judicial power

Theory

Because state courts have general jurisdiction, and because the Supremacy Clause requires states to follow federal law and the Constitution, any case not heard in federal court can still presumably be heard in state court. Properly balancing federal and state jurisdiction, then, requires some assumption about the "parity" between the state and federal courts. Note that "parity" could mean either that federal and state courts have to be the same, or only that state courts must reach some minimum standard of quality. While state courts are bound to apply federal law, see the Supremacy Clause, state judges may be more willing to impose costs on the federal government (ex. in a tort claim against the US) because the cost will be borne by the entire country, not just the state. (Posner, EAL).

One aspect of parity is that federal unelected judges are supposed to be more apolitical and countermajoritarian than elected state judges; this claim is belied, however, by the deep politicization and ideology of the current federal bench. (Cf. Posner's argument that the courts are not "apolitical" but "autonomously political.").

Textual arguments for and against mandatory federal jurisdiction

Caselaw


Congressional power over inferior court jurisdiction

The Court has held that because the Constitution does not require inferior federal courts, and because it makes no sense for any inferior federal court created to hold all Article III power, inferior federal courts only hold such power as Congress grants by statute. Sheldon v Sill. Further, Congress may withhold jurisdiction affirmatively from the inferior federal courts by statute. Sheldon v Sill.
Because Congress need not create lower federal courts, Sheldon v Sill, Congress may have the lesser included power to decide what jurisdiction lower federal courts may exercise. Bator argues that Congress must have the power to make "political" decisions about what the federal courts may do, since the alternative, the "all-or-nothing power" to decide whether the inferior courts should or should not have all of Article III power would be nonsense. In comparison, Justice Story argued in Martin v Hunters Lessee that because Article III requires that judicial power "shall" be vested, if the Supreme Court cannot hear appeals from state courts, then there must be inferior federal courts to vest judicial power.


Congressional power over Supreme Court jurisdiction

Congress can neither add to nor subtract from USSC’s original jurisdiction. Marbury v Madison. However, Congress can confer appellate jurisdiction where there is original jurisdiction. [Cohen v Virginia].

Under Article III, § 2, cl 2, Congress may make exceptions to the Supreme Court's appellate jurisdiction, even in an ongoing case. Ex parte McCardle (dismissing habeas corpus appeal where Congress had passed an act during the case's proceedings to strip the Court of jurisdiction). Further, the affirmative grant of appellate jurisdiction to the Court implies that appellate jurisdiction over other areas has been withdrawn. [DuRousseau v US].

"Jurisdiction is power to declare the law," so that if Congress strips the Court's jurisdiction, the Court has no power to act in a case. Ex parte McCardle. Dicta in Ex parte McCardle suggests that "the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established," so that Congress "grants" and "withholds" jurisdiction, not merely regulates it. However, Ex parte McCardle only dealt with a specific denial of the Court's appellate jurisdiction.


Hart argues that Congress may not strip the Court of its "essential functions," which perhaps includes judicial review of legislation for its constitutionality or the protection of fundamental individual rights. Hart, "Power of Congress." Hart argues that otherwise the "exceptions" of Article III, § 2 would swallow the rule, although his "essential functions" test is necessarily indeterminate. Cf. Ex parte McCardle (holding that the Congress could strip the Court of appellate jurisdiction over a statutory form of habeas corpus created in 1867); see also [Ex parte Yerger] (exercising appellate jurisdiction over a writ of habeas corpus brought under a pre-1867 provision); Ratner, "Congressional Power" (arguing that restricts on the appellate jurisdiction of the Court must not "negate" "essential constitutional functions" of supremacy and uniformity).

In comparison, Wechsler argues that because judicial review, as conceived of in Marbury v Madison, occurs only because courts have the duty to consider the Constitution in the cases they decide. As a result, argues Wechsler, there is no particularly "essential" function of the courts to protect.

Note also that Congress may not use its Exceptions Clause power to force a rule of decision upon the federal courts. See [US v Klein], below.


Congressional power to remove all federal jurisdiction


The vesting of Article III power in a court may require that the "entire" judicial power be vested. See Martin v Hunters Lessee. Because the judicial power "shall" be vested, either the Supreme Court must have appellate jurisdiction over state courts, or there must be inferior federal courts to exercise the judicial power. Story also argued that at least in federal question jurisdiction and other types of cases where the judicial power extends to "all cases," there must be federal judicial power somewhere. Note, however, that Article III, § 2 grants Congress the power to make exceptions to the Court's jurisdiction; further, the Judiciary Act of 1798, especially § 25, does not vest the federal courts with all the power that Story thought necessary.

Another useful distinction may be between "external" and "internal" constraints on Congressional power over federal judicial power. Since other constitutional provisions come after, and are textually separate from, Article III, such as Amendment I or Amendment XIV, the Congress may lack power to divest the courts so as to violate other constitutional provisions.a See also Sheldon v Sill (Congressional Exceptions Clause power "cannot be in conflict with the Constitution, unless it confers powers not enumerated therein"). The Suspension Clause does, at least, provide a genuine external constraint to Article III. A further support may be the equal protection component that the Court found in Amendment V. As a result, Congress may not for example be able to bar federal jurisdiction only to black or Jewish plaintiffs. At the same time, the dicta in Sheldon v Sill may refer only to Article III. The strength of the "external"/"internal" distinction may also depend on the availability of state courts to hear constitutional claims. Note, however, that the argument requires that jurisdiction may be vested somewhere, but that "designat(ing)" the state courts would violate the implied limits on Congressional power of Amendment X. Thus, if constitutional rights must be vindicated somewhere, if state courts are unavailable, and if the Supreme Court cannot have original jurisdiction, Marbury v Madison, the Congress must vest jurisdiction in the lower federal courts.

One historical example is the Norris-La Guardia Act, 29 USC § 101–115, which withdrew jurisdiction over enforcing yellow-dog contracts to "any court of the United States." The Court had held a year before in [Truax v Corrigan] that denying all effective remedies for common-law rights would violate procedural due process under Amendment V. See also [Coppage v KS]; [Adair v US] (finding economic substantive due process right to condition employment on lack of union membership). But in [Lauf v EG Shinner], held that the Norris-La Guardia Act did not violate the Constitution; Lauf can be read either as a rule that "the Constitution does not give people any right to proceed or be proceeded against . . . in a federal rather than a state court," or as a narrower holding that Article III and Amendment V did not require specifically federal jurisdiction over the Norris-La Guardia Act.

Another historical example is the Indian Civil Rights Act, 28 USC § 1301–03, which protects the indivdual rights of Indians against tribal governments. Although suits under the Act arise under federal law, they may be filed only in tribal courts, and there is no possibility of Supreme Court review.

Mortara argues that the historical examples show that Congress might be able to strip the Court of jurisdiction seriatim even if it couldn't do so all at once. Doing so, however, would be very difficult given political changes over time.


Congressional power to remove all federal and state jurisdiction

A historical example is the Portal-to-Portal Act, 29 USC § 201–219, which barred any enforcement of Fair Labor Standards Act standards in any court. The lower federal courts universally upheld the Act. The Second Circuit, in [Battaglia v GM Corp], upheld the act on other grounds, but argued that "the exercise by Congress of its control over jurisdiction is subject to compliance" with Amendment V, so that Congress could not use its jurisdictional powers to deprive people of life, liberty, or property. Courts may interpret jurisdictional statutes narrowly to avoid the result that a person is denied any judicil relief. See [Webster v Doe] (holding that Congress had not clearly enough manifested its intent to preclude judicial review of a fired CIA employee's constitutional claims). See also [Reich v Collins] (holding that there must be a judicial forum for Takings Clause challenges). Mortara argues that denying a judicial remedy entirely for a constitutional claim is itself unconstitutional, since making a constitutional provision ineffective would in effect change the constitution.

Scalia and Bork have challenged the Battaglia theory on the ground that certain cases are already nonjusticiable as political questions. The Court's political questions caselaw certainly suggests that all judicial review might be withheld for substantive reasons. See, for example, [Goldwater v Carter]. Further, Congress may cancel constitutional rights simply by refusing plaintiffs any remedy. See [Webster v Doe] (Scalia dissenting); [Bartlett v Bowen] (Bork dissenting). Likewise, Hart argues that the problem here appears only if any remedy is denied; otherwise, Congress has a wide choice among how to apportion remedies.

Hart also points out that the federal government's sovereign immunity can effectively deny a remedy to constitutional rights. Hart argued that political constraints, such as the government's need to contract with others, provided the only real protection against jurisdiction-stripping through sovereign immunity. But see [Reich v Collins] (holidng that the Takings Clause of Amendment V requires a judicial remedy for takings).


Congressional power to apportion jurisdiction among the federal courts


Congress is also under no obligation to vest jurisdiction in any particular Article III court rather than another, including an administrative proceeding. See [Yakus v US] (upholding a wartime price control scheme vesting power in an administrative agency, appeal from which could be taken to a temporary emergency court of appeals); [Lockerty v Philips] (upholding temporary emergency court of appeals on the ground that "there is nothing in the Constitution which requires Congress to confer equity jurisdiction on any particular inferior federal court").

"Jurisdiction is always only jurisdiction to decide constitutionally." (Hart, "Power of Congress"). Note that [Yakus v US] assumed that Congress could not withdraw the power of the Article III courts to determine questions of law involving a judicially enforceable right. (Hart, "Power of Congress"); cf Marbury v Madison. So long as Article III courts are involved in an enforcement proceeding, defendants may not be denied the supremacy of (judicially-interpreted) law in their decisions. [US v Mendoza-Lopez] (upholding law that forbade collateral review of INS decisions, but holding that there must be "some meaningful review of the administrative proceeding" involved); Hart, "Power of Congress"; but see [Estep v US] (upholding statute that limited judicial review of administrative selective service decisions only to the question of the agency's jurisdiction, on the grounds that federal habeas corpus was still available). Estep may be read broadly as Congressional power to limit judicial review, or narrowly given that Congress still allowed the remedy of habeas relief. On the other hand, Mendoza-Lopez may be read to reject the reasoning of Estep and Falbo.


Furthermore, allowing defendants to invoke Article III process to review questions of law regarding their rights may imply a requirement that plaintiffs also be able to bring suit to enforce those rights, since they act preemptively or ex ante. (Hart, "Power of Congress"); but see [Falbo v US] (upholding selective service cases where "Congress enlisted the aid of the federal courts only for enforcement purposes");

Congress also may not "prescribe rules of decision" to the courts that prescribe an outcome in a particular case without actually changing the relevant law. [US v Klein] (invalidating statute that required courts to dismiss certain claims involving a presidential pardon). Congress may perhaps deny appeal to certain types of classes, but may not limit jurisdiction as a "means to an end" of reaching a particular outcome. [US v Klein]. Note that Congress can certainly enact the substantive rights and remedies which courts are to interpret.

Likewise, Congress may not reopen already decided cases, [Plaut v Spendthrift Farm] (invalidating statute that tried to reopen decided securities cases) or decide pending cases. [US v Klein]; but see [Robertson v Seattle Audobon Society] (statute saiying that "Congress directs and determines that" certain government actions "satisfied the statutory requirements" for two pending lawsuits did not create a rule of decision, but rather effectively amended the statute); [US v Sioux Nation] (no rule of decision when Congress ordered courts to reopen cases brought by Indians, on the ground that, unlike Klein, the government was trying to help the Indians, and rather than prescribing a decision, merely waived the defense of res judicata). Reconstruction cases also suggest that Congress may not order a superior court to reverse an inferior court. [Armstrong v US]; [Witkowski v US].