Florida Rep. Julio Gonzalez, the Venice Republican, on Tuesday filed a pair of bills that would be the first step in giving the Florida Legislature or the U.S. Congress power to override or nullify court decisions.
One bill, House Joint Resolution 121, is aimed at the state judiciary. It proposes a constitutional amendment referendum to be added to the next general-election ballot (or in a special election) that, if approved by voters, would give legislators the power to override judicial decisions by a two-thirds vote of each chamber for up to five years after a decision at any level–county, circuit, appeal or supreme court.
The other bill Gonzalez filed, House Memorial 125, urges Congress to propose a similar amendment, but to the U.S. Constitution, granting Congress the power to nullify federal court decisions. If the bill directed at the state judiciary wins legislative approval and clears the state Supreme Court’s review, at least 60 percent of Florida voters would have to approve for it to become law. An amendment to the federal Constitution would have to be ratified by at least 38 of the 50 states.
Gonzalez’s bills are a reflection of the Legislature’s latest assault on judicial power. Last year a legislative proposal would have imposed term limits on appellate and supreme court judges. The bill, proposing a constitutional amendment, passed the House, 76-38. But its companion measure, introduced by Sen. Travis Hutson, who represents Flagler County, died in the Senate Judiciary Committee.
Rep. Richard Corcoran, the new House Speaker with his eyes on the governorship, said he intends to make judicial reform a priority.
Gonzales, a physician by profession, is aiming his proposal at what he considers to be judicial overreach. “Indeed, we have seen these encroachments play out on countless occasions,” he wrote, explaining his decision to file the bills. “Supreme Court rulings have mandated that religious symbols be taken down from public places or be replaced with others. They have placed prohibitions on prayer in public schools, commencement ceremonies, and athletic events. Negations of laws prohibiting the desecration of the American flag have made the unconscionable legally acceptable, and judicial prohibitions on federal term limits have overturned the will of the people of a state, even if that will is enshrined in the affected state’s constitution. And recurrently, the distributions of votes in these opinions largely mirror the party affiliations of its members.”
He continued: “It is my concerted view that such provisions, if enacted by the people would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas. Equally as importantly, this would force the people to engage the legislature in enacting rectifications to current laws that they see as objectionable or flawed, restoring the natural relationship between the people and their legislative bodies. This would also force the electorate to more carefully look at their candidates and their actions during times of reelection.”
Gonzalez’s more ideological approach, however, may be undermined current law and weighty precedents that give his proposals little chance of success even as they may become grist for further partisan attacks on the judiciary.
The Legislature, as with Congress, currently has the power to at least try to either diminish or render moot a judicial ruling, but only by passing new laws that themselves must then pass the test of judicial review. No state has enacted a law that would give a legislature the outright power to override a court’s decision. The constitutionality of such a law would likely and quickly be be in doubt, as it strikes at the heart of the balance of powers, which leaves judicial review–the authority to review and declare laws unconstitutional–exclusively in the hands of courts.
Gonzale’s proposal addresses only the state judiciary. But by potentially giving the Legislature the power to override judicial decisions, the proposal would in effect give lawmakers the power to invalidate decisions based at least in part on federal constitutional law, thus reviving the specter of nullification–an issue settled in 1810 with a U.S. Supreme Court case that declared federal law supreme, and that the Supreme Court has the power to strike down state laws that contravene the Constitution.
State attempts to nullify federal law have never been successful.