For a self-style “constitutional conservative,” Representative Steve King has a lot of trouble with the separation of powers concept. In the past, King has tried to block federal courts from hearing cases related to marriage rights and encouraged state governments to disregard the U.S. Supreme Court’s 2015 marriage equality ruling.

King went one step further this week by introducing a bill to prohibit the Supreme Court from citing its previous cases involving the 2010 Affordable Care Act.

Legal experts agree King’s proposal is itself unconstitutional.

King’s one-paragraph bill names three Supreme Court decisions that would be “barred from citation for the purpose of precedence [sic] in all future cases”: National Federation of Independent Business v. Sebelius, the 2012 case that mostly upheld the Affordable Care Act; King v Burwell, the 2015 case that confirmed tax subsidies are available to Americans who buy health insurance on the federal exchange; and Burwell v. Hobby Lobby Stores, Inc., the 2014 case that struck down the contraception mandate in federal rules stemming from the health care reform law.

In a January 3 press release, King declared,

“Today, I introduced my full 100% repeal of ObamaCare ‘as if such Act had not been enacted,’ said King. “Obamacare should be ripped out by the roots and thus, I have introduced this legislation in conjunction with my repeal bill in an effort to look ahead and bar the Supreme Court from citing Obamacare in forthcoming decisions as binding precedent.

It was my first order of business on the morning after ObamaCare passed into law, March 24, 2010, to draft and introduce my full, 100% repeal of ObamaCare. By prohibiting the Supreme Court from citing ObamaCare cases, we will be truly eradicating this unconstitutional policy from all three branches of government so that the repeal will be complete. Furthermore, we must work to restore Article I authority and the Rule of Law by ensuring Congress is the only entity of our government making or changing laws.”

I sought comment from Mark Kende, director of the Constitutional Law Center at Drake University Law School:

To my knowledge, Congress has generally not barred the Court from relying on earlier cases like this though bills have been proposed and failed. The proposals have involved issues such as school prayer and abortion. I think the bills have failed because of great respect for judicial independence and because of their ideological bias. Bush v Gore said it was a one off, but courts have used it. There is not much case law in the area but my view is that this would violate basic separation of powers principles (an independent judiciary) as well as equal protection and due process principles. How can one justify singling out these areas? It would tragically further undermine the Court after the [Merrick] Garland fiasco. […]

Federal and state legislators have proposed not allowing courts to ever cite Islamic law. The federal proposals did not pass and most of the state laws have been ruled unconstitutional. The proposal is also anti-democratic as ACA [Affordable Care Act] is still the law.

Speaking to Tierney Sneed of Talking Points Memo, health law specialist Timothy Jost of Washington and Lee University said King’s idea got experts in his field “chuckling”:

“He obviously hasn’t read these opinions,” Jost said. He pointed to National Federation of Independent Businesses v. Sebelius, which Jost said “contained very strong statements about state rights;” King v. Burwell, which “included language in which the court basically limited deference to administrative agencies;” and Burwell v. Hobby Lobby, which “was all about religious liberty.”

“These are three precedents that one would think Representative King would affirm very strongly,” Jost said.

Conservative law blogger Eugene Volokh likewise found it “weird” that King’s 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.”

Like Kende, Volokh believes King’s bill would “unconstitutionally violate the separation of powers”:

Congress can’t just overrule the Supreme Court’s constitutional decisions […]. […] 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. […]

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.

Rick Hasen of the University of California-Irvine School of Law told Chris White of LawNewz.com that King’s bill “presents a classic separation of powers problem, telling another branch of government how to do its job.”

Hasen even questioned whether it was serious proposal, rather he expects “it did get Rep. King some attention, which was probably the point.”

Good call, professor.