January 10, 2017

On the first day of the 115th Congress, U.S. Rep. Steve King, R-Kiron, jump-started his legislative agenda by introducing a bushel basket of bills — bills to repeal 100 percent of Obamacare, bills to impose stricter laws on immigration, and a bill condemning a two-state solution in Israel.

King has always been enthusiastic about his legislative goals, and with the expected backing from a solid Republican Congress and from President Trump, he certainly has good reason to be enthusiastic and optimistic with the new Congress.

Along with those bills, King introduced H.R. 177, a bill to prohibit the Supreme Court from citing as precedent three specific cases relating to Obamacare that the Supreme Court has recently issued.

These three cases — known familiarly as the Sebelius case, the Hobby Lobby case and the King v Burwell case — all affirmed key elements of the Obamacare legislation.

In his press release accompanying the bill’s introduction, King explained that he was working to “restore Article I authority and the Rule of Law by ensuring Congress is the only entity of our government making or changing laws.”

Article I, of course, is the first and foremost provision of the U.S. Constitution, establishing Congress as one of the three tripods of government, along with Article II for the executive branch and Article III for the judiciary branch.

Legally, that proposed legislation is directly contrary to the “Separation of Powers” provision that is the bedrock of our United States Constitution.

Just as the Congress reveres its standing under Article I of the Constitution, so too does the Supreme Court revere its standing under Article III of the Constitution. The Supreme Court’s position is strengthened by Article VI of the Constitution which declares that the laws and rulings of the United States shall be the Supreme Law of the Land. Further, under Article III, the judicial power to determine the “Supreme Law of the Land” is vested in one Supreme Court.  

If the legal theory is not convincing, the practical consequences should make it clear.

If that law were passed, and an issue based on the banned cases comes before the Supreme Court, who would decide whether the Steve King law would violate the Separation of Powers clause? Of course, it would be the Supreme Court, and I don’t think there is anyone who would expect the Supreme Court of the United States to defer its authority to this new legislation.

However, giving King his due, his proposed legislation purports to arise from language in Article I, Section 2, of the U.S. Constitution which empowers Congress to restrict the appellate jurisdiction by “such exceptions, and under such regulations as the Congress shall make.”

In essence, King is saying that Congress can use this phrase to take away the Supreme Court’s appellate jurisdiction over cases that relate to Obamacare, at least as to those three cases cited in his proposed legislation.

Again, giving King his due, that constitutional phrase over the years has generated a lot of intellectual debate in the legal journals and law reviews. There has even been some litigation going back to Chief Justice John Marshall’s time that involved cases in which Congress had attempted to restrict the appellate jurisdiction of the United States Supreme Court.

However, in none of those cases was it ever held that Congress had the power to deny or restrict the essential function and authority of the United States Supreme Court, as King’s proposed legislation would do.

I recognize that the introduction of this bill does send a message to the Supreme Court that Congress is unhappy with those decisions.

But the practical effect that message will be about the same practical effect generated by President Obama when he expressed his unhappiness to the Supreme Court about the Citizens United decision during his State of the Union address in 2010.

So, if Congressman Steve King wants to change the checks and balances inherent in the United States Constitution by restricting the authority of the Supreme Court, I would recommend that he propose a constitutional amendment to do so.