- The Washington Times - Monday, July 28, 2003

The House took a rare swipe at two federal appeals court decisions last week, voting to stop enforcement of rulings that public schools may not recite the Pledge of Allegiance and that a courthouse may not post the Ten Commandments.

The U.S. Marshals Service would not be allowed to enforce those two decisions, under amendments that were passed as part of the House’s spending bill for the Commerce, Justice and State departments.

“When the legislative branch, that is the Congress, believes the judicial branch to be in error, the Congress may refuse to fund actions to enforce the court’s judgment by the executive branch agency that would execute those judgments,” said Rep. John Hostettler, Indiana Republican, who sponsored the amendments.

It’s the newest strategy for House Republicans, who have shown an increasing willingness to try to reel in what they see as judicial activism run amok.

Last week, House Majority Leader Tom DeLay, Texas Republican, along with Rep. Steve Chabot, Ohio Republican, and Rep. Lamar Smith, Texas Republican, announced a new working group to “once and for all reassert responsibility and authority of Congress, and remind the judiciary of who they are, as outlined in the Constitution,” Mr. DeLay said.

The Hostettler amendments weren’t part of the new group’s efforts, but Mr. Chabot said it was the type of thing they want to encourage.

“We aim to provide some checks and balances to the judiciary, who we feel are abusing their positions,” he said. “We think if we expose judicial abuses to some sunshine, that will result in fewer abuses.”

The first Hostettler amendment, which passed 307-119, prohibits enforcement of the 9th U.S. Circuit Court of Appeals’ ruling last summer on the Pledge. The second amendment, adopted 260-161, prohibits enforcement of the 11th Circuit’s fall ruling that the Alabama Supreme Court’s chief justice may not post the Ten Commandments at the state courthouse.

Mr. Hostettler is trying to find a senator to push for the provisions in the corresponding Senate bill. Mr. DeLay said House Republicans will push for the provisions in a final House-Senate compromise.

Congress has threatened to curb courts’ jurisdiction to hear some cases in the past, and often expresses displeasure with a decision by the president or an executive agency by defunding an action. But going after a court decision by defunding its enforcement is a new approach, said Barry Friedman, a law professor at New York University.

“It’s plainly an attack on what the courts have done, and should the Senate go along and the president, it would be judged as an attack on the courts,” he said.

The Justice Department opposed the Pledge of Allegiance amendment, arguing it already is appealing the decision to the Supreme Court and that any legislative action might complicate the case. But in a note to House appropriators, which Rep. Frank R. Wolf, Virginia Republican, read on the floor, the Justice Department did not say whether the approach would in fact prevent it from enforcing the law.

Rep. David R. Obey, Wisconsin Democrat, speaking on the House floor about the Ten Commandments amendment, said the legislation won’t do anything.

“Never has an amendment been offered that did less than this amendment does,” said Mr. Obey, the top Democrat on the Appropriations Committee. He added that because the Justice Department doesn’t actually enforce the decision, defunding its ability to enforce it has no effect.

“No matter what side one is on, on the question of the separation of church and state or the Ten Commandments or anything else, it does not matter how one votes, because this amendment does not do nothing to nobody,” he said.

Mr. Friedman also said the actual effect of the amendment, if it were signed into law, is questionable.

“My sense is the effectiveness of rulings like this doesn’t actually depend on the U.S. Marshals doing anything; it depends on other actors in society deciding to comply with a court ruling,” he said.

Because the decision itself would still stand, and those violating it would still be engaged in illegal action, it will be the superintendents, school boards and principals who really end up deciding whether the decision is followed, said Keith E. Whittington, professor of politics at Princeton.

He also said that while Congress can curb statutory authority, it is questionable whether Congress can go after a court decision on a constitutional matter — in these cases a question of the establishment of religion, which is prohibited by the First Amendment.

But Mr. Hostettler said he has researched the approach and believes it’s sound.

“Quite honestly, if the executive branch enforces these orders they will be in violation of federal law,” he said, arguing that the constitutional debates from 1787 show the Framers meant the Legislature to have wide latitude.

“The Constitution only requires that when a [Supreme Court] justice is appointed to the court we do not reduce their salary,” he said. “It doesn’t say anything about giving them a chair to sit in, or a pencil and paper to write their decisions.”