OY, GEVALT--MORE LAME CONGRESS V. COURTS: Eugene Volokh

[That's my title, though, not his. --Eve]

Is Rep. Istook trying to overrule Marbury v. Madison?

Rep. Istook (R-Okla.), joined by 34 other Representatives, has proposed the following bill, HR 4892:
(a) IN GENERAL- Marriage in the United States shall consist only of the union of a man and a woman.
(b) JURISDICTION-
(1) U.S. SUPREME COURT- The Supreme Court of the United States shall have original jurisdiction to hear and determine a claim arising under this section.
(2) OTHER COURTS- Except as provided in paragraph (1), no Federal or State court shall have jurisdiction to hear or determine a claim arising under this section.

But how can the Supreme Court be given "original jurisdiction" to hear these cases? Article III, section 2 provides that the Court shall have original jurisdiction only in "Cases affecting Ambassadors, other public Ministers and Consults, and those in which a State shall be Party." The last category covers only (here I'm merging article III, section 2 and the Eleventh Amendment) "Controversies between two or more States," and where a State sues citizens of another State or citizens of a foreign country. It's hard to imagine how a "claim arising under" the Istook bill would practically fit into any of these jurisdictional headings.

So the bill must be an attempt to add to the Court's original jurisdiction--but that's a direct violation of Marbury v. Madison itself. Marbury's broad holding is that courts have the power and duty to refuse to enforce unconstitutional laws--but its narrower holding is that a statute purporting to give the U.S. Supreme Court original jurisdiction over suits not explicitly mentioned in the Constitution's Original Jurisdiction Clause is unconstitutional. ...

Of course, there's also the question of what the law is trying to do. If "claim arising" means "legal right or constraint arising," then the law won't have any effect on any normal federal or state litigation, since subsection (b) would take away what subsection (a) creates: Subsection (a) might be saying to courts "don't recognize same-sex marriages," but subsection (b) would be saying "but you don't have the jurisdiction to hear a claim arising under subsection (a)." So if such a law existed at the time of the Massachusetts Goodridge litigation, and Massachusetts officials said "Stop! Under subsection (a), we can't recognize same-sex marriage," the Massachusetts Supreme Judicial Court would presumably have just said "Well, but under subsection (b) we lack the jurisdiction to hear your subsection (a), so the Istook law will have no effect on our decision." ...

If this sounds confusing, I think that's just because the statute is so awfully drafted. Or am I missing something?

more

posted by Eve at 11:57 PM VOTE

0 Comments:

Post a Comment

<< Home