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Constitutional Law I
West Virginia University School of Law
Bastress, Robert M.

I. Limits on Federal Judicial Power
A. Interpretive Limits—generally-accepted modes of © argument mean that even the most shadowy © provisions must be interpreted in certain basic ways.
1. Originalism vs. Non-originalism
a. Originalism = view that judges should use what is in the text of the ©, or the “intent of the Framers” to interpret the ©.
b. Non-originalism = view that judges should look beyond the immediate text or particular intents of the Framers and allow the © to evolve by interpretation.
B. Congressional Limits
1. Derive from the “Exceptions and Regulations” clause. What does Article 3, §2, cl. 2 mean when it says that “the Supreme Court shall have appellate jurisdiction…with such Exceptions and under such Regulations as Congress shall make”? What about separation of powers?
2. Ex Parte McCardle (US Sup Ct, 1868)
a. Facts: McCardle is a newspaper editor in Mississippi who gets arrested by the military during Reconstruction for publishing derogatory articles about the occupation. He asks for habeas corpus under an 1867 federal law. Congress then repeals the 1867 law allowing habeas hearings. It did so to remove Supreme Court jurisdiction—in between oral argument and opinion writing!
b. Issues: Does the Court have jurisdiction despite Congress’ actions? Can Congress take away Supreme Court appellate jurisdiction?
c. Rule: The Supreme Court has appellate jurisdiction, but it is subject to “exceptions and regulations” that Congress makes.
d. Application / Holding: Court now lacks jurisdiction. Congress’ actions are OK under “exceptions and regulations” clause. Court only has appellate jurisdiction subject to such “exceptions and regulations” as Congress decides to make. And Congress decided to repeal the law that gave us jurisdiction.
e. Note: Later that year, in Ex parte Yerger, a case with facts almost identical to McCardle, the Court found that it had jurisdiction to decide the case under the old Judiciary Act of 1789. This time the gov’t just dismissed the charges and released the guy to avoid possibility of the Court making a ruling on Reconstruction.
3. Felker v. Turpin (US Sup Ct, 1996)
a. Facts: A federal law restricts federal courts’ ability to hear successive habeas corpus petitions from death row inmates. Guy sentenced to death argues that this is either an impermissible “exception” under the “exceptions and regulations” clause or an unconstitutional suspension of habeas corpus.
b. Issue: Can Congress modify the Court’s habeas jurisdiction over habeas cases by prohibiting it from hearing a second habeas petition?
c. Rule: The Supreme Court has appellate jurisdiction, but it is subject to “exceptions and regulations” that Congress makes.
d. Analysis / Holding: Court says this is OK, too. It does not take away from Court’s ability to hear habeas corpus petitions the first time, so it does not run afoul of Article 3.
4. United States

a. Criteria to avoid being declared an “advisory opinion”
i. Must be an actual dispute between litigants; AND
ii. Must be a substantial likelihood that a decision in favor of a claimant will have some effect
b. Washington asks for Help
i. Prez Washington asks Sup Ct for advice on how not to violate the policy of neutrality with England and France that Congress had passed.
ii. Sup Ct said, “Sorry, no can do.” To give advisory opinions would violate the separation of powers because Court would be abdicating its role to provide a check on the other branches. No actual disputants here!
c. Hayburn’s Case (1792)
i. Congress, seeing that the Courts don’t have much to do, passes a law that requires judges to hear evidence on Revolutionary War veterans’ pension claims, then to make recommendations to the Secretary of War (who could accept or reject them as he pleased).
The Sup Ct justices, riding circuit, mostly found this un-© in their respective cases because rendering a “decision” might not have any real-world consequences, thus making them advisory opinions. After all, the Secretary of War can wipe his ass with the “decision” if he wants too.