- The Washington Times - Monday, September 20, 2004

House Republicans this week will take another swipe at a federal judiciary they say is overstepping its bounds, voting on legislation that would strip federal courts of their ability to hear cases challenging the phrase “under God” in the Pledge of Allegiance.

The House already voted this year to ban federal courts from hearing cases involving the 1996 Defense of Marriage Act, which stipulates that states can’t be forced to accept same-sex “marriages” from other states. That bill is unlikely to go anywhere in the Senate, but House Republicans are pushing back at courts again, this time with the pledge bill.

Democratic leaders call the bills part of an election-year ploy.

House Minority Leader Nancy Pelosi, California Democrat, denounced House Republican leaders for wasting time in effort to “make partisan political points” with legislation like the pledge bill.

“[T]he Republican leadership is more interested in using the scant remaining days on the House floor to make partisan political points, instead of progress for the American people,” she said last week, citing time spent on “another court-stripping bill,” as opposed to an energy bill, highway bill or measures to reduce health care costs.

The 9th U.S. Circuit Court of Appeals — which critics cite as the most liberal federal appeals court — ruled in 2002 that it is unconstitutional to lead schoolchildren in reciting the pledge with the phrase “under God,” which was added to the pledge by Congress in 1954.

The Supreme Court earlier this year reversed and remanded the 9th Circuit ruling, but did so on the grounds that the plaintiff lacked the legal standing to bring the case, and did not address the case on its merits.

The House pledge bill — sponsored by Rep. Todd Akin, Missouri Republican — would leave it up to each state to decide whether “under God” is acceptable, and would ban federal courts, including the Supreme Court, from ruling on the pledge.

“If different states come to different decisions regarding the constitutionality of the pledge, the effects of such decisions will be felt only within those states, and a few federal judges sitting hundreds of miles away from your state will not be able to rewrite a state’s pledge policy,” said House Judiciary Chairman F. James Sensenbrenner Jr., Wisconsin Republican.

His committee approved the bill Wednesday by a 17-10 vote along partisan lines.

Mr. Sensenbrenner defended the right of Congress to “check” the judiciary when it goes too far.

“A remedy to abuses by federal judges has long been understood to lie, among other places, in Congress’ authority to limit federal court jurisdiction,” he said, calling this, “an exercise of one of the very checks and balances provided for in the Constitution.”

Critics say Congress doesn’t have the right to impose such limits on the courts, simply because lawmakers dislike some court decisions.

“Stripping the federal courts of their ability to review laws violates the very notion of an independent judiciary,” said Terri Ann Schroeder, a legislative analyst with the American Civil Liberties Union. “Lawmakers should reject this fundamentally un-American measure.”

But for many Republicans, such legislation is increasingly viewed as a way to send a strong message to the judiciary branch.

On Sept. 13, the House Judiciary’s courts subcommittee held a hearing on yet another court-stripping bill, one that would bar federal courts, including the Supreme Court, from ruling on cases involving public officials who publicly acknowledge God.

The pledge bill will likely come to a House vote on Thursday, House Republican aides said.

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