Jurisdiction stripping

Jurisdiction stripping
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Jurisdiction stripping, also called curtailment of jurisdiction or court stripping, refers to the congressional practice of defining the jurisdiction of the United States federal judiciary as to eliminate its ability to hear certain classes of claims, thereby making certain legislative or executive actions unreviewable by the federal judiciary, but still potentially reviewable by state judiciaries, or alternatively subject to decision by legislators as a political question.



Congress may define the jurisdiction of the judiciary through the simultaneous use of two powers.[1] First, Congress holds the power to create (and, implicitly, to define the jurisdiction of) federal courts inferior to the Supreme Court (i.e. Courts of Appeals, District Courts, and various other Article I and Article III tribunals). This court-creating power is granted both in the congressional powers clause (Art. I, § 8, Cl. 9) and in the judicial vesting clause (Art. III, § 1). Second, Congress has the power to make exceptions to and regulations of the appellate jurisdiction of the Supreme Court. This court-limiting power is granted in the Exceptions Clause (Art. III, § 2). By exercising these powers in concert, Congress may effectively eliminate any judicial review of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."[1]

Alexander Hamilton had this to say about the issue in The Federalist:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.[2]

Transfer of authority to state judiciaries

Framers of the Constitution, such as Roger Sherman of Connecticut, did not envision jurisdiction stripping as invariably insulating a law from judicial review, and instead foresaw that state judiciaries could determine compatibility of certain types of state statutes with federal laws and the federal Constitution. In 1788, Sherman publicly explained that,

It was thought necessary in order to carry into effect the laws of the Union, to promote justice, and preserve harmony among the states, to extend the judicial powers of the United States to the enumerated cases, under such regulations and with such exceptions as shall be provided by law, which will doubtless reduce them to cases of such magnitude and importance as cannot be safely trusted to the final decisions of the courts of particular states; and the constitution does not make it necessary that any inferior tribunals should be instituted, but it may be done if found necessary; 'tis probable that courts of particular states will be authorized by the laws of the union, as has heretofore been done in cases of piracy, &c....[3]

Thus, there are two kinds of jurisdiction-stripping: one which changes the court that will hear the case (as Sherman envisioned), versus one which essentially insulates statutes from judicial review altogether. Jurisdiction-stripping statutes usually take away no substantive rights but rather change the court that will hear the case.[4]

Congress has sometimes limited federal involvement in state cases, for example by setting a minimum amount in controversy in order to bar the lower federal courts from hearing diversity cases that involve less than that amount, combined with precluding a right to appeal to the Supreme Court.[5][6] Likewise, Congress has never required that state court cases involving federal questions be removed or appealed to federal court, and so the federal courts are unable to exercise power in many of those cases.[7]


Congress may not strip the U.S. Supreme Court of jurisdiction over those cases that fall under the Court's original jurisdiction defined in the U.S. Constitution, and instead Congress can only limit the appellate jurisdiction of the Court.[8] According to the Constitution, the Supreme Court has original jurisdiction in, "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party...." This last state-shall-be-a-party language does not mean that the U.S. Supreme Court has original jurisdiction merely because a state is a plaintiff or defendant, even if a provision of the U.S. Constitution is at issue; instead, the controversy must be between two or more states, or between a state and citizens of another state, or between a state and foreigners.[9][10] Additionally, in 1892, the Court decided that it has original jurisdiction in cases between a state and the United States.[11]

Story's theory

Justice Joseph Story, in his opinion in Martin v. Hunter's Lessee and in his other writings, wrote extensively about how Congress should ensure that the judicial power is properly vested in the federal courts. Professor Akhil Amar credits Story with the theory that Congress may not concurrently remove the jurisdiction of inferior courts and the appellate jurisdiction of the Supreme Court over certain categories of claims, as doing so would violate the Constitution's mandatory grant of jurisdiction over such claims to the judiciary as a whole. [12] Story wrote in Martin v. Hunter's Lessee:

The judicial power shall extend to all the cases enumerated in the constitution. As the mode is not limited, it may extend to all such cases, in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original or appellate jurisdiction, or both; for there is nothing in the nature of the cases which binds to the exercise of the one in preference to the other.

According to Amar, Story's exposition of federal court jurisdiction "has generated considerable confusion" and furthermore, as Amar understands Story's theory, it "simply cannot be right".[12] Professor Henry M. Hart instead argued that Congress may strip the power of the federal judiciary to hear certain classes of cases.[13][14] Hart wrote: "In the scheme of the Constitution [state courts] are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones."

Calabresi's theory

In 2007, law professors Steven Calabresi and Gary Lawson opined that Congress can strip the U.S. Supreme Court of appellate jurisdiction only to the extent that Congress expands the Court's original jurisdiction.[15] Calabresi and Lawson acknowledged that their theory contradicts the holding of Marbury v. Madison, according to which the Constitution's description of the Court's original jurisdiction is exhaustive.

According to Calabresi and Lawson, Congress has no ability to alter or make exceptions to the judicial power of the United States, or to do anything less than bring the full judicial power into execution. The Calabresi theory finds support in a 2010 article by Washburn University Law Professor Alex Glashausser.[16] On the other hand, Judge William A. Fletcher wrote an article in 2010 taking the opposite point of view.[17]

Related issues

Generally speaking, the word "power" is not necessarily synonymous with the word "jurisdiction".[18] For instance, courts will often assert a modest degree of power over a case for purposes of determining whether it has jurisdiction, or for purposes of receiving jurisdiction.[19]

The Constitution vests the judicial power "in one supreme Court, and in such inferior courts as the Congress may from time to time establish" (emphasis added). Scholars have debated whether the word "in" means that the entire judicial power is vested in the Supreme Court and is also vested entirely in the inferior courts; that possibility has implications for what the vesting of such power means.[20][21]

Other relevant Supreme Court cases

During Reconstruction, Congress withdrew jurisdiction from a case the U.S. Supreme Court was then in the process of adjudicating. In terminating the case Ex Parte McCardle, 74 US 506 (1869), the Justices acknowledged the authority of Congress to intervene.

We are not at liberty to inquire into the motives 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.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.[22]

In 1882, the Supreme Court again conceded that its own "actual jurisdiction is confined within such limits as Congress sees fit to describe.”[23]

In 1948, Supreme Court Justice Felix Frankfurter conceded: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred."[24]

In 1993, the Supreme Court held in Nixon v. United States that judicial power may not be exercised in cases of impeachment. Such cases are a political question that are exempt from the appellate jurisdiction of the Supreme Court.

Further federal statutes

More recent examples of jurisdiction stripping include the following:

There have also been hundreds of unsuccessful bills in Congress to strip federal courts of jurisdiction.[26][27]

See also


  1. ^ a b Bauman, Richard and Kahana, Tsvi. The Least Examined Branch: the Role of Legislatures in the Constitutional State, p. 442 (2006).
  2. ^ Federalist 80.
  3. ^ Sherman, Roger. "Observations on the New Federal Constitution", New Haven Gazette (December 25, 1788), reprinted in Ford, Paul. Essays on the Constitution of the United States, p. 241 (1892).
  4. ^ Hamdan v. Rumsfeld, 548 U.S. 557 (2007): "a jurisdiction-conferring or jurisdiction-stripping statute usually 'takes away no substantive right but simply changes the tribunal that is to hear the case.'"
  5. ^ Weiman, Theodore.  "Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young, University of Pennsylvania Law Review, Volume 153, page 1677 (2003): "to this day, the Court still may not hear appeals of state court cases between parties of diverse citizenship, and amount-in-controversy requirements have barred federal court jurisdiction over cases not meeting the requirements since the first Judiciary Act."
  6. ^ Before the Evarts Act in 1891, the cases that could reach the Supreme Court were heard as a matter of right, meaning that the Court was required to issue a decision in each of those cases. See Russel R. Wheeler & Cynthia Harrison, Fed. Judicial Ctr., Creating the Federal Judicial System 17–18 (3d ed. 2005).
  7. ^ Rose, John. An elementary treatise on the jurisdiction and procedure of the federal courts, pages 23-24 (King Brothers 1915).
  8. ^ May, Christopher and Ides, Allan. Constitutional Law National Power and Federalism: Examples and Explanations, p. 62 (2007).
  9. ^ Cohens v. Virginia, 19 U.S. 264 (1821): "[T]he original jurisdiction of the supreme court, in cases where a state is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised, in consequence of the character of the party."
  10. ^ Amar, Akhil. "Marbury, Section 13, and the Original Jurisdiction of the Supreme Court", University of Chicago Law Review, pp. 2, 22 (1989).
  11. ^ United States v. Texas, 143 U.S. 621 (1892). A factor in United States v. Texas was that there had been an "act of congress requiring the institution of this suit". With a few narrow exceptions, courts have held that Congress controls access to the courts by the United States and its agencies and officials. See, e.g., Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 ("Agencies do not automatically have standing to sue for actions that frustrate the purposes of their statutes"). Also see United States v. Mattson, 600 F. 2d 1295 (9th Cir. 1979).
  12. ^ a b Amar, Akhil.  "A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction", Boston University Law Review, Volume 75, page 205 (1985).
  13. ^ Hart, "The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic", 66 Harvard L. Rev. 1362 (1953).
  14. ^ Brest, Paul; Sanford Levinson, Jack M. Balkin, Akhil Reed Amar, and Reva B. Seigel (2006). Processes of Constitutional Decisionmaking: Cases and Materials (6th Edition ed.). Aspen. pp. 887–889. 
  15. ^ Calabresi, Steven and Lawson, Gary. "The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia", Columbia Law Review (2007).
  16. ^ Glashausser, Alex. "A Return to Form for the Exceptions Clause", Boston College Law Review, Vol. 51, No. 5, 2010.
  17. ^ Fletcher, William. "The Meaning of the Word 'All' in Article III", Duke Law Journal (2010).
  18. ^ Velasco, Julian. "Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View", Catholic University Law Review, Vol. 46 (Spring 1997), pages 709-713.
  19. ^ Cover, Robert.  Narrative, Violence and the Law (U. Mich. 1995): "Every denial of jurisdiction on the part of a court is an assertion of the power to determine jurisdiction...." See also Hudson Insurance Company v. American Electric Corporation, 957 F.2d 826 (11th Cir. 1992): "Article III of the Constitution provides the judiciary with the constitutional power to receive jurisdiction...."
  20. ^ Velasco, Julian. "Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View", Catholic University Law Review, Vol. 46 (Spring 1997), page 700.
  21. ^ Amar, Akhil. "A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction" (1985). Faculty Scholarship Series. Paper 1019.
  22. ^ Ex Parte McCardle, 74 US 506 (1869) at 514-515. For discussion see Notre Dame Law School professor, Charles E. Rice, “Congress and the Supreme Court’s Jurisdiction,” Villanova Law Review 27 (1982): 967-969.
  23. ^ The Francis Wright, 105 U.S. 381 (1881) at 386: "While the appellate power of this Court extends to all cases within the judicial power of the United States, actual jurisdiction is confined within such limits as Congress sees fit to describe. What these powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control."
  24. ^ Frankfurter in National Insurance Co. v. Tidewater Co., 337 U.S. 582 (1949) at 655. See also, the quite useful transcripts of the panel discussion during "Symposium Proceedings" held at Villanova on "Congressional Limits on Federal Court Jurisdiction," Villanova Law Review, May 1982 ed., pp. 1042-1076, where Charles E. Rice quotes former Supreme Court Justice Owen Roberts as follows [at 1043]: ‘“I do not see any reason why Congress cannot, if it elects to do so, take away entirely the appellate jurisdiction of the Supreme Court of the United States over state supreme court decisions.’” [A.B.A. Journal 35(1949): 4.]
  25. ^ "Curtailment of Jurisdiction". American Judicature Society. http://www.ajs.org/cji/cji_jurisdiction.asp. Retrieved 2006-11-12. 
  26. ^ Keynes, Edward and Miller, Randall. The Court vs. Congress: Prayer, Busing, and Abortion, p. 306 (1989).
  27. ^ Choate, Alan (2006-06-06). "Cannon tries to ban federal courts from hearing state porn cases". The Daily Herald. p. A1. http://www.heraldextra.com/content/view/181240/. Retrieved 2006-11-12. 

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