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August 29th, 2010

Is Court-Stripping The Solution?

By Nathan Tucker

Some commentators in Iowa have argued that adding a marriage amendment to the Iowa constitution is unnecessary.  Rather, they maintain that the legislature has the authority to remove from the courts any jurisdiction to review the constitutionality of a statute.  As a result, proponents believe that there is no need to amend the Iowa Constitution when the legislature can simply thank the Supreme Court for their opinion, but continue to enforce the current law without recourse to judicial review.

Though the idea of court-stripping has only recently begun to gain traction in Iowa, it is an old idea that was first used in 1801 when the newly-elected Jeffersonian Congress, rightly afraid that the Supreme Court would hold their abolishment of federal judgeships unconstitutional, removed the Court’s jurisdiction to review their actions.  At the time, the courts never ruled on the constitutionality of court-stripping because it was never litigated.

As support for their argument, proponents of court-stripping cite Article III, Section 2, Clause 2 of the U.S. Constitution, which provides that 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.”  Iowa’s Constitution contains somewhat similar language in Sections 4 and 6 of Article 5.

At the federal level, court-stripping has become a favorite “magic wand” by conservatives in their effort to check activist judges who do not adhere to the Constitution as it was originally understood.  Each year, court-stripping bills are unsuccessfully introduced in Congress to remove the jurisdiction of federal courts to hear challenges to the federal Defense of Marriage Act, the Pledge of Allegiance, abortion regulations, etc.

But as much as we may desire such an easy solution, the Exemptions Clause (the court-stripping provision) was never intended by the Founders as a tool by which Congress could combat judicial tyranny.  There is not a single Founder at the time the Constitution was drafted and ratified who proposed any other check to reign in the judiciary than impeachment and the amendment process.  Never once did they suggest any recourse to the Exemptions Clause, an executive order vetoing court decisions, or nullification.

Rather, the Exemption Clause only gave Congress the authority to regulate the appellate jurisdiction of one court—the Supreme Court.  By its own terms, the Clause only refers to the “supreme Court” and therefore does not give Congress the authority to regulate the jurisdiction of lower federal courts or state courts.  Nor do state legislatures have the authority to strip federal courts of jurisdiction to hear challenges to their state laws.

Additionally, early drafts of the Clause at the Constitutional Convention illustrate that it was only intended to provide Congress with the power to distribute appellate review between the Supreme Court and such lower federal courts that Congress may establish.  These preliminary versions stated that the Supreme Court shall have such appellate review “with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction above mentioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time.”  (emphasis original)

Alexander Hamilton, writing in Federalist No. 81, explained that the degree of the Supreme Court’s review of lower court decisions will necessarily vary as to the type of case (criminal, civil, admiralty, etc.).  Because of this, it was impossible to draft a single standard into the Constitution and, therefore, the Constitutional Convention opted to leave it to “the national legislature [to] prescribe [such regulations so as to] enable the government to modify it in such a manner as will best answer the ends of public justice and security.”

Apart from a historical analysis, the Exemptions Clause cannot be read to allow Congress to exempt itself from judicial review, for doing so would make it a law unto itself.  While conservatives desire such a power for use against activist judges, liberals would be all too eager to use it to insulate their legislative agendas from constitutional scrutiny.

Though conservatives relish the idea of stripping the courts of their authority to strike down abortion regulations, the defense of marriage act (DOMA), and the Pledge of Allegiance, they are naturally outraged when the Democrats contemplate doing the same with ObamaCare, cap and trade, bailout programs, oil drilling moratoriums, the Fairness Doctrine, Card Check, etc.

Treating the Exemption Clause in this manner would give Congress a “get out of jail free” card whereby it could commit constitutional violations without fear of being caught.  Furthermore, there would be no need for an amendment process to the Constitution, nor even a written Constitution itself, because change could occur by simple legislative fiat insulated from judicial review.

For instance, though the current judicial nomination process is established by the state constitution, if court stripping were permissible the General Assembly could simply change the process by statute and remove from the courts any power to review their actions.  Certainly the Exemptions Clause was never understood to provide the legislature with this type of an end run around the Constitution.

But in Iowa there is also a very real practical problem with this magic wand, for even if the General Assembly stripped the courts of their authority to review the constitutionality of DOMA, it will still be up to each individual county recorder, the officer charged with issuing marriage licenses, as to whether they will follow the Iowa Supreme Court’s ruling in Varnum v. Brien or the state’s stricken, but now non-reviewable, DOMA.

Because the legislature and governor have no authority to force them to obey DOMA, it will be up to the Iowa Attorney General to determine whether or not, in his or her opinion, the county recorders are following the law and, if they are not, to institute removal procedures against them.  Those procedures, however, bring the issue back before the courts, the very judges the legislature was trying to avoid in the first place.

A constitutionally dubious proposition such as court-stripping is not the solution to restoring traditional marriage in Iowa, only a constitutional amendment is.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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