Congressional Authority Over the Federal Courts
Released: 2005-05-16T00:00:00

This report examines Congress' legislative authority with respect to the Judicial Branch. While Congress has broad power to regulate the structure, administration and jurisdiction of the courts, its powers are limited by precepts of due process, equal protection and separation of powers. Usually congressional regulation of the judicial branch is noncontroversial, but when Congress proposes to use its powers in a manner designed to affect the outcome of pending or previously decided cases, constitutional issues can be raised. For instance, Congress has in recent years considered using or has exercised its authority in an attempt to affect the results in cases concerning a number of issues, including abortion, gay marriage, freedom of religion, "right to die" and prisoners' rights.

This report addresses the constitutional foundation of the federal courts, and the explicit and general authorities of Congress to regulate the courts. It then addresses Congress' ability to limit the jurisdiction of the courts over particular constitutional issues, sometime referred to as "court-stripping." The report then analyzes Congress' authority to limit the availability of certain judicial processes and remedies for constitutional litigants. Congressional power to legislate regarding specific judicial decisions is also discussed. Much of the material in the section on congressional power over court jurisdiction is also included in CRS Report RL32171, Limiting Court Jurisdiction Over Federal Constitutional Issues: " Court-Stripping " , by [author name scrubbed].

I. Congressional Powers Under the Constitution

A. Over the Federal Courts

If one reads the first three Articles of the Constitution carefully, a striking observation immediately emerges. Article I (the legislative branch) is quite detailed and specific with respect to the authority of and limits on Congress, especially when compared with Article II (the executive branch) and Article III (the judicial branch). One reason for this detail is that Article I deals not only with the nature of the legislature but also with the overall powers of the federal government. But this contrast also makes it clear that Congress possesses the authority to fill out the powers conferred on the Executive and Judiciary. This is revealed in several specific provisions but most notably in the final provision of the Article, the "necessary and proper clause." That clause not only empowers Congress to enact all "necessary and proper" laws in order to execute the powers conferred on Congress, but also allows Congress to make laws to execute "all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof."

The Constitution contains few requirements regarding the structure of the federal courts. Article III, Section 1, of the Constitution provides that

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Although Article III provides for a Supreme Court headed by the Chief Justice of the United States, nothing else about its structure and its operation is specified, so the size and composition of the Court is left to Congress. The lack of a constitutionally prescribed number has provided opportunities to manipulate, or to attempt to manipulate, the Court. As Congress also determines the time and place of the Supreme Court's meeting, it has also used this power to influence the make-up of the judiciary.

Utilizing its power to establish inferior courts, Congress has created the United States district courts, the courts of appeals for the thirteen circuits, and other federal courts, identified their location, the places in which they sit, and the number of justices or judges for each court. Congress, has also addressed a range of aspects of the administration of the courts. For example, Congress, through its exercise of Spending Clause power, provides funding for the operation of the courts, including judicial salaries, subject to the limitation on diminution of compensation of judges during their terms of office. The Administrative Office of the United States Courts is established by statute, as are the judicial councils of the circuits, the judicial conferences of the circuits, and the Judicial Conference of the United States.

On the other hand, Congress has delegated much of its court rule-making authority to the federal courts. For example, in the Judiciary Act of 1789, Congress gave the federal courts power "to make and establish all necessary rules for the orderly conducting of business in said courts, provided such rules are not repugnant to the laws of the United States." Pursuant to these statutory authorities, the United States Supreme Court has promulgated rules of civil procedure (including supplemental rules for admiralty and maritime cases), habeas corpus , criminal procedure, evidence, appellate procedure, and bankruptcy. Where Congress has deemed it appropriate, it has by statute rejected or amended proposed rules, delayed the effective dates of proposed rules, or drafted and enacted court rules itself.

B. Over Federal Judges

The remainder of Section 1 of Article III contains two critical provisions regarding federal judges. First is "good behavior" tenure, which effectively has come to mean lifetime tenure for Article III judges subject to removal only through conviction on impeachment. The second provision relates to security of compensation, meaning that a federal judge's compensation may "not be diminished during their continuance in office," although, as controversies over the years have shown, the compensation need not be sufficient within the judges' understanding.

Impeachment, which is addressed in Article II of the Constitution, applies to all civil officers of the United States in both the executive and judicial branches. However, a majority of the fifteen officials who have been impeached in the House of Representatives and tried in the Senate, and all of the seven convicted and removed from office, have been judges. The imposition of punishment for judicial misconduct by the federal judiciary has also been addressed by statute, but these provisions do not provide for the removal of a judge or Justice from office.

That Congress "may from time to time ordain and establish inferior courts" may be thought to imply that Congress may expand and contract the units of the system. But what happens to the judges who occupy posts on the courts that are abolished or reduced in the number of judges? This was the question that occurred with the repeal of the Judiciary Act of 1801, but no resolution of the issue was achieved at that time. Congress did not exercise this power again until 1913, when it abolished the special Commerce Court, which had proved disappointing to its sponsors. In 1913, Congress provided for the redistribution of the judges of the Commerce Court among the circuit courts. Since then, as Congress has rearranged some courts, it has always provided for the same kind of redistribution, usually assigning judges to those courts that received the jurisdiction of the abolished courts.

II. Limits on Congress' Constitutional Powers

A. Textual Limitations

On its face, there is no limit on the power of Congress to make exceptions to and regulate the Supreme Court's appellate jurisdiction, to create inferior federal courts and to specify their jurisdiction. However, that is true of the Constitution's other grants of legislative authority in Article I and elsewhere, but this does not prevent the application of other constitutional principles to those powers. "[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas," Justice Black wrote for the Court in a different context, but "these granted powers are always subject to the limitations that they may not be exercised in a way that violates other specific provisions of the Constitution." The elder Justice Harlan seems to have had the same thought in mind when he said that, with respect to Congress' power over jurisdiction of the federal courts, "what such exceptions and regulations should be it is for Congress, in its wisdom, to establish, having of course due regard to all the Constitution."

Thus, it is clear that while Congress has significant authority over administration of the judicial system, it may not exercise its authority over the courts in a way that violates the Fifth Amendment due process clause or that violates precepts of equal protection. For instance, Congress could not limit access to the judicial system based on race or ethnicity. Nor, without amendment of the Constitution, could Congress provide that the courts may take property while denying a right to compensation under the takings clause. In general, the mere fact Congress is exercising its authority over the courts does not serve to insulate such legislation from constitutional scrutiny.

B. Separation of Powers

It is also clear that Congress may not exercise its authority over the courts in a way that violates precepts of separation of powers. The doctrine of separation of powers is not found in the text of the Constitution, but has been discerned by courts, scholars and others in the allocation of power in the first three Articles, i.e., the "legislative power" is vested in Congress, the "executive power" is vested in the President, and the "judicial power" is vested in the Supreme Court and the inferior federal courts. That interpretation is also consistent with the speeches and writings of the framers. But while the rhetoric of the Supreme Court points to a strict separation of the three powers, its actual holdings are far less decisive. Nevertheless, beginning with Buckley v. Valeo , the Supreme Court has reemphasized separation of powers as a vital element in American federal government.

The two approaches that the Court has used in its separation of powers cases have been characterized as a formalist or strict approach and as a functionalist approach. A formalist or strict approach examines the text of the Constitution to determine the degree to which branch powers and functions may be intermingled, emphasizing that powers committed by the Constitution to a particular branch are to be exercised exclusively by that branch. Such an approach looks to a textual analysis to determine whether and the extent to which the actions of one branch aggrandize the power of that branch or encroach upon that of another branch. In contrast to such a textual analysis, the more flexible functionalist approach to separation of powers focuses upon the preservation of the core functions of the three branches, looking in a given case to whether the exercise of power by one branch impinges upon a core function of a coordinate branch. In articulating its functionalist approach in Nixon v. Administrator of General Services , the Court stated that, where a question arose as to whether an act of Congress

... disrupts the proper balance between coordinate branches, the proper inquiry focuses upon the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.... Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.

The federal courts have long held that Congress may not act to denigrate the authority of the judicial branch. In the 1782 decision in Hayburn ' s Case , several Justices objected to a congressional enactment that authorized the federal courts to hear claims for disability pensions for veterans. The courts were to certify their decisions to the Secretary of War, who was authorized either to award each pension or to refuse it if he determined the award was an "imposition or mistaken." The Justices on circuit contended that the law was unconstitutional because the judicial power was committed to a separate department and because the subjecting of a court's opinion to revision or control by an officer of the executive or the legislative branch was not authorized by the Constitution. Congress thereupon repealed the objectionable features of the statute. More recently, the doctrine of separation of powers has been applied to prevent Congress from vesting jurisdiction over common-law bankruptcy claims in non-Article III courts.

III. Congressional Power Over Court Jurisdiction

Allocation of court jurisdiction by Congress is complicated by the presence of state court systems that can and in some cases do hold concurrent jurisdiction over cases involving questions of federal statutory and constitutional law. Thus, the power of Congress over the federal courts is really the power to determine how federal cases are to be allocated among state courts, federal inferior courts, and the United States Supreme Court. Congress has significant authority to determine which of these various courts will adjudicate such cases, and the method by which this will occur. For most purposes, the exercise of this power is relatively noncontroversial.

Over the years, however, various proposals have been made to limit the jurisdiction of federal courts to hear cases in particular areas of law such as busing, abortion, prayer in school, and most recently, reciting the Pledge of Allegiance. Generally, proponents of these proposals are critical of specific decisions made by the federal courts in that particular substantive area, and the proposals are usually intended to express disagreement with decisions in those areas and/or to influence the results or applications of such cases.

Several such proposals passed the House in the 108 th Congress. For instance, in July 2003, an amendment was passed by the House to limit the use of funds to enforce a federal court decision regarding the Pledge of Allegiance. Then, in July 2004, the House passed H.R. 3313 , the Marriage Protection Act, which would have limited Federal court jurisdiction over questions regarding the Defense of Marriage Act. Finally, in September 2004, the House passed H.R. 2028 , the Pledge Protection Act, which was intended to limit the jurisdiction of the federal courts to hear cases regarding the Pledge of Allegiance. These proposals are often referred to as "court-stripping" proposals, and some of these proposals may raise significant constitutional questions.

A. The Allocation of Federal Judicial Power

As noted, Article III provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish." Article III also identifies the cases covered by this judicial power by two separate criteria—the subject matter of particular cases or the identity of the litigants or persons affected. The subject matter of the federal judicial power is quite broad, as it includes the power to consider "all" cases arising under either the Constitution, 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 or involved. 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 includes cases involving disputes between the United States and another party; a state and citizens of another State; citizens of different States; citizens of the same state claiming land under grants of different states; and between a State, or the Citizens thereof, and foreign states, citizens or subjects. The cases in the first group, and any other cases where a State is a party, are to be heard directly by the Supreme Court under the Court's original jurisdiction. The remaining cases in the second group, along with the Court's previously noted substantive authority, are heard under the Court's appellate jurisdiction.

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. It should also be noted, however, that the Constitution provides for jurisdiction in "all" cases under its substantive jurisdiction or under the first group of cases based on parties. As will be discussed later, this has led some commentators to suggest that while Congress has the power to limit the Supreme Court's appellate jurisdiction, that at least some cases must be considered by some federal court, whether it be 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. Congress does not appear to have the authority to establish state courts of competent jurisdiction. However, once such state courts exist, Congress can endow them with concurrent power to consider certain cases concerning federal law. When a state court has rendered a decision on an issue of federal law, and a final determination has been made by the highest court in that state, then that case may generally be appealed to the Supreme Court. Thus, state court cases can also fall under the Supreme Court's appellate 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 systems by Congress. While there have been many proposals to vary federal court jurisdiction in order to affect a particular judicial result, few have become law, and even fewer have been subjected to scrutiny by the courts. Further, those laws that did pass varied from modern proposals. Thus, the answer to these 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 Supreme Court. In general, most modern "court-stripping" proposals appear to be intended to increase state court involvement in constitutional cases by decreasing federal court involvement. There are at least three possible variations to these proposals. First, there are proposals which, by limiting inferior federal court jurisdiction, would, in effect, cause a particular class of constitutional decisions to be heard in state courts, with appeal to the Supreme Court. Second, there have been proposals to vest exclusive jurisdiction to hear such constitutional cases in the state courts without appeal to the Supreme Court. Third, proposals may exclude any judicial review over a particular class of constitutional cases from any court, whether state or federal.

It should be noted that at least one court-stripping proposal does not limit the court's jurisdiction, but rather limits the remedy available. To the extent that these remedy limitations actually prevent the vindication of established constitutional injury, they would appear 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 for enforcement of a particular district court decision, would seem likely to be analyzed similarly to an amendment limiting lower court jurisdiction over constitutional cases. As will be discussed later, however, in situations where some sufficient remedies remain, a court might determine that the constitutional right could be effectuated despite such limits.

B. Limiting Judicial Review

Under the doctrine of judicial review, federal and state courts review the constitutionality of legislation passed by Congress and state legislatures. There are few examples of Congress attempting to use its power over federal court jurisdiction to limit judicial review of substantive constitutional law, and no examples of Congress successfully precluding federal courts from an entire area of constitutional concern. Most commentators agree that the constitutional problems with "court-stripping" provisions do not just arise from an analysis of the extent of Congress' Article III powers, but must also address an examination of constitutional limitations on this authority.

The Court has struck down attempts by Congress to pass legislation intended to directly overturn constitutional decisions of the Supreme Court. It would seem unlikely that the Supreme Court would allow Congress to achieve the same results using Congress' power over jurisdiction and procedure. As noted previously, legislation that has the effect of encroaching upon the Judicial Branch or aggrandizing Congress's authority may be limited by the doctrine of separation of powers. In particular, significant issues of separation of powers issue might arise if Congress attempted to prevent the Supreme Court from reviewing the constitutionality of legislation that Congress had passed.

In United States v. Klein , Congress passed a law designed to frustrate a finding of the Supreme Court as to the effect of a presidential pardon. The Court struck down the law, essentially holding that Congress had an illegitimate purpose in passage of the law. "[T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have.... It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power." Similarly, a law which was specifically intended to limit the ability of a court to adjudicate or remedy a constitutional violation could violate the doctrine of separation of powers, as providing relief from unconstitutional acts is a judicial branch function.

When specific constitutional rights are singled out by Congress for disparate treatment, a question also arises as to whether that class of litigants is being treated in a manner inconsistent with the Equal Protection Clause. As noted earlier, it is generally agreed that a law that limited a federal court's power for an illegitimate purpose, such as to deny access to the courts based on race, would run afoul of provisions of the Constitution apart from Article III. But, what if members of a group being excluded from the courts were not defined by membership in a suspect class, but instead by their status as plaintiffs in a particular type of constitutional case?

In general, Article III allows Congress to provide different legal procedural rules for different types of cases if there is a rational reason to do so. However, even a rational basis analysis of such disparate treatment might not be met if the Court finds the argument put forward for burdening a particular class of cases is illegitimate. As mere disagreement with the results reached by the federal courts in prior cases regarding the Constitution may not be viewed as a legitimate legislative justification, alternative justifications for such laws would need to be established before such a rational basis test would be met.

It should be noted, however, that not all variations of the courts' jurisdiction absolutely limit the rights of litigants to have constitutional issues reviewed by some court. Thus, an evaluation of a particular piece of "court-stripping" legislation may vary depending on what jurisdiction, remedies or procedures are affected, and what ultimate impact this is likely to have on the specified constitutional rights. Thus, the question may well turn on how such legislation burdened a particular group or impaired a fundamental right. For instance, requiring litigants in particular federal constitutional cases to pursue their cases in state courts may not represent a significant burden, and thus might require less legislative justification. However, more serious attempts to impair either the burden of litigation or the remedies available might well require the establishment of a more significant governmental interest before such a law could be enforced.

C. Eliminating Inferior Federal Court Review

Various proposals have been made that would eliminate lower federal court review over certain constitutional issues, leaving such decisions to state courts, with Supreme Court review. The argument has been made that because Congress has the authority to decide whether or not to create inferior federal courts, it also has authority to determine which issues these courts may consider. There appears to be significant historical support for this position. While the establishment of a federal Supreme Court was agreed upon early in the Constitutional Convention, the establishment of inferior federal courts was not a foregone conclusion. At one point, it was proposed that the Convention eliminate a provision establishing such inferior courts. This proposal would have had state tribunals consider most federal cases, while providing Supreme Court review in order to enforce national rights and ensure uniformity of judgments.

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 law to the local biases of state judges. A compromise resolution, proposed by Madison and others, was agreed to, whereby Congress would be allowed, but not compelled, to create courts inferior to the Supreme Court. The new plan, referred to as the "Madisonian Compromise," was ultimately adopted. Thus, Article III provides that Congress has the power to create courts inferior to the Supreme Court.

Once Congress has agreed to the creation of inferior courts, however, the question then arises as to whether it must grant these courts the full extent of the jurisdiction contemplated by Article III. Some commentators have argued that the very nature of the Madisonian Compromise described above plainly allowed the establishment of federal courts with something less than the full judicial power available under Article III. A 1816 decision by Justice Story, Martin v. Hunter ' s Lessee , however, suggests that the Constitution requires that if inferior courts are established, there are some aspects of the judicial power which Congress may not abrogate. For instance, Justice Story argued that Congress would need to vest inferior courts with jurisdiction to hear cases that are not amenable to state court jurisdiction. Thus, arguably, a constitutional issue which arose under a law within the exclusive federal jurisdiction would need to be decided by a federal 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 must be so vested. For instance, the First Judiciary Act implemented under the Constitution, the Judiciary Act of 1789, is considered 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 under Article III. For instance, the act did not provide jurisdiction for the inferior federal courts to consider cases arising under federal law or the Constitution. Although the Supreme Court's appellate jurisdiction did extend to such cases when they originated in state courts, its review was limited to where a claimed statutory or constitutional right had been denied by the court below.

There is also Supreme Court precedent that holds that Congress need not vest the lower courts with all jurisdiction authorized by Article III. In Sheldon v. Sill , the Court was asked to evaluate whether 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 of a mortgage to a person in another state. The Court held that "Congress, having the power to establish the courts, must define their respective jurisdictions." The Court further indicated that "Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies" so that "a statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein."

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 required to consider and decide such constitutional issues as they arise. Congress does not have the authority 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 will become 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 concerns about removal of such issues from a federal court are diminished. However, as noted earlier, such "court stripping" proposals would still need to meet requirements of equal protection, due process, or separation of powers.

D. Eliminating Inferior and Supreme Court Review

Other proposals noted above would eliminate all federal court review of certain constitutional issues, leaving these decision to be finally decided by various state courts. Elimination by Congress of all federal question review over a particular constitutional question by the Supreme Court appears to be unprecedented. While there was a time when inferior federal courts did not have general federal jurisdiction, constitutional challenges against a state's actions could still be brought in the state courts, with appellate review in the Supreme Court.

Initially, the Supreme Court's appellate review was limited to only certain procedural postures. Under § 25 of the Judiciary Act of 1789, there were three categories of appellate jurisdiction to the Supreme Court available:

1. Where the validity of a treaty, statute, or authority of the United States is drawn into question and the state court's decision is against their validity.

2. Where the validity of a state statute or authority is challenged on the basis of federal law and the state court's decision is in favor of their validity.

3. Where a state court construes a United States constitution, treaty, statute, or commission and decides against a title, privilege, or exemption under any of them.

The first category of appellate jurisdiction was clearly intended to promote a national, uniform resolution of questions of the validity of federal laws or treaties by providing Supreme Court review where a federal law or treaty was invalidated. Thus, if a federal law was found to violate the Constitution, the case could be reviewed by the Supreme Court. Similarly, if a federal law and a state law conflicted, and the state law was upheld, the litigant could appeal to the Supreme Court, thus providing for review of state laws upheld despite constitutional challenge. Finally, where a state court decided against a title, privilege, or exemption of a litigant based on federal law, the Court could hear the case. Only if a state court upheld a federal law or treaty, or struck a state law as inconsistent with federal law did the Supreme Court lack jurisdiction. Thus, in those procedural postures where the federal interest was not being challenged, § 25 would have the effect of insulating a federal law from a constitutional attack.

Thus, while a constitutional challenge might be postponed because of the procedural posture of a case, state and federal laws were not protected from appellate review from the Supreme Court. For instance, if a state law was invalidated by a state court as being in conflict with a federal law, precluding the losing party from appealing that decision, no principle of res judicata or collateral estoppel would prevent a challenge to such state laws being brought in other States. If another state court upheld such a state law, this decision could be appealed, and the precedent would apply to the state where the first challenge was brought. Thus, there was no general bar on such issues coming before the Supreme Court.

Whether a complete bar of federal court review of a constitutional issue could be implemented by Congress first 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's appellate jurisdiction under the Exceptions Clause. As to the former, the question arises as to whether Congress need allocate any of the authorities delineated in Article III to the federal courts beyond cases decided under the "Original Jurisdiction" of the Supreme Court. In Martin v. Hunter ' s Lessee , Justice Story noted that the Constitution provides that the judicial power "shall" be vested in the Supreme Court, or in the such inferior courts as are created. His opinion thus asserted that it is the duty of Congress to vest the "whole" judicial power where it is so directed, either in the Supreme 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 noted fact 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 maritime jurisdiction, or cases affecting an Ambassador or other public Ministers or Consuls. The vesting of other types of cases cited in Article III (such as cases between citizens of different States) is not so characterized, and thus arguably Congress would have discretion whether or not to establish these powers 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 of specific constitutional issues to state courts with no Supreme Court review would be unconstitutional. This analysis, however, has attracted large amounts of scholarly attention, and there is significant dispute over Justice Story's conclusion. On one hand, at least one commentator asserts that not only is the theory that some federal powers must be vested in the Supreme Court supported by analysis of the text of the Constitution, but that it is also consistent with jurisdictional limitations found in the Judiciary Act of 1789 and subsequent case law. Other commentators, however, have taken issue with this analysis. Absent additional court precedent 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 by legislation under the Exceptions Clause, has been addressed to some extent by the Supreme Court in Ex Parte McCardle. In Ex Parte McCardle , Congress had authorized federal judges to issue writs of habeas corpus. McCardle, the editor of the Vicksburg Times, was arrested by federal military authorities on the basis of various editorials published in his newspaper, and charged with disturbing the peace, libel, incitement and impeding Reconstruction. Claiming constitutional infirmities with his case, McCardle sought and was denied a writ of habeas corpus in an inferior federal court, a decision which he then appealed to the Supreme Court. During the pendency of that appeal, however, in an apparent attempt to prevent the Supreme Court from hearing the appeal, Congress repealed the jurisdiction of the Supreme Court to hear appeals from habeas corpus decisions.

In McCardle , 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 Supreme Court's jurisdiction, the Court noted that it was "not at liberty to inquire into the motives of the legislature. We can only examine its power under the Constitution: and the power to make exceptions to the appellate jurisdiction of this court is given by express words." Consequently, the Supreme Court accepted the withdrawal of jurisdiction over the defendant's case, and dismissed the appeal.

The case of Ex Parte McCardle , while it made clear the authority of Congress to make exceptions to the appellate jurisdiction of the Supreme Court, does not appear to answer the question as to whether all Supreme Court review of a constitutional issue can be eliminated. The Court specifically noted that McCardle had other avenues of review to challenge the constitutionality of his arrest apart from appellate review, namely the invocation of habeas corpus directly by the Supreme Court. Consequently, unlike what would be provided for in some of the court-stripping proposals noted previously, the Supreme Court in McCardle maintained the ability to otherwise consider the underlying constitutional issues being raised.

As noted previously, it would also be the case that court-stripping proposals in this category would raise significant questions of separation of powers. For instance, if Congress were to provide that the Supreme Court were unable to consider constitutional challenges to federal law, this would clearly raise the question of whether Congress was moving to aggrandize Congressional power at the expense of the judicial branch. As noted in section II(B) of this report, under a textual analysis, such aggrandizement or encroachment can be the basis for a finding that such legislation is unconstitutional. Even under a more flexible functionalist approach to separation of powers, the question would arise as to whether such legislation impinges upon a core function of a coordinate branch.

In sum, there is no direct court precedent on the issue of whether Congress can eliminate all federal court jurisdiction over a constitutional issue, and little or no consensus among scholars. The practical consequences of enacting such proposals is also unclear. While it is presently the case that Supreme Court precedent binds state courts, it is not clear if this would continue to be the effect if the states became the court of final resort on a particular issue. Even if existing precedent was adhered to, over time it could become the case that divergent constitutional doctrine would arise in each of the fifty states on any issue where Supreme Court review was precluded. Arguments have been made that such a result would undercut the intention of the Founding Fathers to establish a uniform federal constitutional scheme.

E. Eliminating State and Federal Court Review

A series of lower federal court decisions seems to indicate that in most cases, some forum must be provided for the vindication of constitutional rights, whether in federal or state courts. For instance, in 1946, a series of Supreme Court decisions under the Fair Labor Standards Act of 1938 exposed employers to five billion dollars in damages, and the United States itself was threatened with liability for over 1.5 billion dollars. Subsequently, Congress enacted the Portal to Portal Act of 1947, which limited the jurisdiction of any court, state or federal, to impose liability or impose punishment with respect to such liabilities. Although the act was upheld by a series of federal district courts and courts of appeals, most of the courts disregarded the purported jurisdictional limits, and decided the cases on the 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 any person of life, liberty, or property without due process or just compensation...." The Court has also construed other similar statutes narrowly so as to avoid "serious constitutional questions" that would arise if no judicial forum for a constitutional claim existed.

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, such as political questions cases, where all constitutional review is in effect precluded. Other commentators point to sovereign immunity and the ability of the government to limit the remedies available to plaintiffs. However, the Court has, in cases involving particular rights, generally found a requirement that effective judicial remedies be present. Thus, for instance, the Court has held that the Constitution mandates the availability of effective remedies for takings. These cases would seem to indicate a basis for the Court to find that parties seeking to vindicate other particular rights must have a judicial forum for such challenges.

F. Vesting Judicial Power in Non-Article III Court

Congress has occasionally sought to vest the "judicial power of the United States" in tribunals whose judges do not have the attributes of Article III judges, that is, good-behavior tenure and security of compensation. How is it possible to vest the "judicial power of the United States" in Article I or Article IV tribunals or in tribunals that are located in the executive branch? The Court's explanations have varied over time, and it has vacillated over the permissibility of some such vesting. The doctrine is far from settled.

The importance of this doctrinal area for purposes of this report concerns the power that Congress can exercise over legislative tribunals. Because the officeholders of these tribunals lack Article III security, designed to maintain judicial independence, Congress may limit tenure to a term of years, as it has done in acts creating territorial and local District of Columbia courts and in such tribunals as the Tax Court and others; and it may subject the judges of such courts to removal by the President, and reduce their salaries during their terms. Similarly, Congress can vest nonjudicial functions in these courts that it may not vest in Article III courts. It is obvious that if there is congressional power to create non-Article III tribunals and vest in them jurisdiction over "public rights" and other matters that are traditionally the subject of Article III cases, then Congress has potential leverage vis-a-vis federal courts that can alter federal separation of powers.

IV. Congressional Power Over Judicial Processes and Remedies

Regulation of the procedures and remedies available to a litigant are clearly within Congress' authority. However, just as an exception or a regulation of jurisdiction can constrain the courts in the performance of their duties, so restrictions on judicial processes, such as the ability to afford injunctive relief, can equally constrain the courts. While major interpretive differences have arisen between Congress and the courts regarding the construction of these legislative enactments, the Supreme Court has never expressed any doubt that Congress has the power to enact them. The Court has, however, always left open the possibility that Congress might go too far.

For instance, in 1793, for reasons lost to history, Congress enacted a statute to prohibit the issuance of injunctions by federal courts to stay state court proceedings. While construction of this statute has varied over the years, it remains as an indication that Congress has the power to regulate such judicial process and remedies. During this century, the propensity of the federal courts to issue injunctions to limit labor unions in disputes with management, led Congress to adopt the Norris-LaGuardia Act, forbidding the issuance of injunctions in labor disputes except after compliance with a lengthy hearing and fact-finding process. Although earlier case law appeared to recognize a due process objection to such a restraint, the Supreme Court had no difficulty sustaining the constitutionality of the law in Lauf v. E. G. Shinner & Co .

Congress' power to confer, withhold, and restrict both jurisdiction and equity authority was also powerfully revealed in the cases arising from the Emergency Price Control Act of 1942. Fearful that the price control program might be nullified by injunctions, Congress provided for a special court in which persons could challenge the validity of price regulations issued by the Government from which appeals from the court to the Supreme Court could be taken. The constitutionality of the act was sustained in Lockerty v. Phillips , although those skeptical of the breadth of the law note that the Court itself referred to the fact that it arose in "the exigencies of war."

One modern example of congressional control over the processes of the federal courts is the Prison Litigation Reform Act (PLRA) of 1996. For the last 20 - 30 years, many prisons and jails in this country have been enjoined to make certain changes based on findings that the conditions of these institutions violated the constitutional rights of inmates. Many of these injunctions came as a result of consent decrees entered into between inmates and prison officials and endorsed by federal courts, so that relief was not necessarily tied to violations found. Many state officials and Members of Congress have complained of the breadth of relief granted by federal judges, as these injunctions often required expensive remedial actions.

The PLRA was designed to curb the discretion of the federal courts in these types of actions. Thus, the central requirement of the act was a provision that a court "shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." The most pointed provision of the PLRA in this context is the so-called "automatic stay" section, which states that a motion to terminate prospective relief "shall operate as a stay" of that relief during the period beginning 30 days after the filing of the motion (extendable to up to 90 days for "good cause") and ending when the court rules on the motion.

In Miller v. French , inmates attacked the constitutionality of the "automatic stay" provision, as a violation of separation of powers. By a 5-to-4 vote, the Supreme Court reversed. The Court held that the PLRA did not set aside a final judgment of a federal court, but rather it operated to change the underlying law and thus required the altering of the prospective relief issued under the old law. Secondly, the Court noted that separation of powers did not prevent Congress from changing applicable law and then imposing the consequences of the court's application of the new legal standard. Finally, the Court held that the stay provision did not interfere with core judicial functions as it could not be determined whether the time limitations interfered with judicial functions through its relative brevity.

V. Congressional Power to Revise Specific Judicial Decisions

A. Constitutional versus Statutory Decisions

As the federal courts are the prescribed authorities to interpret the Constitution and to establish precedents, Congress is relatively limited in its ability to change constitutional holdings. The primary route by which Congress can implement such changes is also a difficult one: proposing an amendment to the Constitution and working to secure ratification. The Eleventh Amendment, the first sentence of Section 1 of the Fourteenth Amendment, the Sixteenth Amendment, the Twenty-fourth Amendment, and the Twenty-sixth Amendment were all directed to overturning the results of court decisions. The alternative method of amendment set out in Article V, the congressional calling of a constitutional convention upon petition by two-thirds of the states, has never been successfully used, although an effort to call a convention to propose an amendment to override the "one person, one vote" decision of Reynolds v. Sims fell just one state short.

Congress has, of course, passed legislation which was intended to change the results or effects of judicial decisions. Although the Supreme Court considers itself bound by stare decisis , it is in effect loosely bound, and thus is in a position to consider the positions of its coordinate branches on constitutional issues. Nonetheless, this qualification has not appeared to have concerned the Court in most cases, as the Court has generally invalidated statutes that Congress has enacted to set aside constitutional decisions by the Supreme Court.

B. Pending Decisions versus Final Decisions

Congress has significantly more authority to affect decisions by the federal courts interpreting either statutes or common law than it does regarding constitutional decisions. However, even here Congress is limited to affecting pending or future court decision, not final ones. Thus, in Plaut v. Spendthrift Farm, Inc. , the Court had rendered a final decision determining the limitation period applicable to the filing of securities litigation, finding a much shorter period than had been thought to apply, so that many pending suits had to be dismissed for lack of timely filing. Congress passed a new law, establishing the longer limitations period that had been thought to be applicable, and it authorized refiling of the dismissed suits and adjudication of them. The Court in Plaut held that the federal courts had the authority to render a judgment conclusively resolving a case, and Congress violates the separation of powers when it purports to alter final judgments of Article III courts.

The Court was careful to delineate the difference between attempting to alter a final judgment (one rendered by a court and either not appealed or affirmed on appeal), and legislatively amending a statute so as to change the law as it existed at the time a court issued a decision that was on appeal or otherwise still alive at the time a federal court reviewed the determination below. A court must apply the law as revised when it considers the prior interpretation, even in a pending case. Thus, in Pennsylvania v. Wheeling & Belmont Bridge Co. , the Court had held that a bridge was an obstruction of navigable waters and ordered an injunction issued to abate it. Congress passed a statute pronouncing the bridge not an obstruction of navigable waters, and the Court required the withdrawal of the injunction, inasmuch as it was within Congress' power to regulate commerce and navigable waters.

Similarly, in Robertson v. Seattle Audubon Society , a federal district court had held that the environmental impact statement prepared to support the issuance of logging permits that endangered the spotted owl was inadequate and must be done over. Congress passed a rider to an appropriation act excusing the necessity for the statement, and the Court upheld the new law and its effect on future actions as a permissible change in law. Clearly, however, the difference between Plaut and Robertson is a matter of degree and Congress walks close to the line when it legislates against the background of a decided case.

C. General Cases versus Specific Cases

1. Due Process and Equal Protection

On occasion, Congress has attempted to legislate regarding a specific court case or cases, such as a recent attempt by Congress to intervene in the case of Theresa Marie Schiavo despite court findings that she had previously expressed her desires to not receive medical treatment under certain circumstance. An argument could be made that congressional legislation that applies to a specific court case may be construed as imposing additional burdens on the litigants involved. Legislation that identifies specified individuals to bear additional legal burdens raises issues of due process and equal protection. For instance, in News America Publishing, Inc. v. FCC , the United States Court of Appeals for the District of Columbia applied heightened scrutiny to an act of Congress that singled out "with the precision of a laser beam," a corporation controlled by Rupert Murdoch. Murdoch's corporation had applied for, and received, temporary waivers from the FCC's cross-ownership rules, so that the corporation could acquire two TV licenses, one in Boston, and the other in New York. Subsequently, Congress passed a law that prevented the FCC from extending any existing temporary waivers; at the time, Murdoch's corporation was the only current beneficiary of any such temporary waivers. The corporation sued, arguing a violation of Equal Protection in the context of the First Amendment. Based on this argument, the court evaluated the law under a heightened scrutiny standard, and struck it down.

2. Bill of Attainder

If Congress does legislate regarding a particular court case, this may also raise the issue of the prohibition on Bills of Attainder. Under this provision, Congress is prohibited from passing legislation which "appl[ies] either to a named individual or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial." Generally, the prohibition on Bills of Attainder is intended to prevent Congress from assuming judicial functions and conducting trials.

The two main criteria which the courts will look to in order to determine whether legislation is a Bill of Attainder are 1) whether specific individuals are affected by the statute, and 2) whether the legislation inflicts a punishment on those individuals. The Supreme Court has held that legislation meets the criteria of specificity if it applies to a person or group of people who are described by past conduct, which would seem to include participation in a court case. The mere fact that focused legislation imposes burdensome consequences, however, does not require that a court find such legislation to be an unconstitutional of Bill of Attainder. Rather, the Court has identified three types of "punitive" legislation which are barred by the ban on Bills of Attainder: 1) where the burden is such as has traditionally been found to be punitive; 2) where the type and severity of burdens imposed cannot reasonably be said to further non-punitive legislative purposes; and 3) where the legislative record evinces a congressional intent to punish.

An opinion by the United States Court of Appeals for the District of Columbia specifically addressed the issue of whether a congressional bill addressing a pending court case was a Bill of Attainder. In Foretich v. United States , the court considered a legislative rider to the 1997 Department of Transportation Appropriations Act that provided for specific procedures to be followed in resolving child custody cases in the District of Columbia Superior Court, but was written so narrowly as to apply to just one case. This case involved a protracted custody battle, where allegations of sexual abuse by the husband had been made. Because the child in the case was no longer a minor, the issue of removal of custodianship was declared by the court to be moot. However, the court found that act imposed "punishment" under the functional test because it harmed the father's reputation, and because it could not be said to further non-punitive purpose.

VI. Conclusion

Congress has a wide range of tools available to it to exercise its legislative authorities with respect to the Judicial Branch, and these powers may be used to alter almost all aspects of how the federal courts are organized and administered. However, as with other constitutional authorities, these powers are subject to some constitutional limitations. Although the exact parameters of these limitations have not been established, it is likely the Supreme Court would impose limitations on congressional legislation that did not comply with dictates of due process, equal protection, and separation of powers.