ACLU Disappointed with House Passage of 'Court Stripping' Measure, Calls on Senate to Uphold System of Checks and Balances

September 23, 2004 12:00 am

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WASHINGTON – The American Civil Liberties Union today expressed disappointment as the House of Representatives approved a controversial court stripping measure. The legislation would strip jurisdiction from all federal courts — including the Supreme Court — over any constitutional claim involving the Pledge of Allegiance or it’s recitation, and is the latest of several similar court stripping measures.

“With this vote, the House has said that the federal judiciary should not be a co-equal branch of the government,” said Terri Ann Schroeder, an ACLU Legislative Analyst. “The role of an independent federal judiciary is crucial in our time-honored system of checks and balances.

“The Senate should reject this unwise measure,” Schroeder added.

The bill, H.R.2028, the “Pledge Protection Act of 2003,” bars all federal courts, including the Supreme Court, from reviewing cases involving the Pledge of Allegiance. If enacted, the measure would effectively close federal court house doors to religious minorities, parents, schoolchildren and others who seek nothing more than to have their religious and free speech claims heard before the courts most uniquely suited to entertain such claims. It was adopted by the House on a vote of 247 to 173.

While the supporters of the bill pushed it as an appropriate response to recent court decisions that they dislike concerning the words “under God” in the Pledge, the ACLU warned that the impact of the bill would be far-reaching. All federal courts would be barred from considering ALL constitutional claims related to the pledge. Just last month, the Third Circuit held that a Pennsylvania law mandating recitation of the Pledge violated the Constitution because it violated the free speech rights of the students – such cases could not be heard if H.R.2028 were to become law.

The ACLU also pointed to a growing trend by some members of Congress to push similar court stripping measures. Similar measures under consideration consider the ability of the courts to review cases considering the legal definition of marriage, and the ability of courts to review the public display of the Ten Commandments.

Passage of any of these measures, the ACLU said, would establish a dangerous precedent for Congress to respond to court decisions with which they disagree. Furthermore, the denial of access to the federal courts would force plaintiffs to raise federal claims and concerns in state courts, which may lack expertise and independent safeguards provided to federal judges under Article III of the Constitution

“Court stripping measures strike at the very purpose the founding fathers created the federal courts,” Schroeder added. “They saw a need for neutral arbiter that would be the final authority in determining the constitutionality of the laws that Congress passed. Today the House has said that the American people do not deserve an independent judiciary.”

The ACLU’s letter urging opposition to H.R. 2028 is available at:

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