Statement ● Human and Civil Rights
For Immediate Release: 
July 22, 2004
Contact Info: 
Rep. Steny Hoyer

WASHINGTON, DC – House Democratic Whip Steny H. Hoyer (MD) made the following statement today on the House Floor during debate on H.R. 3313, which would bar Federal courts, including the Supreme Court, from considering the constitutionality of Federal legislation:

“Mr. Speaker, I urge all of my colleagues – on both sides of the aisle – to weigh seriously the ramifications of the legislation that we are now considering.  The momentous nature of this debate demands sober reflection and careful reasoning.  If this bill becomes law, it will represent the first time in our nation’s history that Congress has enacted legislation that completely bars any Federal court – including the United States Supreme Court – from considering the constitutionality of Federal legislation. 

“Specifically, this legislation would effectively preclude any Federal judicial review of any constitutional challenge to the validity of the Defense of Marriage Act.  And thus, it contradicts the Supreme Court’s historic ruling more than 200 years ago in Marbury v. Madison, which enunciated the principle of Federal judicial review of Federal laws and established the separation of powers doctrine.  In Marbury, decided in 1803, Chief Justice John Marshall wrote (and I quote):  ‘It is emphatically the province and duty of the judicial department to say what the law is.’  Ever since then, judicial review has been the touchstone of our constitutional system and American democracy.

“This legislation, however, would undo the long deference and respect that Congress has given to the principle of judicial review; it intrudes on the principle of separation of powers between the branches of government; and, as a result, I believe it is unconstitutional.  Furthermore, this court-stripping legislation would undermine the independent Federal judiciary and set a very dangerous precedent.  Even the Republican Majority’s witness in the Judiciary Committee, Professor Martin Redish of the Northwestern University School of Law, stated (and I quote):  ‘I . . . firmly believe that were Congress to [strip Federal courts of jurisdiction in DOMA cases, it] would risk undermining public faith in both Congress and the Federal courts.’

“For more than 200 years, Mr. Speaker, an independent, strong Federal judiciary has been vital to our policy of checks and balances, and our Founders long recognized its importance.  In Federalist Paper 78, Alexander Hamilton wrote (and I quote):  ‘In a monarchy, it [an independent Federal judiciary] is an excellent barrier to the despotism of the prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body.’

“Let us recognize today the radical, unprecedented nature of the action that the Members of this House are being asked to take.  And let us recognize the dangerous legal precedent that this legislation would set.  Even the author of the Defense of Marriage Act, former Republican Congressman Bob Barr, has expressed grave concern about the precedent that would be established by this legislation.  He stated (and I quote):  ‘My main concern with H.R. 3313 is that it will lay the path for the sponsors of [unconstitutional legislation] to simply add the language from H.R. 3313 to their bills.’

“The real question that we ought to be asking is this: If this end-run of judicial review becomes law, what’s next?  No judicial review of laws restricting freedom of speech or religion?  Of laws affecting the right to vote?  Of the right to privacy?

“Mr. Speaker, this legislation is an unprecedented and unconstitutional Pandora’s box.  It is a frontal assault on our constitutional system, and runs counter to our best traditions.  It would degrade our independent Federal judiciary.  And it would set an incredibly dangerous legal precedent.”