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The U.S. House of Representatives has voted to withhold any funds that would be used to enforce a recent federal appeals court decision declaring the Ten Commandments in Alabama’s judicial building unconstitutional. In addition to its impact in the debate over church-state separation, the vote last Wednesday expanded what was already a heated argument over government authority — specifically between Alabama’s chief justice and federal judges. But with its 260-161 decision, the House posed intriguing questions about Congress’ power to influence the executive branch’s enforcement of judicial rulings. At the center of the matter is Alabama Supreme Court Chief Justice Roy S. Moore, who maintains the Ten Commandments monument he designed does not violate the constitution’s ban on state-established religion. He also claimed in court testimony and legal briefs that he is not necessarily bound by rulings of the federal courts. A panel of the 11th U.S. Circuit Court of Appeals on July 1 rejected both arguments. It concluded that Moore’s monument improperly advanced religion and compared Moore’s theory of federal authority to that of southern governors who tried to defy integration rulings during the 1960s. “The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted,” Judge Edward E. Carnes wrote in the decision. “The chief justice of a state supreme court, of all people, should be expected to abide by that principle. … If necessary, the court order will be enforced.” Glassroth v. Moore, Nos. 02-16708 and 02-16949 (11th Cir. July 1, 2003). But as the House last week debated the bill that funds, among other things, the Department of Justice and the federal judiciary, Rep. John N. Hostettler, R-Ind., had other ideas. PROTECTING THE TEN COMMANDMENTS According to the Congressional Record, Hostettler claimed that with its Ten Commandments ruling, “the court plainly shows that it believes itself to be the chief lawmaker whose orders become law.” Quoting Alexander Hamilton, Hostettler argued that the judiciary has “neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Hostettler then explained that Congress could use its power over federal spending to prevent the enforcement of the Ten Commandments ruling — and a 2002 ruling by the 9th Circuit that held the words “under God” in the Pledge of Allegiance unconstitutional. Referring to the U.S. Supreme Court — to which both decisions have been appealed — Hostettler said, “It might be suggested that we do not want this legislation to disrupt the judicial process in the interim between the Circuit Court of Appeals process and the Supreme Court. It is not my intention to do that tonight. In fact, I welcome the highest court’s review of this decision; and I say tonight that if they get it wrong, I will exercise the power of the purse again and defund the enforcement of that inane decision.” But the leading Democrat on the Appropriations Committee, Rep. David R. Obey, D-Wis., responded that the amendment “pretends that we are doing something to protect the Ten Commandments,” while in reality it had no real effect on the enforcement of the decisions. “I would suggest that rather than offering amendments that pretend to do that, if we want to protect the Ten Commandments, we will simply start by following them in our own lives and in our own careers,” Obey concluded. The bill is now before the Senate, but in the complicated world of government appropriations, much could change before it reaches President Bush to become law. Government experts disagreed on how much effect the amendment, if it survives, would have on the enforcement of the appeals court decisions. “Congress can’t prevent the president from enforcing core executive functions,” one of which is enforcing court rulings, said Ronald Klain, a partner at O’Melveny & Myers in Washington, D.C., and a former counselor to Vice President Albert A. Gore Jr. and Attorney General Janet Reno. But Griffin B. Bell, a former federal appeals court judge and attorney general, said Congress regularly uses its power over government money to stop executive programs lawmakers do not like: “They have that power.” Nobody has absolute power in the government, added Bell, a senior partner at Atlanta’s King & Spalding. He noted that neither Congress nor the courts control the U.S. Marshals, who were used throughout the 1960s to enforce civil rights rulings. As for the House’s vote, Bell said, “It’s not showing a great deal of respect for the law.” ALL EYES ON THE SENATE A spokesman for Alabama Chief Justice Moore issued a statement that said, “This action by Congress is a recognition that liberal federal judges are wrong when they try to say that long-standing historical practices, like the public acknowledgement of God, are unconstitutional.” Barry W. Lynn, who heads Americans United for the Separation of Church and State in Washington, D.C., which brought the challenge against Moore’s monument, issued a statement that said, “It is completely outrageous for the House to try to interfere in this way with ongoing court cases dealing with sensitive questions about the Bill of Rights. I am confident the Senate will not go along with this extreme measure.” A spokesman for Sen. Richard C. Shelby, R-Ala., said that Shelby would support the amendment. The position of Sen. Jeff Sessions, R-Ala., could not be obtained by press time. Spokespeople for Sens. Zell Miller, D-Ga., and C. Saxby Chambliss, R-Ga., said they could not take a position on the amendment because the bill is in such an early stage of the Senate process. In Georgia’s House delegation, 11 of 13 members voted in favor of Hostettler’s amendment. They were Republicans Max Burns, Mac Collins, Nathan Deal, Phil Gingrey, Johnny Isakson, Jack Kingston, John Linder, and Charles W. Norwood; and Democrats Sanford D. Bishop Jr., James Marshall and David Scott. Democrats John Lewis and Denise L. Majette voted against the amendment.

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