In 2004, the U.S. Supreme Court decided a significant case that raised immediate concerns among several members of Congress. This case, Elk Grove Unified School District v. Newdow (2004), addressed whether the words āunder Godā in the pledge of allegiance were constitutionally permissible under the First Amendment. The Ninth Circuit Court of Appeals had previously ruled that forcing school children to recite these words did in fact violate the Establishment Clause of the First Amendment. The Supreme Court, however, ultimately held that the plaintiff lacked prudential standing to assert the constitutional rights of his child, whom he had joint physical custody, but not actual legal custody. This decision effectively dodged the underlying question of whether the words in the pledge of allegiance were in fact constitutional.
Members of Congress immediately voiced concern. Given that the Court did not fully address the First Amendment claims, a new case could arise involving similar facts; this time being brought by a proper plaintiff having actual standing. In response, H.R. 2389, known as āthe Pledge Protection Act of 2005,ā was introduced in the House of Representatives. Relevant portions of the Act provide that:
(a) Except as provided in subsection (b), no court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation.
This type of provision is commonly referred to as either a jurisdiction stripping, or court curbing bill, as it would eliminate the Courtās ability to hear disputes involving the Pledge of Allegiance. These types of bills are extremely divisive, especially from a separation of powers perspective, as it involves an attempt by one branch of government to prohibit another from exercising its discretion in a particular policy area. However, within our constitutional structure, Congress is permitted to enact legislation that alters the appellate jurisdiction of the Court. This immense power has been utilized several times in the past, but has mostly been seen as a threat or shot across the bow by Congress, to encourage the Court to rule in a particular way. From a separation of powers perspective, such actions raise concern because they would place limits upon a branch of government that was purposefully designed to be insulated from public pressures, and one that would act as a check against elected and potentially tyrannous majorities.
With regard to the Pledge Protection Act, several constitutional scholars were concerned with its language, and its potential impact on separation of powers, which is displayed in a letter from Robert D. Evans of the Government Affairs Office of the American Bar Association to James Sensenbrenner (R-WI), who was acting chair of the House Judiciary Committee. This letter, dated June 6, 2006, argued that
As a matter of policy, Congress should not jettison our foundational principles because of current dissatisfaction with a controversial decision of the Supreme Court or lower federal courts by permanently stripping the jurisdiction of the federal courts to hear certain categories of cases. Rather than strengthening its legislative role, Congress, by pressing its own checking power to the extreme, imperils the entire system of separated powers.
In spite of such dire warnings, the House Judiciary Committee reported the bill to the floor, where it was subsequently passed. The Senate did not follow suit. Taking note of the potential long term ramifications of such a proposal, the bill ultimately died within the Senate Judiciary Committee.
This interaction displays the complex nature of the legislative process as it pertains to the judiciary, and involves important aspects of separation of powers and bicameralism. The differences between the chambers and the outcome associated with each in this example indicate that there may be different motivations between the House and Senate in not only passing legislation, but in how the chambers individually approach their relationship with the judicial branch. This book examines the relationship between each chamber of Congress and the judiciary, but will incorporate additional aspects that may help account for the overall inter-branch relationship.
1.1 Research Questions
This book addresses four primary research questions pertaining to separation of powers. As indicated in the previous section, the first question involves Congressional constraint, and examines the motivation behind the House and Senate in attempting to control the federal judiciary through court curbing legislation. This book thus seeks to answer the questions why and how do the House and Senate differ in their court curbing efforts? It should be noted that as will be addressed in Chapter 2, the analysis in this book is broader than previous approaches, as the definition of court curbing is more expansive, and also utilizes bills reported out from the judiciary committee as the unit of analysis. In addition, several of the separation of powers variables used to test for the motivations behind court curbing in this analysis have yet to be used in other similar analyses.
The second research question involves administrative court curbing, which describe attempts by either the House or the Senate to insulate the executive branch from judicial oversight. Why would the House and Senate prevent the Court from engaging in judicial review of administrative actions? In order to address this question, a similar approach will be used as seen with general court curbing. Bills that were reported out of either judiciary committee are used, and tested with the separation of powers variables.
Unlike the hostile legislative activity noted above, the third research question involves judicial structuring, and seeks to answer under what conditions the House and Senate decide to expand and structure the federal judiciary. While other scholars have examined this issue (Bond 1980; De Figueiredo and Tiller 1996; De Figueiredo et al. 2000), they have not used reported measures, or incorporated many of the separation of powers variables presented in this book, which may help further explain the relationship between Congress and the federal judiciary.
Finally, this book examines judicial responses in the inter-branch relationship. Two separate responses are examined as this book will analyze why the Court chooses to engage in these types of behavior. The first of these involves the primary institutional weapon that the courts have at their disposal, which is judicial review and enables the Court to overrule Congressional actions. Similar to court curbing and court structuring legislation, it is believed that there are separation of powers explanations for why the Court may engage in this behavior. However, another judicial tool that the courts can utilize is justiciability, which generally describes the ability of the Court to hear a case. Through several judicial doctrines, such as standing or political questions, the Court can dodge the merits of a dispute. This is similar to the results reached in Newdow as presented in the introduction. Justiciability is included in this analysis to determine what, if any, effects separation of powers has on the Courtās decision to invoke these doctrines.
1.2 Nagel and Separation of Powers Variables
In order to adequately examine the research questions, some background is required regarding separation of powers. One of the best examples of separation of powers involves Nagelās (1965) seminal work on court curbing. While his analysis and findings are limited to the court curbing context, it is extremely important for this study as it presents the likely variables that affect the relationship between Congress and the Courts. However, many of his theories have yet to be incorporated into modern separation of powers studies. This book seeks to fill this gap by presenting and examining much of Nagelās original ideas. In order to do so, relevant findings from Nagel will be presented below, as well as a brief account of other modern works that have examined similar issues.
The first concerns judicial review, in which Nagel finds that the intensity of it may be a ādeterminant of the introduction of Court-curbing billsā (1965, 929). This finding intuitively makes sense, as one would anticipate that actual hostile actions from one branch may elicit a response by another. Thus, Congress will be more prone to engage in court curbing legislation when the Court is attacking it through judicial review, and vice versa. Based on this...