The Volokh Conspiracy

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Republican congressman trying to undermine Hobby Lobby decision—and it just gets weirder


Here's H.R. 177, introduced yesterday by Rep. Steve King (R-Iowa):

Under Article 3, Section 2, which allows Congress to provide exceptions and regulations for Supreme Court consideration of cases and controversies, the following cases are barred from citation for the purpose of precedence in all future cases after enactment: Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2573, 183 L. Ed. 2d 450 (2012) and King v. Burwell, 135 S. Ct. 2480, 2485, 192 L. Ed. 2d 483 (2015) and Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751, 2782, 189 L. Ed. 2d 675 (2014).


1. The bill would bar the court from citing Hobby Lobby, which read the Religious Freedom Restoration Act relatively broadly—the Hobby Lobby court accepted religious objections to regulations under the Affordable Care Act.

2. The bill would also tell the Supreme Court how to decide its own cases, which I think would unconstitutionally violate the separation of powers. Congress can't just overrule the Supreme Court's constitutional decisions, such as National Federation of Independent Business (absent a constitutional amendment). It can't tell courts how to decide cases (again, absent a change in the substantive law on which the case is based), see United States v. Klein (1871). It can't strip a court decision of its preclusive effect on the parties, see Plaut v. Spendthrift Farm, Inc. (1994). Congress therefore likewise can't try to limit the force of the Supreme Court's precedents (and especially its constitutional precedents) by telling the courts not to cite those precedents. Article 3, section 2 lets Congress limit the Supreme Court's jurisdiction to hear the cases—it doesn't let Congress tell the court how to decide a case that the court has the jurisdiction to hear.

3. But, beyond that, let's say that the bill is passed, and the court agrees to go along with it, deciding not to cite those cases as precedent. The justices would still be able to rely on the reasoning of the cases and would still be free to readopt that reasoning. So since there are still at least five votes on the court for the majority position in NFIB and King (and would be five votes for it in Hobby Lobby, if Justice Antonin Scalia's replacement shares his views in that case), the bill would essentially have no effect, at least until one of the liberals or Chief Justice John Roberts retires.

Now I realize that the bill is likely intended as political theater, and not as something that's actually likely to be enacted into law. But it seems like pretty poor theater.

Finally, and non-substantively: "precedence" was indeed once synonymous with "precedent," but, according to the Oxford English Dictionary, not since Shakespeare's time.

UPDATE: How embarrassing—I inadvertently attributed this to Peter King (R-NY), rather than to Steve King (R-Iowa). My apologies to Rep. Peter King; I've corrected the post accordingly.