blogging Fed Courts 4: Congress’s control over Article III court jurisdiction

Article III of the Constitution provides that:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish . . . .

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. 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.

Out of those brief lines, much has been made.

One question that comes up repeatedly is the degree to which Congress may limit or circumscribe the federal courts’ jurisdiction. If you read the above paragraphs carefully, you will notice that they are not entirely clear — may be deliberately unclear, in fact — about any of the following:

  • Will there be federal courts other than the Supreme Court?
  • If Congress does create federal courts, must they have jurisdiction over all the subjects that the “judicial power shall extend to”? Or may Congress pick and choose which subjects the courts will exercise jursidiction over?
  • Does the entirety of the constitutionally-defined federal “judicial power” have to exist somewhere (either in the lower courts or in the Supreme Court), or might parts of it simply not exist?
  • Can Congress create other courts beyond the scope of Article III? If so, what parts of the judicial power can be assigned to them? Or, alternatively, can Congress assign them jurisdiction outside the narrow confines of the federal judicial power?
  • What sorts of “exceptions” to the Supreme Court’s appellate jurisdiction are acceptable — are there any limits on that power?
  • Are there any exceptions to the Court’s original jurisdiction, or is that sacrosanct?

Let’s try to answer some of those questions. (We will not be able to — this is a portion of Federal Courts with no good answers — but the attempt is, maybe, illuminating.)

Lower Federal Courts

The clearest doctrine to be found in this area is the simple principle that Congress need not establish lower federal courts. The “may from time to time ordain” language is the result of some political negotiation, and it is usually called the “Madisonian compromise.” Madison felt that there needed to be strong federal courts to strengthen the central government and vindicate federal rights (which the state courts might not fully respect). Other Framers, however, felt exactly the opposite — that a strong federal judiciary would over-empower the central government and possibly run roughshod over the state courts. A motion was actually introduced at the Convention that Congress be prohibited from establishing lower federal courts. As a compromise, and in order to preserve at least the possibility of a robust federal judiciary, Madison and James Wilson put forward the structure we have today: Congress may, but need not establish courts inferior to the Supreme Court.

However, even this seemingly simple doctrine comes with twists, because of a related question: Must federal courts be able to hear all the cases enumerated as part of the “judicial power”? One could easily read Article III to ordain that there must be a federal judicial power over allthe kinds of cases enumerated. This is a fair textual reading, since Article III says that the judicial power “shall extend to” those types of cases — that sounds pretty mandatory.

Unfortunately, this reading of Article III doesn’t jibe with the actual history of Congress’s statutory treatment of the courts. Congress has never vested the courts with jurisdiction over the entire panoply of the enumerated types of cases. For example, federal court jurisdiction over suits “between citizens of different states” — so-called “diversity” cases, because the parties have diversity of citizenship — has been limited, since the first Judiciary Act (1789), to cases where the amount of money in dispute exceeded some numerical threshold. (Today that threshold is $75,000.) So although the Constitution would allow federal courts to hear all diversity cases, Congress has limited this jurisdiction by statute. Thus, it’s undisputed that Congress may limit lower court jurisdiction.

There are, however, two caveats to this general principle. First, since Congress may create “exceptions” to Supreme Court jurisdiction, if it can also divest the lower courts of jurisdiction, we do run the risk that the constitutional expectation that there is a judicial power might be thwarted. Whatever powers the Constitution grants the legislature, it is hard to believe that grant extends to the power to unilaterally lop off one third of our tripartite governmental structure. Justice Story, in Martin v. Hunter’s Lessee, suggested that “[t]he judicial power must, therefore, be vested in some court” — and Congress’s seeming discretion in vesting jurisdiction in both the lower courts and the Supreme Court was really a binary choice for Congress to make. Vest this power, the Constitution says to Congress, either in the lower courts or in the Supreme Court. But not vesting the judicial power, at least to a degree that the Constitution’s structural guarantee of the division of powers would be vitiated, is likely unconstitutional. As Justice Story wrote,

[T]o suppose that it was not an obligation binding on them [Congress], but might, at their pleasure, be omitted or declined, is to suppose that, under the sanction of the constitution, they might defeat the constitution itself; a construction which would lead to such a result cannot be sound.

In point of fact, as noted above, Congress has never fully vested all aspects of the judicial power. But it has also never abolished lower courts entirely; nor has it so greatly restricted the functioning of the judiciary as to sap the Third Branch of its constitutional power. An attempt to do so would likely trigger a serious constitutional crisis.

The second caveat is that some portions of the federal judicial power are thought to be so vital to the functioning of our democratic system that Congress simply may not withhold them. To take the most dramatic example, the “Suspension Clause” of Article I, Section 9 of the Constitution specifically denies Congress the power to “suspend” the “privilege of the writ of habeas corpus” unless “when in cases of rebellion or invasion the public safety may require it.” What this means is not immediately clear from the text — does it mean that Congress may not cause the habeas writ to be unavailable at all, or does it mean only that if Congress generally vests the power to hear habeas cases in the federal courts, it may not suddenly revoke the power?

The latter meaning seems obviously subject to abuse, and the Supreme Court has repeatedly sent warning shots across Congress’s bow when it sailed too close to abolishing or restricting the writ. In Ex Parte McCardle (1868), for example, the Court allowed that Congress had the ability to repeal a statutory grant of appellate review of habeas cases from the lower courts. But at the very end of the opinion, the Court added a little coda:

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised. [emphasis added]

The “previously exercised” jurisdiction the Court refers to is the Court’s ability to hear habeas petitions directly under the Judiciary Act of 1789. The implication, though subtle, is that where Congress has created two alternate channels for habeas jurisdiction, it may abolish one of them . . . but perhaps not both.

Similarly, where habeas jurisdiction has apparently been limited, the Court has gently but firmly pushed back against the idea that certain categories of prisoners might be denied habeas review as a matter of course. In INS v. St. Cyr (2001), the Court denied that any of four separate statutory provisions — including one actually titled “Elimination of Custody Review by Habeas Corpus” — served to deny the district courts authority to hear habeas petitions from aliens facing deportation. And in Boumediene v. Bush the Court ruled that denial of jurisdiction over habeas review of detentions at Guantanamo violated the Suspension Clause.

What all this suggests is that there is at least one constitutional provision — the Suspension Clause — which has been found (a) to provide an affirmative individual right, and (b) to assure that there is a federal court with jurisdiction to hear it. (Perhaps there are others, and Congress simply hasn’t pushed the boundaries of the Court’s comfort zone yet with regard to those others.) That does not necessarily mean that there must be lower courts. But it does seem to imply that if Congress were to remove Supreme Court appellate jurisdiction over all habeas cases, there would necessarily have to be lower courts to hear them. Thus, it would appear that Justice Story was at least partly correct: perhaps the entire federal “judicial power” doesn’t have to be vested, but some individual federal judicial functions do have to be vested somewhere.

The Supreme Court

Article III states that:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. 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.

The first sentence, establishing the Court’s original jurisdiction, is read as inviolable. Absent a constitutional amendment, the Court will always have jurisdiction to hear cases involving foreign dignitaries and cases where States are parties. But the former cases are obviously quite rare, and the range of the latter cases is somewhat limited by the 11th Amendment, which gave States sovereign immunity to suit, not only by their own citizens, but by citizens of other States and foreign countries, as well. So there’s this fairly small class of suits in which the Court’s jurisdiction is absolutely not under Congress’s authority. In all other cases, however, it would appear that Congress may make “exceptions” and “regulations” to the Court’s jurisdiction.

But what kinds of exceptions and regulations are allowed? We’ve already looked at the habeas cases a bit. The Court has occasionally allowed the diminution of habeas jurisdiction, as long there remained some habeas mechanism (including its own jurisdiction). But what would happen if Congress used its power to restrict lower federal court jurisdiction to keep habeas review out of the lower courts, and its power to create exceptions to Supreme Court appellate jurisdiction to keep habeas away from the High Court as well? As we’ve already seen, it’s likely that this would be a no-go. So there must be some limits on Congress’s ability to create exceptions.

On the other hand, some rather large exceptions have proven remarkably uncontroversial. For example, for over a century, the Court had appellate jurisdiction, not over all state cases in which a federal constitutional claim arose, but only those in which the claim was denied. So if, prior to 1914, you lost your lawsuit because the opposing party raised a federal claim or defense, and the state courts wouldn’t give you relief, you could not get Supreme Court review of the relevant federal law — even if it was constitutional law. (Weird, right?)

Congress’s power to make exceptions is probably limited by several factors. First, the word “exception” implies a rarity, a deviation from the norm. There is a general appellate jurisdiction; Congress excepts from it certain individual subjects for public policy reasons. Fair enough. If Congress entirely or substantially removed appellate jurisdiction altogether, however, this would arguably go beyond making “exceptions” and constitute an attack on a coordinate branch. As we discussed above, Congress probably cannot simply eviscerate the judiciary; the very structure of the Constitution, as well as 200+ years of precedent and tradition, strongly suggest that the judiciary is one of three equal branches, and no one branch may completely dominate any of the others.

Second, Congress cannot limit jurisdiction in a manner that directly violates some non-Article III provision of the Constitution. All scholars agree, for example, that Congress may not pass a statute eliminating Supreme Court appellate jurisdiction over cases where a black person is a party. As noted above, Congress may not alter the Court’s jurisdiction in such a way as to effectively suspend habeas corpus. More subtly, the Court has sometimes said that Congress may not restrict the Court’s jurisdiction in a way that would interfere with the President’s rights under Article II. So after the Civil War, for example,

President Abraham Lincoln issued a proclamation offering a pardon to any person who had supported or fought for the Confederate Army, with full restoration of property rights, subject only to taking an oath of allegiance. The United States Congress had passed an act in 1863 that permitted an owner of property confiscated during the war to receive the proceeds from the sale of the confiscated property.

The 1863 act also required that anyone applying for restitution for confiscated property must prove in court that he was had not given “any aid or comfort to the present rebellion.” The effect of the President’s pardon was to essentially wipe away the Confederate’s past crimes against the U.S., and so it could be used in a claim as evidence to meet the statutory requirement.

So far, so good: everybody’s acting in their own wheelhouse. The President is issuing pardons, which he’s clearly entitled to do under Article II, and Congress is passing statutes. Good.

But Congress was not that keen on forgiving and forgetting after the Civil War, and also, restoring the property of every Confederate who lost a mule to the Union Army might be an expensive proposition. So it passed the appropriation act of July 12th, 1870 which said that

no pardon or amnesty granted by the President shall be admissible in evidence on the part of any claimant in the Court of Claims as evidence in support of any claim against the United States

and, in fact,

whenever any pardon shall have heretofore been granted by the President to any person bringing suit in the Court of Claims for the proceeds of abandoned or captured property under the act of March 12th, 1863 . . . such pardon and acceptance shall be taken and deemed in such suit in the said Court of Claims, and on appeal therefrom, conclusive evidence that such person did take part in and give aid and comfort to the late rebellion, and did not maintain true allegiance or consistently adhere to the United States, and, on proof of such pardon and acceptance, the jurisdiction of the court in the case shall cease . . . .

In other words, Congress not only nullified, but actually reversed the effect of the President’s proclamation of pardon. A pardon ensured that a former Confederate was legally not considered disloyal and hence had valid property rights, recognized in U.S. courts. The 1870 statute, on the other hand, stated that a pardon was affirmative proof that he had been disloyal, and so had no right to a claim for confiscated property.

The Court found that the statute was unconstitutional, and specifically found that the denial of jurisdiction to the courts was merely

a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have.

But the Court went on to cite another reason the statute was unconstitutional:

It is evident from this statement that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress . . . .

It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.

The court is required to ascertain the existence of certain facts, and thereupon to declare that its jurisdiction on appeal has ceased by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the Court of Claims has rendered judgment for the claimant, and an appeal has been taken to this court. We are directed to dismiss the appeal if we find that the judgment must be affirmed because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? [i.e., without allowing the U.S. Government to give itself a ruling, by statute — ed.] Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?

Well… can the legislature prescribe rules of decision for cases now pending? What does that mean, exactly, anyway? The Court later circled around, but failed to completely clarify, what kinds of “rules” Klein forbids Congress to make. For example,

  • Congress may change applicable statutory law while a case is pending, and that change in the substantive law may affect the outcome of the case. Robertson v. Seattle Audubon Soc., 1992.
  • Congress may even create a change in law that interferes with a court’s ongoing injunctive order in a case already decided. Miller v. French, 2000.
  • Congress may not give the power to an agency of the Executive with an interest in the outcome to decide elements of a case and require the court to “rubber stamp” the decision. Gutierrez de Martinez v. Lamagno, 1995.
  • Congress may not force the courts to re-open a case for money damages that had reached final judgment. Plaut v. Spendthrift Farm, Inc., 1995.

And finally, we might add (based on the facts of Klein itself),

  • Congress likely may not restrict the jurisdiction of the Court in such a way as to dictate the outcome of a class of pending cases, especially where the U.S. itself is an interested party.

In Klein, then, the limitation on jurisdiction seems to be doing some work. But Lamagno suggests that the fact that Congress and the U.S. government have a financial interest in the outcomes of these cases also does a good bit of work. Thus, it’s not clear how much Klein depends on the jurisdictional element per se — especially since, in terms of the final judgment, the point about Article III and jurisdiction is greatly buttressed by the Article II issue (that of interference with presidential power).

In Battaglia v. General Motors Corp., the Court was confronted with a statute that denied it jurisdiction as well as changing substantive law. The Court had earlier found that the Fair Labor Standards Act created an individual property right for workers in their overtime pay. Congress later passed an act called the Portal-to-Portal Act that, among other things, revised the Fair Labor Standards Act to eliminate the property right. Simultaneously, it deprived any “court of the United States” of jurisdiction to hear “any action or proceeding” based on an employer’s failure to pay overtime.

The Court noted that some district courts had upheld the jurisdictional provision based on Congress’s authority over federal court jurisdiction. The Supreme Court, however, felt that

the exercise of Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of [federal] courts . . . it must not so exercise that power as to deprive any person of life, liberty, or property without just compensation. Under this view, subdivision (d) [the jurisdictional provision] on the one hand and subdivisions (a) and (b) [the provisions eliminating the substantive property right] on the other will stand or fall together.

In other words, if Congress had tried to effect the substantive change solely by depriving the courts of jurisdiction to hear the cases, that would allow deprivations of rightful property (the overtime pay) without due process (redress in the courts). (This is a variation on Klein — jurisdiction may not be used as a means of deciding substantive matters.) In Battaglia, it was only because Congress eliminated the substantive right that it could also safely eliminate the courts’ jurisdiction over the class of cases.

The 5th Amendment requirement is, of course, another major restriction on Congress’s ability to control jurisdiction.

In conclusion, this area is a bit of a hot mess. (And it’s far from over — wait until we get into Article I courts and administrative agencies.) So far, at least, we can articulate some general working principles, if not a clear and conclusive set of doctrinal tests:

  • Congress generally has wide-ranging power to restrict at least lower court jurisdiction. Sheldon v. Sill.
  • Congress also has power to create “exceptions” to the Supreme Court’s appellate (but not original) jurisdiction. Art. III, Sec. 2.
  • However, the exercise of these powers in a way that would completely eliminate a guaranteed constitutional procedural right, the right to habeas corpus, is not allowed.Boumediene, etc.
  • Likely, a drastic reduction in the overall jurisdiction of federal courts, such as would make the judiciary no longer a co-equal branch of government, is also not allowed.
  • Congress probably may not use a jurisdictional restriction as part of a scheme to deprive the President of his Art. II powers. Klein.
  • Congress also probably may not use jurisdiction to effect certain outcomes in pending cases; it must change the substantive, underlying law. Klein, Battaglia.
  • Congress may not use a change in jurisdiction to deprive citizens of life, liberty, or property without due process. Battaglia.
  • Congress may not restrict jurisdiction in a way that, itself, is a constitutional violation. (E.g., discriminatory along a protected axis like race.)

That is what I know. It’s vague and not that helpful. Next, I’ll try to write up non-Article III adjudicative bodies. Then we will be over the hill and into easier territory.

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2 Responses to blogging Fed Courts 4: Congress’s control over Article III court jurisdiction

  1. Pingback: blogging Fed Courts 6: non-Article III courts — what is the value of the Article III protections, anyway? | The Handsome Camel

  2. Pingback: blogging Fed Courts 8: Supreme Court review of state court decisions | The Handsome Camel

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