Intrinsic Limits of Congress Power regarding the Judicial Branch

I. INTRODUCTION The question of Congress' power pervades the law of federal courts. This crucial aspect of the Constitution's separation of powers1 has been discussed extensively (although still inadequately) in connection with subject matter jurisdiction,2 but there has been less critical discussion of Congress' power to legislate about other aspects of judicial business. It seems to be simply assumed, for example, that Congress could lift the mootness bar3 or curtail judicial abstention.4 When the Supreme Court applied a statute in 1998 dispensing with "prudential" standing rules,5 no Justice troubled either to question or to explain Congress' presumed power to displace the judiciary's own "prudence" in this regard.6 The fact that Congress lacks the power to dispense with rules that are "constitutional" in character does not imply that it has the power to make or unmake rules about everything so long as those rules are nonconstitutional in character. Ours is not a system of parliamentary omnicompetence: "under a constitution conferring specific powers, the power contended for must be granted, or it cannot be exercised."7 At least as to subject matter jurisdiction, some have argued that a "plenary" power in Congress to meddle with the courts is an aspect of constitutional "checks and balances,"8 and there are Supreme Court dicta exhibiting what one observer described as "an almost unseemly enthusiasm in discussing Congress' power to lop off diverse heads of . . . article III jurisdiction."9 Some commentators have more or less credibly urged some constitutional limits to this "congressional primacy,"10 including due process,11 equal protection,12 and nebulous inferences from the concept of separation of powers;13 and two years ago, three justices encouraged such arguments by filing a short concurring opinion solely to emphasize that doubts about Congress' power regarding the judiciary remain.14 Therefore, there is some hope for a sober reassessment even regarding jurisdiction. And if this is true as to jurisdiction despite the volumes already written, there is more reason to hope for some rethinking about aspects of judiciary legislation which have received less attention. The arguable limits suggested in the literature to date are all extrinsic to the congressional power supposed: they posit a legislative competence with no important intrinsic bounds, and then fence it from a few applications with sticks from sources independent of the posited power itself. This article, in contrast, identifies and examines the intrinsic limits of Congress' power to legislate regarding the judiciary. These intrinsic limits, it turns out, are more definite, more certain, and of much greater practical importance, even though for a long time they have been almost universally overlooked. Intrinsic limits derive from the principle of enumerated powers15 and the constitutional terms by which a particular "power" is conferred. Classic illustrations include Chief Justice Marshall's analyses of the Commerce Clause16 and the Necessary and Proper Clause.17 One more recent illustration is the Supreme Court's elucidation of Congress' Fourteenth Amendment enforcement power when it invalidated the socalled "Religious Freedom Restoration Act."18 The constitutional provision from which almost all of Congress' power regarding the judiciary derives is the Necessary and Proper Clause.19 In fact, as shown below, that clause was deliberately designed for this purpose (among others); and for generations its operation in this regard was expressly recognized. While this clause confers a power that is very substantial, in conjunction with Article III of the Constitution it also guarantees judicial independence by imposing crucial intrinsic limitations. Orthodox opinion in the twentieth century, however, has overlooked the Necessary and Proper Clause as the ground of judiciary legislation, and so has failed to consider the intrinsic limits it entails. …