Federal Courts-Fall 2011-Gil Seinfeld
CONGRESSIONAL CONTROL OF FEDERAL JURISDICTION
A. Power of Congress Over the Jurisdiction of Article III Courts
I.
A. Madisonian Compromise:
1.) At the Convention delegates disputed whether the Constitution should mandate lower federal courts or whether there should be any power to create such courts
2.) Madison’s resolution provided that Congress is authorized but not obliged to ordain and establish federal tribunals inferior to the Supreme Court
a.) Such power has generally been understood to include the power to create lower federal courts vested with less than the maximum jurisdiction that the Constitution would allow
B. Constitutional support for argument that Congress cannot create jurisdiction stripping statutes;
1.) Article III §1 states that the judicial power “shall be vested”
C. Rebutting Article III Argument:
1.) Complete federal jurisdiction (all courts open) is dismissed by 1789 Judiciary Act
a.) Act is considered deeply probative of Article III §2
D. Three questions regarding limiting Federal court jurisdiction:
1.) Power of Congress to limit the jurisdiction of the lower courts on matter that continue to be within the original jurisdiction of the state courts and the appellate jurisdiction of the Supreme Court
2.) Power of Congress to limit the appellate jurisdiction of the SC over cases that continue to be within the jurisdiction of the lower courts
3.) Power of Congress to withdraw certain matters from jurisdiction of all federal courts
II. Excluding cases from lower federal courts (p. 287):
A. Would make nonsense of the Madisonian Compromise to hold that the only power to be exercised is the all-or-nothing power to decide whether none or all of the cases which the federal judicial power extends need the haven of a lower federal court
B. Mandatory Theories: Justice Story (p. 288)
1.) Martin v. Hunter’s Lessee:
a.) First, Justice Story argues that Congress is obligated to vest all of the judicial power “either in an original or appellate form” in some federal court
b.) Second, he argues that if any described in Art. III are beyond the jurisdiction of the state courts, and thus not capable of review on appeal from a state court to the Supreme Court, Congress would be obligated to create inferior federal courts in order that these cases might be entertained in some federal court
c.) Third, Story restricts any congressional obligation to the first three categories of cases described in Art. III – to those in which the Constitution used the adjective “all”
2.) For Story, Art. III is satisfied so long as a case falls within either the lower federal courts’ jurisdiction or the Supreme Court’s appellate jurisdiction over state court judgments
3.) Even if Congress did not attempt to limit SCOTUS appellate jurisdiction could a problem arise? (see pp. 290-91 for two instances where it might)
C. Internal v. External Restraints (p. 292)
1.) Internal Restraints theory – Art. III does not restrict Congress’s power to limit lower federal court jurisdiction
a.) Sheldon v. Sill dictum
2.) External Restraints may still exist – restrictions imposed by other constitutional provisions such as the equal protection component of the 5th A’s Due Process Clause
D. Norris-LaGuardia Act (p. 292)
1.) Lauf – “there can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the U.S.
III. Congressional Power Over the Supreme Court’s Appellate Jurisdiction (p. 294)
A. Exception Clause: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”
B. Congress’s power to limit the Supreme Court’s appellate jurisdiction is presumably subject to the same external limits as is the power to define the lower courts’ jurisdiction
C. Do internal limits on Congress’s authority to create exceptions exist? (p. 295)
1.) Term exception implies the allowance of deviation from a general rule, and thus the clause implies reduction less than the whole
a.) If Congress could strip all appellate review of SCOTUS, it would not make sense to call it the exceptions clause
2.) Hart’s Essential Function Hypothesis (p. 296)
a.) “Exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan”
b.) How does Hart know what central functions are?
i.) Ask what the court is for and consider the history leading to ratification
ii.) Essentially asks what are the costs of not having SCOTUS (reasoning from constitutional structure)
3.) Expanding on Hart’s hypothesis, Professor Ratner states that to be constitutionally valid, exceptions to the Court’s appellate jurisdiction must not negate the Court’s “essential constitutional functions of maintaining the uniformity and supremacy of federal law”
4.) Flaws Exist in Essential Functions Theory:
a.) 1789 Act left significant gaps in SCOTUS jurisdiction
i.) Lack of jurisdiction to review state court decisions upholding claims of federal rights
b.) If maintaining the supremacy of federal law is an essential function, is any scope left for the exceptions power in cases where there is an asserted conflict between federal law and state conduct
5.) Wechsler View (p. 297) – Federal courts do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police other agencies of the gov’t; they do so rather for the reason that they must decide a litigated issue that is otherwise within their jurisdiction
D. Felker v. Turpin (1996), p. 297
1.) FACTS:
a.) Antiterrorism & Effective Death Penalty Act authorized second petitions for H.C. only if first authorized by the court of appeals
i.) Act provided that decisions by the courts of appeals in its gate keeping capacity were not appealable nor subject of a petition for rehearing, nor for a writ of certiorari
2.) If McCardle was strong precedence all Corut had to say was “See McCardle”
a.) Instead Court says it does not need to worry about constitutionality because Act does not fully strip SCOTUS of appellate jurisdiction b/c you can file original H.C. petition
b.) This reading is implausible given reading of Act and is an example of constitutional avoidance
3.) Court noted that principle of statutory interpretation established in Yerger which disfavors implied repeals of the SC’s appellate jurisdiction
IV. Congressional Power to Withdraw All Federal Jurisdiction (p. 300)
A. Such limits have been accepted historically with respect to diversity cases, but what about cases arising under federal law
B. Justice Story Redux:
1.) Suggests that all permissible jurisdiction must be vested in an Art. III court in either original or appellate form
a.) Theory is embarrassed by the Judiciary Act of 1789
C. Professor Sager
1.) Constitution requires either original or appellate federal jurisdiction of constitutional claims
2.) Rests on the premise that these are the cases in which, in light of the history and logic of the Constitution”, there is the largest constitutional interest in adjudication by a federal judge
D. Professor Amar: Two Tiers of Federal Jurisdiction (p. 300)
1.) Art. III requires the vesting of either original or appellate federal jurisdiction in three of the categories of cases listed in Art. III
a.) Relies heavily on the selective use of the word “all” in Art. III § 2
2.) Tier 1: comprised of the first three categories in which federal jurisdiction is mandatory in “all Cases”
3.) Tier 2: comprised of the remaining six categories, in which the decision whether to vest federal jurisdiction is a matter for Congress to decide
4.) Amar’s Support:
a.) 1789 Act was reasonably consistent with the two-tiers
b.) Lang. supporting tiers appears in early cases including Hunter’s Lessee
c.) Accords well with the structure of the Constitution, by ensuring adjudication in the cases of most profound national consequence by federal judges
4.) Argument accounts for both the Madisonian Compromise and the Exceptions clase but problems with the argument are:
a.) Not consistent with history of 1789 Act – some cases arising under federal law were excepted from all federal courts
E. What is wrong with stripping all federal jurisdiction?
1.) Federal Judges Holy Trinity:
a.) Judicial Independence – state judges are not protected to push back on majoritarian laws
b.) Greater expertise in interpretation and application of federal law
c.) Uniformity
2.) Can state judges be counted on to vindicate federal claims?
a.) Popular belief was that state judges were hostile to federal claims
b.) However the claim is historically and geographically contingent
i.) Southern state judges in the 1950’s were less likely to support federal civil rights claims
ii.) But New England state judges in the early 2000’s have been willing to recognize same-sex marriage rights
c.) Ideological make-up of federal judiciary has changed dramatically since Reagan
3.) Argument: Congress should not be permitted to accomplish indirectly (through jurisdictional gerrymandering) what it is unable to accomplish directly
ACTS:
1.) FLSA created federal entitlement to overtime pay
a.) SCOTUS interpreted the statutory term “work week” as including underground travel and similar preliminary and incidental activities
b.) Such activities had not previously been regarded as compensable and thus created massive FLSA liability
2.) Congress later enacted Portal Act of 1947 eliminating substantive liability that SCOTUS recognized and stripped jurisdiction of all claims relying on the SCOTUS interpretation previously filed in state or federal court
B.
1.) Exercise of Congress’s control over jurisdiction is subject to the requirements of the Fifth Amendment
a.) May not exercise power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation
b.) Thus if stripping had the effect of depriving plaintiff of property without due process or just compensation it would be invalid
2.) Three Ways to view employees’ rights to compensation for activities (p. 307):
a.) Wholly statutory up to the time the Portal Act was enacted
b.) Purely statutory up to the time of the SCOTUS decisions and contractual thereafter
c.) Wholly contractually from the beginning
3.) Statute not unconstitutional:
a.) Act did not attempt to change SCOTUS decisions or to impose upont he courts any rule of decision not in conformity with basic legal concepts
B. Habeas Corpus & Power of Congress to Suspend
1. Suspension of the Writ of Habeas Corpus
“The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
I. Suspension Clause of Constitution (p. 1159)
A. That the Constitution includes this clause testifies to the founding generation’s understanding that the writ was an established and fundamental guarantee of liberty
B. Power to Suspend:
1.) Which Branch may suspend?
a.) Lincoln’s claim that president could was rejected in Ex Parte Merryman
2.) What constitutes a suspension?
a.) SC has recognized that Congress is free to replace H.C. with a different form of judicial review, so long as the substitute is adequate
b.) Whether there has been a suspension is bound up with the question of what scope of review is recognized by the Suspension Clause
3.) Is act of suspension subject to review?
a.) Some opinions have broadly asserted that the courts may not review a congressional decision to suspend (Hamdi, Scalia dissenting)
C. Suspension Clause as an Affirmative Guarantee of Judicial Review (p. 1162)
1.) Since 1789 Judiciary Act, congressional statutes have affirmatively vested h.c. jurisdiction in federal courts
2.) INS v. St. Cyr (2001)
a.) Amendment to immigration law precluded recourse to state or federal court to challenge the legality of INS’s action
b.) SC construed amendment as not precluding the exercise of h.c. under the general grant in § 2241
i.) “Serious Suspension Clause issue would be presented if we were to acct the INS’s submission that the statutes have withdrawn the power to issue the writ”
c.) “At the absolute minimum the Suspension Clause protects the writ as it existed in 1789”
d.) Scalia argued that the Clause was designed only to limit temporary suspension of the writ as it existed under the statute law in effect at the time
3.) Boumediene (2008) – for the first time ruled that Clause does confer an affirmative right to h.c.
D. In light of the Madisonian Compromise and the possibility that Congress might never have established federal courts at all, must any right to review conferred by the Clause be afforded in federal court
