The House of Representatives has passed a bill which, if enacted, would remove the jurisdiction of the Federal courts to hear any challenge to the use of the phrase "under God" in the Pledge of Allegiance. A similar provision has been included in the Marriage Protection Act, which has also been passed by the House. Most people, including most lawyers, would immediately think that this would easily be found unconstitutional, but the analysis is not so easy. Article III, Section 2 of the Constitution, after providing for particular cases in which the Supreme Court has original jurisdiction, goes on to state that it shall have appellate jurisdiction in all other cases "before mentioned" - that is, within the previously-described judicial power - with the following qualifying clause:

. . . with such exceptions, and under such regulations as the Congress shall make.

A number of commentators, including Eugene Volokh and Marci Hamilton have outlined the several reasons that this is a foolish proposal, but whether it would be constitutional is a matter of debate. Some have argued that this provision, if passed, would still be unconstitutional, despite the language quoted above, but others are not so sure. (I would observe that most of the commentators who argue for its unconstitutionality have tended to simply disregard the language of Article III, Section 2 quoted above.)

This is not a theoretical issue. In a comment to a posting on the Legal Reader weblog site, I pointed out that the Congress has in fact exercised that power in the past, and its use of the power has been upheld:

It has been done before. In 1867, Congress passed a new law specifically intended to derail the pending appeal of one William McCardle, a newspaper editor who had been found guilty of publishing "inflammatory" articles during Reconstruction, and who had been denied habeas corpus under the Habeas Corpus Act of 1867. The statute deprived the Supreme Court of appellate jurisdiction in any case involving that Act. It was passed after the case had been argued, over a Presidential veto.

In Ex Parte McCardle (1869), the Court, speaking through Justice Chase, ruled that it was unable to act based on this legislative exception.

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