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Saturday, January 07, 2017


They want to rule, Part Deux

by Tom Sullivan


Weren't we just here earlier this week? They don't want to govern. They want to rule. I guess this got lost in the Republicans' ethics office shuffle.

A few days after a Republican legislator filed a bill in the Florida House of Representatives "... urging Congress to propose to the states an amendment to the United States Constitution that allows Congress to deem a law that has been declared void by certain federal courts active and operational," in the U.S. House Rep. Steve King (R-IA) decreed:

Obamacare should be ripped out by the roots and thus, I have introduced this legislation in conjunction with my repeal bill in an effort to look ahead and bar the Supreme Court from citing Obamacare in forthcoming decisions as binding precedent.
Yup. That'll fix 'em. Now that GOP has total control, all that legal-precedent-separation-of-powers stuff seems — how did Alberto Gonzales put it? — "quaint." And the Geneva Conventions aren't the U.S. Constitution dictated by God himself to our sainted Founders. Anyway, those who have been watching the "newly insane state of North Carolina" since 2013 know where the republic under Republicans is headed.

The gist of King's bill reads as follows:
Under Article 3, Section 2, which allows Congress to provide exceptions and regulations for Supreme Court consideration of cases and controversies, the following cases are barred from citation for the purpose of precedence in all future cases after enactment: Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2573, 183 L. Ed. 2d 450 (2012) and King v. Burwell, 135 S. Ct. 2480, 2485, 192 L. Ed. 2d 483 (2015) and Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751, 2782, 189 L. Ed. 2d 675 (2014).
Tierney Sneed at Talking Points Memo writes:
The proposal had the health care law world "chuckling," according to Timothy Jost, a health law specialist at the Washington and Lee University.

"He obviously hasn't read these opinions," Jost said. He pointed to National Federation of Independent Businesses v. Sebelius, which Jost said "contained very strong statements about state rights;" King v. Burwell, which "included language in which the court basically limited deference to administrative agencies;" and Burwell v. Hobby Lobby, which "was all about religious liberty."

"These are three precedents that one would think Representative King would affirm very strongly," Jost said.
Eugene Volokh calls it "political theater," adding, "But it seems like pretty poor theater." Volokh writes that among other things,
The bill would also tell the Supreme Court how to decide its own cases, which I think would unconstitutionally violate the separation of powers. Congress can’t just overrule the Supreme Court’s constitutional decisions, such as National Federation of Independent Business (absent a constitutional amendment). It can’t tell courts how to decide cases (again, absent a change in the substantive law on which the case is based), see United States v. Klein (1871). It can’t strip a court decision of its preclusive effect on the parties, see Plaut v. Spendthrift Farm, Inc. (1994). Congress therefore likewise can’t try to limit the force of the Supreme Court’s precedents (and especially its constitutional precedents) by telling the courts not to cite those precedents. Article 3, section 2 lets Congress limit the Supreme Court’s jurisdiction to hear the cases — it doesn’t let Congress tell the court how to decide a case that the court has the jurisdiction to hear.
Not to mention that the Congress cannot prohibit the legal reasoning that went into settling those cases from being employed again in other ones.

Rick Hasen tells Law Newz:
Prof. Rick Hasen from the University of California-Irvine School of Law tells LawNewz.com that he “cannot imagine that such a bill is constitutional as it infringes on the powers of the judiciary.” By that he means, “It presents a classic separation of powers problem, telling another branch of government how to do its job.”

Hasen even questioned whether it was serious proposal, rather he expects “it did get Rep. King some attention, which was probably the point.”
If these guys crave attention and are going to act like Lionel Hutz, can we make them dress in bright, primary colors? And orange skin to match Dear Leader?
“Well, he’s had it in for me ever since I kinda ran over his dog… Well, replace the word ‘kinda’ with ‘repeatedly’ and the word ‘dog’ with ‘son.'”