Although in June, the U.S. Supreme Court dismissed a case challenging the “under God” phrase in the Pledge of Allegiance, it will no longer have jurisdiction to declare the phrase unconstitutional if a legislation approved by a House committee yesterday passes in the full House.
The House of Representatives Judiciary Committee voted, 17-10, in favor of a bill that would ban all federal courts, including the U.S. Supreme Court, from hearing or deciding cases "pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance … or its recitation."
The full House will begin debate on the measure next week on top of considering a federal constitutional amendment banning same-sex “marriage.”
Under the bill, H.R. 2028., sponsored by Representative Todd Akin (R-Mo.) alongside 224 co-sponsors, only state jurists will be able to decide on challenges to the Pledge.
Committee Chairman James Sensenbrenner (R-Wi.) said the amended legislation would “place final authority over a state’s pledge policy in the hands of the states themselves.”
Akin introduced the bill "[i]n order to protect the pledge from federal court decisions that would have the effect of invalidating the pledge across several states," said Sensenbrenner.
Democrats from the Judiciary committee say the bill violates the constitutional balance of powers between the judicial and legislative branches.
Republicans, which comprise the majority of the committee, disagree, citing Article III, Section II of the constitution, which gives Congress the authority to except many areas of federal law from judicial review.
"A remedy to abuses by federal judges has long been understood to lie, among other places, in Congress' authority to limit federal court jurisdiction," Sensenbrenner said.
Last month, the House passed H.R. 3313, which prevents federal courts from deciding on cases involving the Defense of Marriage Act, a law that exempts states from recognizing same-sex marriages performed in other states.
"Far from violating the separation of powers, legislation that leaves state courts with jurisdiction to decide certain classes of cases would be an exercise of one of the very 'checks and balances' provided for in the Constitution,” said Sensenbrenner.
"State courts are not second-class courts, and they are perfectly competent to decide federal constitutional cases,” he said.
Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, has told Akin, that he supports the bill and would push a Senate version if the House acted.