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Federal Courts
Temple University School of Law
Greenstein, Richard K.

Federal Courts


Spring 2012

Judicial Power

A. Congressional Control (1-2)

The jurisdictional categories present in article III contemplate federal judicial power to promote 4 central purposes:

o Protect and enforce federal authority

o Resolve disputes relating to foreign affairs

o Provide an interstate umpire

o Furnish an impartial tribunal where state court bias was feared

· Another divide is that the first three headings base jurisdiction primarily on subject matter, the last 6 are defined primarily by reference to the status of the parties.

Sheldon v. Sill (p.283) – citizen of NY, had bond assigned to him by citizen of MI.

Holding: Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. ‘Courts created by statute can have no jurisdiction but such as the statute confers.’


o Congress restricted jurisdiction of Circuit Courts in Judiciary Act; cannot take on suits to recover contents of promissory note unless the suit might have been prosecuted in such court, to recover the contents, if no assignment had been made.

o Constitution did not ordain and establish the inferior courts and give them their jurisdiction. Congress must define their jurisdiction, meaning they can prescribe certain jurisdictions and withhold others.

Class notes:

· This is a controversy between citizens of different states, so it falls within Article III’s language. But the Judiciary Act of 1789 creates additional qualification.

· The courts won’t come out of the Constitution, but rather out of the Congress. The creation of the courts will be a political solution and Congress would have to tread lightly in creating the courts.


· SC being worried about coming down too hard on states rights.

· Legal limits on the power of the federal judiciary come from both the Constitution and from statutes passed by Congress, but they are not necessarily congruent.

· What is at the heart of this problem, whether Congress can limit powers of the federal courts, is the balance of federalism and its relationship with separation of powers.

Ex Parte McCardle (1869) (p285)

Facts: Congress passed 1867 Act to establish federal habeas corpus jurisdiction to review cases of newly freed blacks. Authorized appeals from some circuit courts to the Supreme Court.

McCardle (editor of newspaper) arrested under Military Reconstruction Act ,which had placed 10 states under military jurisdiction. McCardle brought suit in Circuit court arguing that Military Reconstruction act was unconstitutional. Circuit ct denied the petition and McCardle appealed to the Supreme Court. Before the Court accepted, Congress repealed the 1867 Habeas Corpus Act.

Holding: The Supreme Court does not have jurisdiction now that the Act of 1867 has been repealed. Unless Congress gives an affirmative grant of power, the Supreme Court does not have jurisdiction.


· Power of lower courts comes from the Constitution but regulation and limitations come from Congress

· The Supreme Court may look only at whether Congress had the power (under the Constitution) to act as it did, not evaluate its motivations.

· Precedent supports restrictions of federal judicial power.

· Politics: Congress was worried that the Supreme Court would rule Reconstruction unconstitutional.

o The court says this is irrelevant. Question is “does Congress have the power?” Motivations are irrelevant.

US v. Klein (p 303)

Facts: Law had been that presidential pardon showed that a person was not a rebel in the Civil War. Then it changed to say that pardon was conclusive proof that a person WAS disloyal and therefore denied them of federal claims (to receive compensation for their property seized during the war).

Holding: Congress’s action was unconstitutional. Congress cannot direct the results of a case.


· Congress is trying to hold people guilty by passing a law. Encroaching on the role of the judiciary to hear cases.

· Also redefining the executive’s power (presidential power) contrary to separation of power

· Here, the court does seem to considered motivations.

· Precedent that Congress cannot restrict federal court jurisdiction (or at least to the extent that it violates other provisions of the Constitution)

Note (1) (p314): The Suspension Clause (Article I, S. 9, cl. 2) specifically prohibits suspension of the write of habeas corpus unless there is a case of rebellion/invasion/public safety.

Note (4) (p318): Suspension Clause and the War on Terror

· US can detain enemy combatants under the laws of war.

· Question arose as to whether an alien can be detained.

o At first, Rasul v. Bush said yes.

o Then the Detainee Treatment Act said that aliens that are enemy combatants do not fall under habeus corpus jurisdiction.

o The Military Commissions Act added that even aliens being considered for enemy combatant status were excepted.

o DTA and MCA created judicial review by executive/military branch

o Supreme Court in Boumediene v. Bush ruled that DTA and MCA violated the Suspension Clause by not providing access to courts

B. Judicial review (3)

Marbury v. Madison (p.58)

· Holding: SC has the power to decide when a law conflicts with the Constitution, and when it does the Constitution must take precedent.

o And Congress has no power to change original jurisdiction of the SC.

· Reasoning:

· The judiciary act of 1789 grants original jurisdiction over writs of mandamus, but this power was not included in the Constitution. Marshall says Congress cannot add to the original jurisdiction set forth in the Constitution in Article III.

· This means the Constitution and the Judiciary Act of 1789 go against each other. In such a case judicial review should be adopted and Court shall have the power to essentially void the lesser law.

· The supremacy clause of the Constitution and the language used gives further evidence that it is the highest law and any law conflicting with it loses out to the Constitution.

Class notes: Powers asserted by CJ Marshall

Power to make executive appointments follow the law.

Power to review constitutionality of acts of congress

Make it impossible for either branch to really retaliate against the Court.

· Everything up to this point is dicta. Ultimate holding is that it has no authority to issue holding. None of these other things matter since the court cannot hear the case. But in the process of getting to this real issue, the SC has clearly asserted that when a Sec’y of State has a legal obligation to do something, the judiciary in principle has the authority to require that official to do something.

· Court says it does not

rize it (similar to Jeff letter re: the opinion clause…Const. doesn’t say Supreme Ct. cant give advisory opinions but does says that cabinet canàtherefore negatively implying that supreme ct. can’t).

· Is it unconstitutional just b/c they are called judges? What if they called them commissioners? Judges say they could accept but they want to avoid non-judicial functions.

o Practical consideration: like Jeff. Letter might undermine their authority but also take away from their resources

o Constitutional considerations less clear (?)

Tutun v. US (1926)(BB)

Facts: Question presented whether the Circuit Court of Appeals can review decree of District Court denying petition for citizenship. Act passed by Congress gave district courts jurisdiction to consider naturalization and Circuit Courts power of final decision.

Holding: Circuit Courts have jurisdiction to review by appeal. Naturalization counts as a case.


· Basically says this is judicial b/c it has been in the jurisdiction since govn’t was founded so it must be within the jurisdiction. Jurisidiction had never been challenged.

o Tradition isn’t a separation of powers issue. Can help us define. At some point, it was an issue (when Congress passed the Act…administrative function per Hayburn) but now that its been relied on and incorporated…now it is judicial

· So why was this even a case?

o B/c typically naturalization cases are not adversely. The US can come in if they want but its not intrinsically adversarial.

· Where there is a remedy enforceable in the courtsà it is a case within the meaning of the Constitution

o Doesn’t matter if there is also an option for administrative resolution

o US can always intervene, can always be the adversary, and then it becomes legal

US v. Johnson (1943)(p94)

Facts: landlord collects rent from tenant in excess of what is permitted by rent control from WWII. Tenant sues. Complaint dimissed b/c law prohibited the excess rent (rent control) is unconstitutional.

Holding: Decision vacated, should have granted motion to dismiss.


· No adversaries

o Collusive à not a real case/controversy

· Concern is that you won’t get a fair result without true adversaries

o Judges are passive and truth comes out through the argument

· Court doesn’t say that anything collusive has to be dismissed but it may and here it should b/c there was such a risk of harm.

o Not constitutionally required. Rather a policy decision.

Features of Common Law Litigation

1. Actually litigated (not just advisory?)

2. Not Collusive, truly adversarial (problem in Johnson)

3. Concrete facts not abstract (problem with Jefferson letter)

4. Finality of judgments