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Federal Courts and Jurisdiction
Temple University School of Law
Sonenshein, David A.

Federal Courts


Article III
– Article III begins by stating that:
a. The judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress may, from time to time, ordain and establish…
– These initial words created a federal judicial system
– A dispute at the Constitutional convention was whether lower federal courts should exist
– Some argued that lower federal courts were unnecessary because state courts, subject to review by the Supreme Court were sufficient
– Others such as James Madison expressed distrust in the willingness or ability of state courts to uphold federal law
– The compromise, therefore was to constitutionally require a Supreme Court and allow Congress to decide whether to create inferior federal courts
– Second, Article III ensures the independence of the federal judiciary by according all federal judges life tenure “during good behavior” and salaries that shall not be decreased during their time in office
– Third, Article III defines that federal judicial power in terms of nine categories of “cases” or “controversies”
– The judicial power extends to all cases and controversies involving:
a. The Constitution
b. U.S. treaties
c. U.S. laws
d. The U.S. as a party
e. Ambassadors and other public ministers and consuls
f. Admiralty and maritime jurisdiction
g. Two or more states
h. Interstate disputes
i. A state and/or its citizens and a foreign country and/or its citizens
– Finally, Article III states that the Supreme Court has original jurisdiction over the following cases affecting:
a. Ambassadors and other public ministers and consuls
b. States as parties
– In all other cases, the Supreme Court has appellate jurisdiction subject to “such exceptions and under such regulations as Congress shall make”


Congressional Restriction of Jurisdiction of Lower Federal Courts
Sheldon v. Sill
– Article III states that the judicial power shall be vested in one Supreme Court and in “such inferior courts as the Congress may. From time to time, ordain and establish
– In Sheldon, the Court stated that Congress, having the power to establish lower federal courts, also has the power to define their jurisdiction
– Having the power to prescribe jurisdiction, Congress may also withhold from lower courts any of the enumerated controversies in Article III (Sheldon)
– Federal courts created by statute have NO jurisdiction but such as the statute confers (Sheldon)
– Thus, a statute that prescribes the jurisdiction of lower federal courts is not unconstitutional unless it confers jurisdiction over a controversy that is not enumerated in Article III (Sheldon)
– One way to understand why the ratifiers would give Congress the power to regulate the jurisdiction of lower federal courts is to look at the Madisonian compromise
– Allowing Congress to have some of the judicial power would allow a democratically elected branch to calibrate the federal judiciary vis-à-vis the states
– Thus, implicit in the separation of powers issue is a federalism issue

Congressional Restriction of Jurisdiction of the Supreme Court
Ex Parte McCardle
United States v. Klein
– Article III §2 states that:
a. The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as Congress shall make.
– In Ex Parte McCardle, a newspaper editor in Mississippi was jailed under the Reconstruction Act for writing a series of articles that were critical of Reconstruction
– Those jailed pursuant to the reconstruction act were to be tried by military commission
– McCardle filed a petition for writ of habeas corpus pursuant to an 1867 federal law that permitted federal courts to grant habeas relief to anyone who was held in violation of the Constitution by the federal or a state government
– Thus, under the 1867 law, the Supreme Court held appellate jurisdiction over habeas cases
– In 1868, while McCardle’s case was being heard, Congress passed a law that stripped the Supreme Court’s appellate jurisdiction over habeas cases
– The Supreme Court held that it could not decide McCardle’s case because of Congress’s authority to create exceptions and regulations to the Court’s appellate jurisdiction
– Although the Supreme Court’s authority to hold appellate jurisdiction stems from the Constitution, it is “conferred with such exceptions and under such regulations as Congress shall make” (McCardle)
– Justice Chase stated:
a. We are not at liberty to inquire into the motive of the legislature, We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words
– The McCardle Court concluded by stating that the 1789 judiciary act created “exceptions by negative implication” to the Supreme Courts appellate jurisdiction
– Thus, if the 1867 habeas act had not been enacted, the Supreme Court would not have had appellate jurisdiction over state habeas cases because such jurisdiction was not affirmatively given by the 1789 judiciary act
– But McCardle can be contrasted with United States v. Klein
– Klein involved an action by an administer of an estate to recover property seized by the federal government during the Civil War
– Statute required that owners of property may have it returned upon proof of loyalty
– The Supreme Court had previously ruled proof of loyalty may be proved by showing a presidential pardon
– Klein won in the Court of Claims and the government filed and appeal
– Before the appeal was heard, congress passed a law stating that a presidential pardon was proof of disloyalty and directs the court to dismiss any pending claims based on pardon
– The found the statute unconstitutional and stated that:
a. denial of jurisdiction to this court is founded solely on the application of a rule of deci

hat the Court has the power to declare laws unconstitutional because it is “emphatically the province and duty of the judicial department to say what the law is”
Requirement of a “Case” or “Controversy”
The Jefferson Letter
Hayburn’s Case
Tutun v. United States
United States v. Johnson
– Article III §2 defines the federal judicial power in terms of “cases” and “controversies
– The requirement of a case or controversy places constitutional limits on the federal judicial power
– One of the limitations imposed by the requirement is that the federal courts cannot issue advisory opinions
– There are several policy reasons for the prohibition on advisory opinions, including:
a. Separation of powers: This is maintained by keeping the federal courts out of legislative or executive processes. The judicial role is limited to deciding actual disputes; not giving advice to Congress of the president.
b. Practicality: Judicial resources are conserved because advisory opinions might be requested in many instances in which the law may ultimately not pass the legislature, or where the department would not heed the court’s advice
c. Actual disputes: The prohibition ensures that specific disputes will be presented to the courts, not hypothetical legal questions.
– In order for a case to be justiciable and not an advisory opinion, three criteria must be met:
a. There must be an actual dispute
b. Between two adverse litigants, and
c. There must be a substantial likelihood that a federal court decision would be final on the matter
– First, there must be an actual dispute
– During the Washington administration, Secretary of State Thomas Jefferson sent a letter to the justices with questions concerning America’s neutrality in the war between France and England
– The justices refused to answer Jefferson’s questions, stating:
a. The three departments of the government…being in certain respects check upon each other, and our being judges in a court of last resort, are considerations which afford strong arguments against the propriety or our extra-judicially deciding the questions alluding to.
– Ever since The Jefferson Letter, it has been established that federal courts cannot decide a case unless there is an actual dispute between adverse litigants
– This means, secondly, that the parties must be “adverse” – there must be a real controversy between them