Patterico's Pontifications

7/11/2008

Apparently, there was a curious little provision tucked away into the FISA legislation that went unnoticed before the bill was signed yesterday by President Bush.

Filed under: Constitutional Law,Law — Aaron Worthing @ 2:24 am



Posted by WLS:

The provision was inserted late in the legislative process without any notice or debate, though no one seems to have had much of an objection to it.  

It seems that both the majority and minority leadership in the Senate, along with their counterparts in the House, is concerned about the current makeup of the Supreme Court — especially the unpredictable nature of Justice Kennedy – and the uncertainty as to what the future holds in store in terms of possible appointments by the next President.  To address this issue they chose to insert language into the FISA legislation which states that for the next five years, any litigation involving two or more states shall be submitted to Congress rather than the judiciary, and the outcome of the dispute will be determined by a vote of both houses, with the congressional delegations of each state involved in the dispute disqualified from voting.  The disposition of the dispute as established by the vote must also be agreed to by the President for it to be binding on the states involved. 

I suspect this might have something to do with anticipated future litigation between the states over the issue of recognizing gay marriages from California should the ballot initiative in November fail.  Rather than have this issue submitted to an unpredictable Supreme Court, both parties would rather settle the matter themselves in the House and Senate.  

Interesting.

 

Clarification:  This is a satirical post.  It raises the same issue as that involved in the argument about whether FISA can work to strip or condition the Executive’s commander in chief power under Article II, and whether the President is obligated to respect and abide by a statute which is contrary to a specific Constitutional provision.  

FISA can no more curtail or condition the President’s role as commander in chief than the Congressa nd President can divest the Supreme Court of original jurisdiction by statute as suggested by this post.  

Yet there are those who continue to insist that the President “broke the law” by not going to the FISC to obtain an warrant to do that which Art. II gives him the power to do without the consent or cooperation of Congress or the Court.

 

38 Responses to “Apparently, there was a curious little provision tucked away into the FISA legislation that went unnoticed before the bill was signed yesterday by President Bush.”

  1. Is this some kind of July Fool’s Day joke? Attempting to strip the Supreme Court of its original jurisdiction over cases to which a state is a party is a blatant violation of Article III, Sec. 2.

    Xrlq (62cad4)

  2. That Congress found this necessary demonstrates the breadth of the Supreme Court’s overstep in recent rulings.

    Paul (ae2fbe)

  3. 7lrq – Congress cannot be constrained by an antiquated document like the Constitution.

    JD (5f0e11)

  4. I hope this is a joke, ha: in any event, you certainly sent a bunch of people racing to actually read the text they voted on.

    Marc (59cd92)

  5. What Xrlq said but … maybe it’s over the Tennessee-Georgia border dispute. 😉

    nk (6a0113)

  6. Attempting to strip the Supreme Court of its original jurisdiction over cases to which a state is a party is a blatant violation of Article III, Sec. 2.

    Well, the Supremes sure didn’t feel limited by Congress’ Constitutional power to remove their jurisdiction over unlawful combatants.

    Rob Crawford (6c262f)

  7. they chose to insert language into the FISA legislation which states that for the next five years, any litigation involving two or more states shall be submitted to Congress rather than the judiciary, and the outcome of the dispute will be determined by a vote of both houses, with the congressional delegations of each state involved in the dispute disqualified from voting. The disposition of the dispute as established by the vote must also be agreed to by the President for it to be binding on the states involved.

    Wouldn’t the Supreme Court simply rule this provision unconstitutional, in order to reassert its authority?

    aunursa (09c81f)

  8. Wouldn’t the Supreme Court simply rule this provision unconstitutional, in order to reassert its authority?

    Comment by aunursa — 7/11/2008 @ 6:02 am

    Would that scrap the entire bill?

    j curtis (c84b9e)

  9. I always understood that Congress had the power to remove certain things from the purview of the Supreme Court. (I can’t remember what that’s called.) But this is an amazing step that could have much wider implications than even just the gay marriage debate. Please tell me this is a joke.

    Actually, I can’t figure out if this is a good thing or a bad thing. I guess that depends on who runs both houses of Congress and the Presidency. (gulp!) Can somebody provide a link to this text in the law?

    Don (928103)

  10. “I always understood that Congress had the power to remove certain things from the purview of the Supreme Court. (I can’t remember what that’s called.)”

    They do for certain appellate jurisdiction things. Original jurisdiction is another matter.

    Congress is probably totally hosed on this. If I had to try and defend it, though, I’d suggest that the bill should be read as though it were a binding arbitration provision under the FAA – here, the parties (the various states, collectively expressed through Congress’ will), have agreed that their dispute will be heard in a venue other than a court.

    I think that would be the only way to thread the needle- Congress isn’t attempting to abrogate any Supreme Court jurisdiction for anything other than its own constitutent entities (differentiating it from, say, stripping power of the Court to review any old litigant’s claims).

    Would that lose? Oh most definitely. Is it at least plausible enough to avoid sanctions for making the argument? I think so.

    The Angry Clam (085c88)

  11. One more signpost on the highway to hell. Next we will hear of a presidential candidate who wants to raise his own force that is equal in power to our current military. Oops….

    Ray (8cfb7a)

  12. Back in college, we used to joke that professors only read the first and last pages of term papers anyway, and it was proven by a student that no one ever knew but supposedly their friends knew about it who included the sentence, “Mary had a little lamb,” in the middle of a term paper on some subject completely unrelated to fairy tales of nursery rhymes.

    Perhaps this was the equivalent of “Mary had a little lamb” inserted into the bill.

    Dana R Pico (c36902)

  13. I guess that depends on who runs both houses of Congress and the Presidency.

    Not necessarily. If the States are voting as a single entity, that negates California’s overwhelming numerical advantage by limiting their House votes (53 of them) down to a single collective vote.

    If this is indeed about same-sex marriage, then I must point out that there are more red States than blue, and 38 States have already passed laws that define marriage as one-man/one-woman.

    However, while Congress does have some authority to limit the SCOTUS (Article III, Section 2, Paragraph 2, Subparagraph 2: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”), it has none in those cases where SCOTUS has original jurisdiction (Ibid, subparagraph 1: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”)

    Drumwaster (5ccf59)

  14. Article III, section 2, para 2

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    Recall that the Full Faith and Credit clause caused the collapse of the delicate balance Congress had worked out between Slave and Free States, making the Civil War all but unavoidable.

    Thanks to the Massachusetts Supreme Court’s pushing gay marriage, a lot of the States now have amended their constitutions to define marriage in the traditional way. Even liberal States. By solid majorities.

    LarryD (feb78b)

  15. Sure, but what if Georgia and Tennessee get into a shooting war over the Tennessee River? Does Congress have to wait for the Supreme Court before it steps in? Or does it declare war on both states? 😉

    nk (6a0113)

  16. In any event, I don’t see why Massachusetts would be suing New York to have a same-sex marriage recognized. It would be the couple itself or one of them if they were now being divorced. There are already cases like the later.

    States sue each other over such things as sales tax and child support collection, drivers’s license information and, dare I say it, water rights. Stuff like that.

    nk (6a0113)

  17. Unconstitutional?

    But its the law — it was passed by both houses of Congress and signed by the President. The Court is not above the law.

    WLS (02df99)

  18. Huh? If the fact that a law was passed by both houses and signed into law by the President were enough to make it constitutional, why bother with constitutional review at all?

    Xrlq (b71926)

  19. Xrlq — so you agree, the Supreme Court is above he law. They can simply disregard the will of Congress and the President because they disagree with it.

    WLS (02df99)

  20. This is just a followup of Peeeloshi’s consolidation of power in the congress. She doesn’t want members of congress to be able to talk (web sites) to their voters without her approval. Congress has been running full bore since Jan 06 to take the constitutional power given to the POTUS and now the SCOTUS and put them under her thumb. Can anyone say putting ‘communism on the fast track’. This woman is insane and the democrats in congress are scared either they or they’re families will disappear if they oppose her.

    Scrapiron (d671ab)

  21. Xrlq — so you agree, the Supreme Court is above he law.

    No. Just because I don’t share your apparent view that Congress and the President are above the law – in this case, the U.S. Constitution – that doesn’t mean I think the Supreme Court is, either. If Congress doesn’t want the Supreme Court to have original jurisdiction over disputes between the states, then Congress’s sole recourse is to amend the Constitution, not to casually ignore it.

    Xrlq (b71926)

  22. Or, to put it another way, this kind of law must be passed by three-fourths of both houses of Congress and *signed* by 38 states.

    nk (6a0113)

  23. This is a bit odd, I can’t figure out what kind of dispute is being contemplated here, as others have pointed out recognition of same-sex marriage does not look like the real purpose.

    SPQR (26be8b)

  24. I wish Levi would weigh in here and explain to everyone that when a law is passed by Congress and signed by the President, it is presumed to be Constitutional and everyone is required to comply.

    WLS (02df99)

  25. Please provide the appropriate section, page number, citation or whatever location in the FISA bill that includes this provision.

    phaedrus (4d4e04)

  26. Or, to put it another way, this kind of law must be passed by three-fourths of both houses of Congress and *signed* by 38 states.

    I think you might have gotten the percentages wrong somewhere…

    The majorities in Congress only needs to be 2/3d, and the result must be ratified by a simple majority vote in 38 of the State Legislatures (3/4 of the current total) (Article V).

    I’d love to see Jay Leno do an episode of “Jaywalking” where he asks “How many Amendments to the Constitution have there been?”

    Drumwaster (5ccf59)

  27. I don’t see the language in the bill.
    http://www.govtrack.us/congress/billtext.xpd?bill=h110-6304

    Peter (c0b4fb)

  28. This is one of the most confusing posts I’ve ever seen on this blog. Would WLS provide some clarity as to whether this is intended as some kind of satire, or in earnest? If the former, I guess, like Xrlq, that I just don’t get the joke. If the latter, a link to the text of the relevant language or, at least the source of the claim (that Congress included this provision) would be in order, because this would be one of the more procedurally and constitutionally problematic provisions enacted by Congress in recent memory.

    NYC J.D. (b06dde)

  29. What kind of nonsense is this? What’s the language in the act? A quote or a link, please. This kind of thing is so far off the reservation constitutionally and statutorily that it would be big news if it were real. Volokh has nothing on it. Patterico, why are you letting guest bloggers post unsourced garbage?

    EDM (a24ff8)

  30. I mean, let’s be clear – the description of this supposed provision in the post reads like 9/11 troof stuff, or the North American Union truck-lane single-currency conspiracy theory. I expect better from this blog.

    EDM (a24ff8)

  31. Drumwaster correctly states that it’s only two-thirds of both houses.

    nk (6a0113)

  32. Gee, its not like Congress hasn’t tried to pass stuff without publishing it before … oh, it has?

    SPQR (26be8b)

  33. Satire? Maybe so intended, but I see nothing unrealistic about Congress doing such a thing.

    htom (412a17)

  34. *eeeek*

    Don’ DO that! Ya had me spooked that the balance had been fatally wounded!

    Foxfier (15ac79)

  35. I have always wondered why someone doesn’t challenge the whole FISA environment anyhow.

    You have the legislative branch demanding review by the judicial branch of a clear Article II power of the executive branch.

    Seems to me to be a clear violation of the separation of powers here.

    Now if the executive does something wrong then impeachment or a court challenge would work but the continuous supervision issue is where it comes apart.

    Imagine the executive telling the judicial to review each law when it comes out of committee before it can be voted on.

    daytrader (ea6549)

  36. Remember all the screaming and shouting when Jefferson’s office was searched with a warrant by the FBI.

    Big sign they named streets after.

    ONE WAY

    daytrader (ea6549)

  37. I don’t see the language in the bill.
    .

    Shhh. You’ll harsh the buzz.

    cboldt (3d73dd)


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