SOUIX CITY, Iowa — U.S. Sen. Tex Cruz (R-Texas), so far the only announced GOP candidate for president, on Monday threatened to prod Congress to strip the federal courts of its jurisdiciton of marriage cases if the U.S. Supreme Court rules this summer in favor of marriage equality.
“Every one of us is concerned about the Supreme Court’s gay marriage decision likely coming in June,” he said. “The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.”
He reiterated his vow to press for a constitutional amendment that would clarify the power of state legislatures to define marriage as the union of one man and one woman. If the high court does legalize gay marriage nationwide, he added, he would prod Congress to strip federal courts of jurisdiction over the issue, a rarely invoked legislative tool.
“If the court tries to do this it will be rampant judicial activism. It will be lawlessness, it will be fundamentally illegitimate,” he said.
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Think Progress notes that while court-stripping proposals are extraordinarily rare, legal scholars disagree on whether stripping the Supreme Court of its full authority to hear an issue is even constitutional, however there is a plausible legal argument supporting such proposals.
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Because lower federal courts are creations of Congress, federal lawmakers have the power to define the scope of these courts’ power, and a bill stripping lower federal courts of their authority to decide a question would most likely be constitutional.
Attacks on the Supreme Court’s jurisdiction are more controversial, but they also have a plausible basis in the Constitution’s text. According to Article III of the Constitution, in most cases, “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.”
Proponents of jurisdiction-stripping claim that this power to make “exceptions” to the justices’ jurisdiction includes the power to eliminate their power to decide certain questions.
Cruz’s proposal for a constitutional amendment leaving the issue to state legislatures would also ensure a patchwork, with bans in some states and legalized same-sex marriage in others.