Limiting Court Jurisdiction Over Federal Constitutional Issues: "Court-Stripping"
Released: 2005-01-24T00:00:00

Background

The authority of Congress to regulate the jurisdiction, procedures and remedies available infederal courts is principally found in Article III of the United States Constitution. Article III providesthat "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in suchinferior Courts as the Congress may from time to time ordain and establish." (6) Article III identifiesthe cases covered by this judicial power by two separate criteria -- the subject matter of particularcases or the identity of the litigants or persons affected. The subject matter of the federal judicialpower is quite broad, as it includes the power to consider "all" cases arising under either theConstitution, federal law or treaty, or arising from the admiralty or maritime jurisdiction. As noted,Article III also extends the federal judicial power to cases based on the types of parties affected orinvolved. These latter cases can be divided into two different groups.

The first group includes "all" cases which affect an Ambassador or other public Ministers or Consuls, or which involve a controversy between two or more States. The second group includescases involving disputes between the United States and another party; a state and citizens of anotherState; citizens of different States; citizens of the same state claiming land under grants of differentstates; and between a State, or the Citizens thereof, and foreign states, citizens or subjects. (7) Thecases in the first group, and any other cases where a State is a party, are to be heard directly by theSupreme Court under the Court's original jurisdiction. (8) The remaining cases in the second group,along with the Court's previously noted substantive authority, are heard under the Court's appellatejurisdiction. (9)

It is important to note that the Court's appellate jurisdiction (unlike its original jurisdiction) is subject to "Exceptions, and under such Regulations" as Congress shall make. (10) It should also benoted, however, that the Constitution provides for jurisdiction in "all" cases under its substantivejurisdiction or under the first group of cases based on parties. As will be discussed later, this has ledsome commentators to suggest that while Congress has the power to limit the Supreme Court'sappellate jurisdiction, that at least some cases must be considered by some federal court, whether itbe the Supreme Court or an inferior court.

The Supremacy Clause, found in Article VI, provides that the judges in every State are bound to follow the United States Constitution and applicable federal law. (11) The Congress does not appearto have the authority to establish state courts of competent jurisdiction. (12) However, once such statecourts exist, the Congress can endow them with concurrent power to consider certain casesconcerning federal law. When a state court has rendered a decision on an issue of federal law, anda final determination has been made by the highest court in that state, then that case may generallybe appealed to the Supreme Court. (13) Thus, statecourt cases can also fall under the Supreme Court'sappellate jurisdiction.

The question arises, however, precisely how the "judicial power" should be allocated between the various courts, and what sort of limitations can be implemented on the combined court systemsby Congress. While there have been many proposals to vary federal court jurisdiction in order toaffect a particular judicial result, few have passed, and even fewer have been subjected to scrutinyby the courts. Further, those laws that did pass varied from modern proposals. Thus, the answer tothese complex questions must be ascertained by reference to constitutional text, historical practice,a limited set of case law, and scholarly commentary.

Federal district courts and courts of appeal (the inferior federal courts) are authorized to consider most questions of federal statutory and constitutional law, with appeal to the SupremeCourt. In general, most modern "court-stripping" proposals appear to be intended to increase statecourt involvement in constitutional cases by decreasing federal court involvement. There are at leastthree possible variations to these proposals. (14) First, there are proposals which, by limiting inferiorfederal court jurisdiction, would, in effect, cause a particular class of constitutional decisions to beheard in state courts, with appeal to the Supreme Court. (15) Second, there are proposals to vest theexclusive jurisdiction to hear such constitutional cases in the state courts without appeal to theSupreme Court. (16) Third, the Congress might actto exclude any judicial review over a particular classof constitutional cases from any court, whether state or federal.

It should be noted that there are also proposals, not examined in depth here, that would limit the methods available to the various courts to remedy constitutional injury. (17) To the extent that theseremedy limitations actually prevent the vindication of established constitutional injury, they wouldappear to fall under the same category as proposals that limit the jurisdiction of particular courts.Thus, for instance, the amendment noted above which would prohibit the use of funds forenforcement of a particular district court decision, (18) would seem likely to be analyzed similarly toan amendment limiting lower court jurisdiction over constitutional cases. However, in situationswhere other sufficient remedies are left unchanged, a court might determine that the constitutionalright could be effectuated despite limits on a particular remedy. (19)

Analysis

As noted previously, the Congress considers and passes many laws that are exercises of itscontrol over judicial power under Article III. There appears, however, to be no direct legislativeprecedent for the types of "court-stripping" proposals noted above. While federal court jurisdictionor remedies have occasionally been varied by Congress to affect a particular judicial result, theassociated case law is of only limited applicability to the modern proposals. Thus, an analysis ofthese proposals will principally concern a textual analysis of the extent and limit of Congress'spower under Article III, a scholarly discussion on that subject, and related case law.

It should be noted, however, that various commentators have suggested that the constitutional problems with "court-stripping" provisions are more fundamental than an analysis of Congress'Article III powers. (20) The most significant issueis whether Congress, by attempting to changeconstitutional law by statute rather than constitutional amendment, is in violation of the doctrine ofseparation of powers. Further, when specific constitutional rights are singled out for disparatetreatment, a question arises as to whether that class of litigants is being treated in a mannerinconsistent with the Equal Protection Clause. Ultimately, an evaluation of a particular piece of"court-stripping" legislation may vary depending on what jurisdiction, remedies or procedures areaffected, and what ultimate impact this is likely to have on the specified constitutional rights.

Limiting Consideration of Specific Constitutional Issues to State Courts, Subject to Supreme Court Review

The argument has been made that because the Congress has the authority to decide whether or not to create inferior federal courts, it also has authority to determine which issues these courts mayconsider. There appears to be significant historical support for this position. While the establishmentof a federal Supreme Court was agreed upon early in the Constitutional Convention, theestablishment of inferior federal courts was not a foregone conclusion. At one point, it was proposedthat the Convention eliminate a provision establishing such inferior courts. This proposal wouldhave had state tribunals consider most federal cases, while providing Supreme Court review in orderto enforce national rights and ensure uniformity of judgments. (21)

James Madison opposed the motion to eliminate lower federal courts, arguing that such a decentralized system would result in an oppressive number of appeals, and would subject federal lawto the local biases of state judges. A compromise resolution, proposed by Madison and others, wasagreed to, whereby the Congress would be allowed, but not compelled, to create courts inferior tothe Supreme Court. The new plan, referred to as the "Madisonian Compromise," was ultimatelyadopted. Thus, Article III provides that Congress has the power to create courts inferior to theSupreme Court, but that it need not exercise it.

Once the Congress has agreed to the creation of inferior courts, however, the question then arises as to whether the Congress must grant these courts the full extent of the jurisdictioncontemplated by Article III. Some commentators have argued that the very nature of the MadisonianCompromise described above plainly allowed the establishment of federal courts with something lessthan the full judicial power available under Article III. (22) An 1816 decision by Justice Story, Martinv. Hunter's Lessee, (23) however, suggestedthat the Constitution requires that if inferior courts areestablished, there are some aspects of the judicial power which the Congress may not abrogate. Forinstance, Justice Story argued that the Congress would need to vest inferior courts with jurisdictionto hear cases that are not amenable to state court jurisdiction. (24) Thus, arguably, a constitutional issuewhich arose under a law within the exclusive federal jurisdiction (25) would need to be decided by afederal court.

There is significant historical precedent, however, for the proposition that there is no requirement that all jurisdiction that could be vested in the federal courts should be so vested. Forinstance, the First Judiciary Act implemented under the Constitution, the Judiciary Act of 1789, isconsidered to be an indicator of the original understanding of the Article III powers. That act,however, falls short of having implemented all of the "judicial powers" which were specified underArticle III. For instance, the act did not provide jurisdiction for the inferior federal courts to considercases arising under federal law or the Constitution. Although the Supreme Court's appellatejurisdiction did extend to such cases when they originated in state courts, its review was limited towhere a claimed statutory or constitutional right had been denied by the court below. (26)

There is also Supreme Court precedent that holds that the Congress need not vest the lower courts with all jurisdiction authorized by Article III. In Sheldon v. Sill , (27) the Court was asked toevaluate whether the Congress need grant a federal circuit court jurisdiction in a case where diversity(jurisdiction based on parties being from different states) had been manufactured by assignment ofa mortgage to a person in another state. The Court held that "Congress, having the power to establishthe courts, must define their respective jurisdictions." (28) The Court further indicated that "Congressmay withhold from any court of its creation jurisdiction of any of the enumerated controversies" sothat "a statute which does prescribe the limits of their jurisdiction, cannot be in conflict with theConstitution, unless it confers powers not enumerated therein." (29)

As noted earlier, the Supremacy Clause provides that state courts are bound to follow the United States Constitution, so that state courts which have cases within their jurisdiction are requiredto consider and decide such constitutional issues as they arise. The Congress does not have theauthority to establish the jurisdiction of state courts, and consequently those "court stripping"proposals that relate to the inferior federal courts do not generally specify that state courts willbecome the primary courts for vindication of specified constitutional rights. To the extent, however,that state courts provide a forum for the complete vindication of constitutional rights, then concernsabout removal of such issues from a federal court are diminished. However, as will be addressedlater, critics maintain that such "court stripping" proposals may suffer from other constitutionaldefects.

Limiting Consideration of Specific Constitutional Issues to State Courts with No Supreme Court Review

This scenario requires evaluation of two aspects of Article III: the power of Congress to allocate federal judicial power and the power of Congress to create exceptions to the Supreme Court'sappellate jurisdiction under the Exceptions Clause. As to the former, the question arises as towhether Congress need allocate any of the authorities delineated in Article III to the federal courtsbeyond cases decided under the "Original Jurisdiction" of the Supreme Court. In Martin v. Hunter'sLessee, (30) Justice Story noted that theConstitution provides that the judicial power "shall" be vestedin the Supreme Court, or in the such inferior courts as are created. His opinion thus asserted that itis the duty of Congress to vest the "whole" judicial power where it is so directed, either in theSupreme Court or in the inferior courts.

Justice Story did, however, note that the text of the Constitution suggests some limits to the requirement that the "whole" judicial power shall vest. This limit arises from the previously notedfact that some types of federal "judicial power" are extended by the text of the Constitution to "all"such cases, i.e., cases arising under either the Constitution, federal law, treaty, admiralty or maritimejurisdiction, or cases affecting an Ambassador or other public Ministers or Consuls. (31) The vestingof other types of cases cited in Article III (such as cases between citizens of different States) is notso characterized, and thus arguably Congress would have discretion whether or not to establish thesepowers in the federal courts.

Under this textual analysis, the power to consider cases concerning the Constitution must be vested in some federal court. Thus, according to Justice Story, a statute limiting consideration ofspecific constitutional issues to state courts with no Supreme Court review would beunconstitutional. This analysis, however, has attracted large amounts of scholarly attention, and thereis significant dispute over Justice Story's conclusion. On one hand, at least one commentator assertsthat not only is this theory supported by analysis of the text of the Constitution, but that it is alsoconsistent with jurisdictional limitations found in the Judiciary Act of 1789 and subsequent caselaw. (32) Other commentators, however, have takenissue with this analysis. (33) Absent additional courtprecedent on this point, a resolution of this scholarly debate would be largely speculative.

The second issue, whether Supreme Court review over a category of cases can be limited bylegislation under the Exceptions Clause, has been addressed to some extent by the Supreme Courtin Ex Parte McCardle. (34) In Ex Parte McCardle, the Congress had authorized federal judges to issuewrits of habeas corpus. McCardle, the editor of the Vicksburg Times, was arrested by federalmilitary authorities on the basis of various editorials published in his newspaper, and charged withdisturbing the peace, libel, incitement and impeding Reconstruction. Claiming constitutionalinfirmities with his case, McCardle sought and was denied a writ of habeas corpus in an inferiorfederal court, a decision which he then appealed to the Supreme Court. During the pendency of thatappeal, however, in an apparent attempt to prevent the Supreme Court from hearing the appeal, theCongress repealed the jurisdiction of the Supreme Court to hear appeals from habeas corpus decisions.

In McCardle, the Congress purported to be acting under its authority under Article III to make exceptions to the appellate jurisdiction of the Court. In reviewing the statute repealing the SupremeCourt's jurisdiction, the Court noted that it was "not at liberty to inquire into the motives of thelegislature. We can only examine its power under the Constitution: and the power to makeexceptions to the appellate jurisdiction of this court is given by express words." (35) Consequently, theSupreme Court accepted the withdrawal of jurisdiction over the defendant's case, and dismissed theappeal.

The case of Ex Parte McCardle, while it made clear the authority of the Congress to make exceptions to the appellate jurisdiction of the Supreme Court, does not appear to answer the questionas to whether all Supreme Court review of a constitutional issue can be eliminated. The Courtspecifically noted that McCardle had other avenues of review to challenge the constitutionality ofhis arrest apart from appellate review, namely the invocation of habeas corpus directly by theSupreme Court. (36) Consequently, unlike the instantproposals, the Supreme Court in McCardle maintained the ability to otherwise consider the underlying constitutional issues being raised.

In sum, there is no direct court precedent on this issue, and little or no consensus among scholars. The practical consequences of enacting these proposals is also unclear. While it ispresently the case that Supreme Court precedent binds state courts, it is not clear if this wouldcontinue to be the effect if the states became the court of final resort on a particular issue. (37) Evenif existing precedent was adhered to, over time it could become the case that divergent constitutionaldoctrine would arise in each of the fifty states on any issue where Supreme Court review wasprecluded. Arguments have been made that such a result would undercut the intention of theFounding Fathers to establish a uniform federal constitutional scheme. (38)

Prohibiting Any Court, State or Federal, From Considering a Specific Constitutional Issue

A series of lower federal court decisions seems to indicate that in most cases, some forum mustbe provided for the vindication of constitutional rights. For instance, in 1946, a series of SupremeCourt decisions (39) under the Fair Labor StandardsAct of 1938 (40) exposed employers to 5 billiondollars in damages, and the United States itself was threatened with liability for over 1.5 billiondollars. Subsequently, the Congress enacted the Portal to Portal Act of 1947, (41) which limited thejurisdiction of any court, state or federal, to impose liability or impose punishment with respect tosuch liabilities. Although the act was upheld by a series of federal district courts and Courts ofAppeals, most of the courts disregarded the purported jurisdictional limits, and decided the case onthe merits.

As one court noted, "while Congress has the undoubted power to give, withhold, or restrict the jurisdiction of courts other than the Supreme Court, it must not exercise that power as to deprive anyperson of life, liberty, or property without due process or just compensation. . . ." (42) The Court hasalso construed other similar statutes narrowly so as to avoid "serious constitutional questions" thatwould arise if no judicial forum for a constitutional claim existed. (43)

The Supreme Court has not directly addressed whether there needs to be a judicial forum to vindicate all constitutional rights. Justice Scalia has pointed out that there are particular cases, suchas political questions cases, where all constitutional review is in effect precluded. (44) Othercommentators point to sovereign immunity and the ability of the government to limit the remediesavailable to plaintiffs. (45) However, the Court has,in cases involving particular rights, generally founda requirement that effective judicial remedies be present. Thus, for instance, the Court has held thatthe Constitution mandates the availability of effective remedies for takings. (46) These cases wouldseem to indicate a basis for the Court to find that parties seeking to vindicate other particular rightsmust have a judicial forum for such challenges.

Limiting the Remedies and Procedures Available to the Court after a Constitutional Injury Has Been Established

Once a constitutional violation has been alleged, the question arises as to whether the Congress can limit the remedies available to prevailing litigants. Various such proposals have been made,such as the previously noted amendment limiting funds available to the courts for enforcement ofa particular court decision. (47) While the Congresswould certainly be within its authority to regulatecertain aspects of remedy, it is not at all clear that Congress could eliminate all remedies availableto a court, (48) or eliminate such remedies as wouldmake the vindication of a constitutional rightmeaningless. (49) Arguably, laws that had such aneffect would be analyzed by a court as having thesame impact as limiting a court's jurisdiction, and thus would be interpreted under the same analysis.

Laws Intended to Influence Constitutional Results Generally

Finally, there is a more general constitutional concern that would apply to proposals in all of the above categories, and that is the extent that Congress is prohibited from exercising powersallocated to another branch of government. (50) In United States v. Klein , (51) the Congresspassed a lawdesigned to frustrate a finding of the Supreme Court as to the effect of a presidential pardon. TheCourt struck down the law, essentially holding that the Congress had an illegitimate purpose inpassage of the law. "[T]he language of the proviso shows plainly that it does not intend to withholdappellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny topardons granted by the President the effect which this court had adjudged them to have. . . . It seemsto us that this is not an exercise of the acknowledged power of Congress to make exceptions andprescribe regulations to the appellate power." (52) Similarly, a law which was specifically intended tolimit the ability of a court to adjudicate or remedy a constitutional violation could violate the doctrineof separation of powers, as providing relief from unconstitutional acts is a judicial branch function. (53)

Constitutional considerations other than separation of powers could also be at issue if proposed legislation was intended to significantly burden a particular group or to impair a fundamental right.It is generally agreed that a law that limited a federal court's power for an illegitimate constitutionalpurpose could run afoul of provisions of the Constitution apart from Article III. For instance, a lawwhich limited access to the judicial system based on membership in a suspect class would appearto violate the Equal Protection Clause of the 14th Amendment. (54)

But, what if members of a group being discriminated against were not defined by membership in a suspect class, but instead by their status as plaintiffs in a particular type of constitutional cases?In general, Article III allows the Congress to provide different legal procedural rules for differenttypes of cases if there is a rational reason to do so. (55) However, even a rational basis analysis of suchdisparate treatment might not be met if the Court finds the argument put forward for burdening aparticular class of cases is illegitimate. (56) As meredisagreement with the results reached by thefederal courts in prior cases regarding the Constitution may not be a legitimate legislativejustification, alternative justifications for such laws would need to be developed.

The level of burden imposed by such proposals might also be a factor in evaluating their constitutionality. For instance, requiring litigants in particular federal constitutional cases to pursuetheir cases in state courts may not represent a significant burden, (57) and thus might require lesslegislative justification. However, more serious attempts to impair either the burden of litigation orthe remedies available might well require the establishment of a more significant governmentalinterest before such a law could be enforced.

Conclusion

Congress's authority to limit the jurisdiction of inferior federal courts appears relatively broad, so that limiting the jurisdiction of these courts to consider particular constitutional cases is arguablywithin its Article III authority. A more serious question is whether Congress could eliminate reviewof constitutional matters by both inferior courts and the Supreme Court. Finally, elimination ofreview of constitutional issues by any court, state or federal, seems the least likely to surviveconstitutional scrutiny.

It should be noted, however, that various commentators have suggested that any limitation of jurisdiction for a particular class of constitutional cases raises questions regarding both the separationof powers doctrine and the Equal Protection Clause. There appears, however, to be no directlegislative or judicial precedent for modern "court-stripping" proposals. While federal courtjurisdiction or remedies have been otherwise varied by Congress to affect a particular judicial result,few have passed, and even fewer have been subjected to scrutiny by the federal courts in moderntimes. Thus, a resolution of these broader questions would depend on further judicial developmentsin this area.