one federal court, the Supreme Court. There has to be two judges and one has to be the chief justice. Other than that, the rest of the federal court structure, we have just over 900 federal judges. Every state has at least one district court. In some states district courts have one judge and some of them have a dozen. In Texas they have four districts and several judges on each of those district courts. This is entirely at Congress’s discretion.
Of course, the issue here is not eliminating all these federal courts, although it could probably be done if the federal government were only legislating in constitutional areas. You wouldn’t have, for example, all the criminal law at the federal level, about 90 percent of which has nothing to do with constitutional authority of the federal government. Instead, all we’re talking about is actually having Congress define the jurisdiction of these courts. Again, jurisdiction means the areas in which the federal courts have power to make decisions. This is entirely at Congress’s discretion. If Congress wants to remove particular areas from the decision-making area of the federal courts, all it has to do is pass a law saying: From now on, federal courts don’t have decision-making authority in this area.
Again, this was done in the 2000s by a Republican Congress, signed into law by President George W. Bush in regard to habeas corpus suits brought by prisoners held at Guantanamo Bay. They know how to do this. It wasn’t controversial when they did it in the 2000s regarding habeas corpus. Nobody in the Republican Party said we can’t do this. The reason is, there’s no doubt that they can do it. There’s also no doubt that Congressman Paul was right. They could do it at any moment regarding abortion. They could do it regarding flag burning. They could do it regarding penalties for raping little kids. They could do it regarding “homosexual marriage.” They don’t do it. Why don’t they do it?
End Mike Church Show Transcript