Run it up the flagpole

The House Judiciary Committee has reported out HR 2028, a bill which would bar federal courts from hearing any challenges to the Pledge of Allegiance on First Amendment grounds.

This bit of petulant inanity, an example of a growing trend of special-pleading attempts to put various topics beyond the reach of federal courts (one previous attempt wanted to ban courts from hearing challenges to displays of the ten commandments in courthouses), has 227 cosponsors, more than enough to obtain passage on the floor.

If such a law actually passes, it certainly will be subjected to a challenge on the grounds that it violates well-established principles of separation of powers. The argument for constitutionality, I imagine, would revolve around the fact that the Constitution establishes the Supreme Court plus "such inferior courts as the Congress may from time to time ordain and establish." (Article III, Section 1.) Thus, the argument would go, those inferior courts are creations of Congress and thus subject to regulation by Congress.

That smooth argument is a dangerous one, however, because accepting it would enable Congress to put any of its acts beyond judicial review simply by declaring them to be so. One of the checks against overreaching government power we have come to rely on would disappear in a puff of rhetoric.

However, I do think the claim of constitutionality would fail. Not because of any devotion to a purity of doctrine, but because courts tend to be jealous of their prerogatives and unlikely to rule themselves out of the loop on a constitutional issue.

I just wonder how many of the sponsors know that and are just trying to get on the popular side of an issue - "I support the Pledge!" - and how many are actually hoping it will pass muster.