Ted Cruz: Strip Federal Courts of Authority Over Gay Marriage

Written by SK Ashby

At the same event in Iowa where Ted Cruz denounced fortune 500 companies for endorsing the 'radical gay agenda,' Cruz also called for stripping all federal courts of jurisdiction.

After defending Indiana's anti-gay "religious freedom" law in no uncertain terms, Cruz said he would call on Congress to strip federal courts of their power.

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.

If virtually every federal court system and the Supreme Court agree on a certain subject -- such the Equal Protection Clause of the Fourteenth Amendment -- I don't think it would be fair to call it "judicial activism," lawlessness or "fundamentally illegitimate" so long as words still have meaning.

Near unanimous decisions aren't necessarily right, but they are not representative of "judicial activism" in the way that a single judge stepping out of bounds to squash an executive order or overrule a higher court ruling on gay marriage is.

Some might accuse Cruz's colleagues of judicial activism for judge shopping.

As Ian Millhiser at ThinkProgress points out, there is some debate on whether or not stripping federal courts of their power would be constitutional.

While successful court-stripping proposals are extraordinarily rare, and legal scholars disagree on whether stripping the Supreme Court of its full authority to hear an issue is even constitutional, there is a plausible legal argument supporting such proposals. The Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Thus, 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.

We often use the term "slippery slope" ironically, but I'd say that's what this is. This would be just the first step toward eliminating or otherwise relegating the entire federal judiciary.

The good news is it will never happen because Ted Cruz will never become president, but that doesn't mean Democrats shouldn't use Cruz's own words against him and the whole Republican party at every opportunity.