A Guide to Theories Concerning Congressional Control of Federal Jurisdiction
I. Central Problem: How to reconcile (1) Article III Section I "shall be vested" language and Section 2 "shall extend" language with (2) Madisonian Compromise (Congress need not create inferior federal courts) and Exceptions and Regulations clause.
II. 2 critical issues
A. When can Congress strip federal courts of jurisdiction (and shunt matters to state courts or to no court at all)?
B. When may Congress permit Legislative (Article I) courts or administrative agencies to decide cases?
III. Case law on jurisdiction stripping
A. Foundational Cases
1. Sheldon v. Sill
§ Potential Problem: relies on the greater/lesser power syllogism (Since Congress need not create lower federal courts, any limits it puts on them are constitutionally acceptable.)
§ Conflicting Readings Available: (broad plenary power vs. narrow diversity reading)
2. Ex Parte McCardle
§ Problem: Historical circumstances made the case unusual and perhaps render it a poor precedent.
§ Conflicting Readings Available (Broad vs. narrow reading about other means of getting to S.Ct. -- See penultimate paragraph in case.)
w Possibly qualified by Ex Parte Yerger (habeas corpus)
3. Martin v. Hunter's Lessee (Justice Story)
§ dicta
§ contains three inconsistent arguments, set out in casebook on pp. 331-34).
4. U.S. v. Klein (p. 339)
§ Case involving pardons after the Civil War.
§ Cryptic, impenetrable opinion -- multiple readings available, as discussed in class. In many readings, suggests either that Congress cannot violate another provision of the Constitution in stripping federal courts of jurisdiction or that Congress may not tell federal courts how to decide particular cases once it confers jurisdiction.
B. 20th Century Cases
1. Preclusion of judicial review allowed (to some extent)
§ Lauf v. Shinner (Norris-LaGuardia Act case) (1938) -- cryptic (p. 335-36)
§ Yakus v. United States (Emergency Price Control Act criminal case) (p. 359) (exhaustion of remedies holding; important dissent by Justice Rutledge)
§ WW II Selective Service Act cases (Falbo and Estep, p. 374)
2. Preclusion of judicial review rejected: Battaglia v. General Motors Corp (2d. Cir. 1948) -- Portal to Portal Act case: uses due process clause of 5th Amendment to reject idea that Congress may take jurisdiction away from all courts over constitutional questions "in whole or part."
3. Clear Statement Rule applied
§ Webster v. Doe (p. 347, (holding that a no judicial review statute not to be specific enough to preclude judicial review of a constitutional claim)
§ U.S. v. Mendoza-Lopez (p. 361, 375, holding that a prior administrative adjudication that was not subject to judicial review cannot be used to establish an element of a criminal offense )
§ Felker v. Turpin (p. 340, statute not specific enough to preclude habeas corpus review in a capital punishment case)
§ INS v. St. Cyr (p. 353, statute not specific enough to preclude habeas corpus review in a deportation case)
IV. External Constraints on Congressional Jurisdiction Limitations
A. All agree that a jurisdictional limitation must fail if it violates a part of the Constitution outside of Article III
B. Prime Examples
1. "Litigant Gerrymanders" (e.g., African-Americans can't bring cases in federal court)
2. Article I, Section 9, clause 2 limitation on the suspension of the writ of habeas corpus.
3. Query: Do Subject Matter Gerrymanders (i.e., Congress precludes federal jurisdiction over abortion or establishment clause cases) violate an external limit too? (L. Tribe theory, subsequently recanted in part.)
C. Most scholarly debate has focused not on these "external constraints," but rather on constraints internal to Article III. The rest of this outline lays out three different views of the limits Article III places on congressional control over federal jurisdiction.
V. Major Theory #1: Orthodox, Plenary Power View
A. Proponents: Herbert Wechsler, Paul Bator, Martin Redish, Gerald Gunther, Jesse Choper, Michael Perry, Charles Black.
B. Basic Claim: Sheldon + McCardle = Plenary power to regulate the jurisdiction of the federal courts.
C. Theroetical Basis #1: Dispute Resolution Model: Courts interpret the Constitution only in the course of deciding cases; Congress therefore has plenary power to decide when federal courts can decide cases.
1. Note how he rejects the Hart view ("There is...a school of thought that argues that 'exceptions' has a narrow meaning...I see no basis for this view...")
2. "Federal courts...do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police the other agencies of the government. They do so rather for the reason that they must decide a litigated issue that is otherwise within their jurisdiction and in doing so must give effect to the supreme law of the land. That is, at least what Marbury v. Madison was all about."
3. Assumes parity between federal and state courts. Being forced to litigate in state court is not a burden, since state judges are required by the Supremacy Clause to enforce federal law and the federal constitution.
D. Theoretical Basis #2: Unfettered congressional control gives judicial review legitimacy and helps defeat the problem of judicial review being "counter-majoritarian." It ensures a "healthy tension" between the courts and Congress. It is, according to Charles Black, "the rock on which rests the legitimacy of the judicial work in a democracy."
VI. Major Theory #2: Dissenting View -- Mandatory Federal Jurisdiction Theory --
A. Akhil Amar = Chief Proponent (see also the other versions elaborated by Clinton, Sager, Eisenberg, & Pushaw). See 65 B.U.L. Rev. 205 (1985).
B. Argues that Article III requires Congress to vest some jurisdiction in some federal courts
C. Draws inspiration less from Sheldon and McCardle than from Martin v. Hunter's Lessee
D. 2 Tiers of federal jurisdiction
1. Mandatory Tier: federal question, admiralty, & ambassador cases. Textual Support: the "all cases" language of Article III.
2. Permissive Tier: the remaining fonts of jurisdiction labeled as mere "controversies," such as diversity, etc. The claim is that these are truly discretionary.
3. Exceptions and regulations clause allows Congress to limit Supreme Court appellate jurisdiction; Congress may also choose not to create inferior federal courts. It may NOT, however, do both in mandatory tier cases.
E. The use of the word "all" in the first tier means to Amar that Congress is constitutionally-required to vest a federal court (either Supreme or inferior) with jurisdiction over all federal question cases (as well as admiralty and ambassador cases).
F. Premised on parity of all federal judges (i.e., district judges and S.Ct justices stand on equal footing as far as Article III is concerned) and dis-parity between state and federal judges (who enjoy tenure & salary protections; Presidential appointment & Senate confirmation; impeachment as only means of removal)
1. So -- this theory does not require any appellate jurisdiction over cases heard by lower federal courts
2. Similarly, it sees nothing inappropriate in appeals from highest state court to federal district courts, given the parity between all federal judges.
3. Provides nuanced textual and structural support for Neuborne's views on superiority of federal courts for protecting federal rights.
G. Implication: Renders the withdrawal of federal jurisdiction over any set of federal question cases clearly unconstitutional.
VII. Major Theory #3: Modified Orthodoxy (Henry Hart's Dialogue) -- [66 Harv. L. Rev 1362 (1953)]. (1) Does not read McCardle "for all it is worth." (2) Assumes parity between Federal and state courts. (3) Concerned with limiting reach of administrative state. (4) Less sanguine than the Orthodox view about the virtues of plenary congressional power to regulate federal jurisdiction. Below, I offer a reading of Hart's complex dialogue, discussing six moves that Hart makes for limiting congressional control over federal jurisdiction. These moves -- three limitations on Congress and three techniques courts and litigants can use to enforce those limitations -- offer a veritable toolkit for arguing about the legitimacy of congressional restrictions on federal court jurisdiction.
A. Limitation #1: Congress may not destroy the "essential role" of the Supreme Court in the constitutional plan
1. Purposes served:
§ uniformity of federal law
§ ensure supremacy of federal law
2. Textual support:
§ Article III requires creation of one S.Ct.
§ Exceptions and regulations to S.Ct. jurisdiction must be just that -- exceptions to jurisdiction, not total withdrawals of it
3. Case law support: Embraces Sheldon fully; reads McCardle narrowly (p. 394 of handout from 3d edition of H & W).
4. Theoretical/first principles support: Constitution does not "authorize its own destruction."
5. Problem: Vagueness of the standard. (Just what is the Supreme Court's "essential role"?)
§ Solution?: It is not clear until the end of the Dialogue when this "essential function" restriction would come into play. There is a hint dropped, though, on p. 394, when Hart states that the Court has never adopted this theory because "Congress so far has never tried to destroy the Constitution."
B. Limitation #2: When Congress chooses to use an Article III court to apply coercive power, the court must apply the whole law, including the Constitution, independently.
1. Congress may not, consistent with Article III, put strings on the jurisdiction it gives federal courts -- the Klein Principle, as Hart reads it.
§ Thus, IF Congress vests federal courts with authority to decide a case, Congress cannot limit what the court can do once it exercises that jurisdiction; it cannot limit the court's ability to decide the whole case, including all defenses and constitutional questions raised by the litigant.
§ "My point is simply that the difficulty involved in asserting any judicial control in the face of a total denial of jurisdiction doesn't exist if Congress gives jurisdiction but puts strings on it.... [I]f Congress directs an Article III court to decide a case, I can easily read into Article III a limitation on the power of Congress to tell the court how to decide it." (400).
w SO: Article III itself does not guarantee a hearing in federal court and, indeed, does not regulate the extent of federal jurisdiction; that is entirely up to Congress which, limited only by external constraints, may prefer to rely on state courts.
w BUT Article III DOES limit the power of Congress to tell a court how to decide a case
2. Congress, in Hart's view, needs federal courts and so is unlikely to withdraw jurisdiction entirely: "[S]o long at least as Congress feels impelled to invoke the assistance of courts, the supremacy of law in their decision is assured." (407)
§ Since Congress will likely want federal courts to enforce the laws, and since Congress can't put strings on the courts' jurisdictions, Congress' need for enforcement will, as a byproduct, protect the rule of law by empowering courts.
§ "Name me a single Supreme court cases that has squarely held that, in a civil enforcement proceeding, questions of law can be validly withdrawn from the consideration of the enforcement court where no adequate opportunity to have them determined by a court has been previously accorded. When you do, I'm going back to re-think Marbury v. Madison." (404)
C. Limitation #3: Congress' Power to Regulate Jurisdiction Does Not Include the Power To Regulate Rights.
1. The "mere power to regulate jurisdiction" cannot be transformed "into a power to affect rights having nothing to do with jurisdiction" (399). Hart identifies two mechanisms for implementing this principle.
2. Mechanism One: The "judicial power" includes the authority to grant a constitutionally appropriate remedy, and Congress consequently may not preclude a court from doing so.
§ To be sure, in addition to its freedom to decide the extent of the federal court's jurisdiction, Congress "necessarily has a wide choice in the selection of remedies," and its substitution of one remedy for another is "rarely of constitutional dimension" (395). But Congress' power to decide which remedy a person may have, and its power to decide from which court a person may seek the remedy, does not permit all remedies to be abolished.
§ However, "a total denial of any remedy, in either the state or federal courts, [is] not a mere regulation of jurisdiction." (408)
§ Why may Congress not restrict remedies? Because "[n]o democratic government can be immune to the claims of justice and legal right" (399). This seems to be a fundamental axiom for Hart, the essence of the constitutional system.
3. Mechanism Two: a jurisdictional limitation may not abridge someone's constitutional right to judicial process when due process demands access to a court. (see 410-20).
§ This is particularly so in cases where the government is taking coersive action against a person.
§ Due Process is therefore an important external constraint on congressional efforts to cut courts out of the loop.
§ "A necessary postulate of constitutional government [is that] . . . a court must always be available to pass on claims of constitutional right to judicial process, and to provide such process if the claim is sustained." (399)
4. Here is perhaps another way of formulating these two points: A litigant has a right to have a claim heard in a court when, and only when, she has a constitutional right to a remedy. Congress may preclude judicial review only when an adequate judicial remedy is not constitutionally required.
D. Technique #1: A court always has jurisdiction to determine whether it has jurisdiction. It may use this general power to strike down unconstitutional limitations on its jurisdiction.
1. Wechsler believed that Sheldon and McCardle gave Congress unrestricted power to undermine rights by controlling jurisdiction (398, 1st para.). To limit this possibility, Hart suggests that Courts have an inherent, "protective" jurisdiction to disregard unconstitutional jurisdictional restrictions.
2. "[T]he validity of the jurisdictional limitation depends on the validity of the program itself, or the particular part of it in question. If the court finds that what is being done is invalid, its duty is simply to declare the jurisdiction limitation invalid also, and then proceed under the general grant of jurisdiction" (411).
§ A Court can therefore disregard unconstitutional jurisdictional limits and fall back on their prior general grant of jurisdiction.
§ Why? Because of the "great and generating principle of this whole body of law -- that the Constitution always applies when a court is sitting with jurisdiction" (either in habeas corpus or under its Section 1331 general federal question jurisdictional grant.)
3. Indeed, Marbury requires that a court look beyond what Congress has said in order to see whether it is consistent with the Constitution (417-18).
E. Technique #2: Clear Statement Rule: pp. 421-22:
1. But if push were to come to shove, Hart concedes that the hurdles he has thus far placed in the path of Congress won't hold up. Its almost as if Hart recognizes how esoteric and difficult to implement his prescriptions have been thus far.
§ "Habeas corpus aside, I'd hesitate to say that Congress couldn't effect an unconstitutional withdrawal of jurisdiction -- that is, a withdrawal to effectuate unconstitutional purposes -- if it really wanted to."
2. He therefore proposes "stalling" -- "the court should use every possible resource of construction to avoid the conclusion that" Congress wanted to withdraw federal court jurisdiction. (See also 399 first paragraph last sentence).
3. This serves several purposes. It (1) helps resist encroachments that come close to the constitutional line and shifts the burden of inertia back to Congress, (2) requires Congress to rethink its position, and (3) gives the voters the opportunity to offer another check.
§ "In the end we have to depend on Congress for the effective functioning of our judicial system, and perhaps for any functioning. The primary check on Congress is the political check -- the votes of the people. If Congress wants to frustrate the judicial check, our constitutional tradition requires that it be made to say so unmistakably, so that the people will understand and the political check can operate."
F. Technique #3: The State Courts (last page)
1. What if all the limitations Hart has proposed thus far don't work? Like a deus ex machina, the state courts drop in at the last minute to save the day: "In the scheme of the Constitution, they are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones" (423).
2. How can the state courts save us from a Congress determined to take away our rights? Here, in just a few lines, Hart deploys virtually all of the moves he made previously.
§ First, state courts enjoy general jurisdiction.
§ Second, they have the same protective jurisdiction to strike down unconstitutional restrictions on their jurisdiction as federal courts.
§ Therefore, if Congress restricts both state and federal jurisdiction in a way that prevents a litigant from (a) enjoying the judicial process due to her or (b) getting a constitutionally-required remedy, then the state courts may strike down that restriction as unconstitutional and, acting under their general jurisdiction, provide the required process and/or remedy.
§ The Supreme Court's "essential function," which Hart would prevent Congress from restricting, in the end seems to be this: to ensure that state courts don't cave into unconstitutional congressional restrictions on their jurisdiction and instead act pursuant to the "independence principle" elaborated in the previous sentence.
§ Moreover, the Klein principle prohibits Congress from giving the Supreme Court jurisdiction only to reverse a state court that disregards a congressional limitation on its general jurisdiction. "Jurisdiction always is jurisdiction only to decide constitutionally."
3. Note the pessimism that ends the dialogue, as he envisions all of his proposed solutions falling apart: If state courts "were to fail, and if Congress had taken away the Supreme Court's appellate jurisdiction and been upheld in doing so, then we'd really be sunk."
G. Question for further thought: Hart relies, at times heavily, on the distinction between enforcement actions brought against people and actions brought by individuals seeking benefits that have been withheld. Can Hart's insights be retooled to cover the later situation? If so, how? We will discuss this problem further in the context of Crowell v. Benson and judicial review of the administrative state.