Jurisdiction stripping
Encyclopedia
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
.
, 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."
Alexander Hamilton
had this to say about the issue in The Federalist:
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,
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.
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. 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.
defined in the U.S. Constitution, and instead Congress can only limit the appellate jurisdiction of the Court. 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. Additionally, in 1892, the Court decided that it has original jurisdiction in cases between a state and the United States.
, 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. Story wrote in Martin v. Hunter's Lessee:
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". Professor Henry M. Hart instead argued that Congress may strip the power of the federal judiciary to hear certain classes of cases. 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."
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. 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. On the other hand, Judge William A. Fletcher
wrote an article in 2010 taking the opposite point of view.
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.
, 74 US 506 (1869), the Justices acknowledged the authority of Congress to intervene.
In 1882, the Supreme Court again conceded that its own "actual jurisdiction is confined within such limits as Congress sees fit to describe.”
In 1948, Supreme Court Justice Felix Frankfurter
conceded: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred."
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.
There have also been hundreds of unsuccessful bills in Congress to strip federal courts of jurisdiction.
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
as to eliminate its ability to hear certain classes of claims, thereby making certain legislative or executive actions unreviewable
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
by the federal judiciary, but still potentially reviewable by state judiciaries, or alternatively subject to decision by legislators as a political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
.
Basis
Congress may define the jurisdiction of the judiciary through the simultaneous use of two powers. 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 AppealsUnited States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
, District Courts, and various other Article I and Article III tribunals
Article I and Article III tribunals
In the United States, the American legal system includes both state courts and United States federal courts. The federal tribunals may be an Article III tribunal or another adjudicative body classified as an Article I or an Article IV tribunal...
). This court-creating power is granted both in the congressional powers clause (Art. I
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
, § 8, Cl. 9) and in the judicial vesting clause (Art. III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
, § 1). Second, Congress has the power to make exceptions to and regulations of the appellate jurisdiction
Appellate jurisdiction
Appellate jurisdiction is the power of the Supreme Court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right...
of the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. This court-limiting power is granted in the Exceptions Clause (Art. III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
, § 2). By exercising these powers in concert, Congress may effectively eliminate any judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
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."
Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
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.
Transfer of authority to state judiciaries
Framers of the Constitution, such as Roger ShermanRoger Sherman
Roger Sherman was an early American lawyer and politician, as well as a founding father. He served as the first mayor of New Haven, Connecticut, and served on the Committee of Five that drafted the Declaration of Independence, and was also a representative and senator in the new republic...
of Connecticut, did not envision jurisdiction stripping as invariably insulating a law from judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
, 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....
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.
Congress has sometimes limited federal involvement in state cases, for example by setting a minimum amount in controversy
Amount in controversy
Amount in controversy is a term used in United States civil procedure to denote the amount at stake in a lawsuit, in particular in connection with a requirement that persons seeking to bring a lawsuit in a particular court must be suing for a certain minimum amount before that court may hear the...
in order to bar the lower federal courts from hearing diversity cases
Diversity jurisdiction
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
that involve less than that amount, combined with precluding a right to appeal to the Supreme Court. Likewise, Congress has never required that state court cases involving federal questions be removed or appealed to federal court
Removal jurisdiction
In the United States, removal jurisdiction refers to the right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sits. This is a general exception to the usual American rule giving the plaintiff the right...
, and so the federal courts are unable to exercise power in many of those cases.
Limits
Congress may not strip the U.S. Supreme Court of jurisdiction over those cases that fall under the Court's original jurisdictionOriginal jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
defined in the U.S. Constitution, and instead Congress can only limit the appellate jurisdiction of the Court. 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. Additionally, in 1892, the Court decided that it has original jurisdiction in cases between a state and the United States.
Story's theory
Justice Joseph StoryJoseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
, in his opinion in Martin v. Hunter's Lessee
Martin v. Hunter's Lessee
Martin v. Hunter's Lessee, , was a landmark United States Supreme Court case decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in matters of federal law.-Background:...
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. 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". Professor Henry M. Hart instead argued that Congress may strip the power of the federal judiciary to hear certain classes of cases. 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 CalabresiSteven Calabresi
Steven G. Calabresi is a professor of law at Northwestern University School of Law. He is also a visiting professor at Brown University.Calabresi co-founded the Federalist Society when a student at Yale University, and is an active conservative author and commentator.Among others, he has...
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. Calabresi and Lawson acknowledged that their theory contradicts the holding of Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
, 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
Washburn University
Washburn University is a co-educational, public institution of higher learning in Topeka, Kansas, USA. It offers undergraduate and graduate programs, as well as professional programs in law and business. Washburn has 550 faculty members, who teach more than 6,400 undergraduate students and...
Law Professor Alex Glashausser. On the other hand, Judge William A. Fletcher
William A. Fletcher
William A. Fletcher is a United States federal appeals court judge who has sat on the Ninth Circuit Court of Appeals since 1998.-Education and legal training:...
wrote an article in 2010 taking the opposite point of view.
Related issues
Generally speaking, the word "power" is not necessarily synonymous with the word "jurisdiction". 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.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.
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 McCardleEx parte McCardle
Ex parte McCardle, 74 U.S. 506 , is a United States Supreme Court decision that examines the extent of the jurisdiction of the Supreme Court to review decisions of lower courts under federal statutory law.-Case history:...
, 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.
In 1882, the Supreme Court again conceded that its own "actual jurisdiction is confined within such limits as Congress sees fit to describe.”
In 1948, Supreme Court Justice Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
conceded: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred."
In 1993, the Supreme Court held in Nixon v. United States
Nixon v. United States
Nixon v. United States, 506 U.S. 224 , was a United States Supreme Court decision that determined that the question of whether the Senate had properly "tried" an impeachment was a political question, and could not be resolved in the Courts.-Facts:...
that judicial power may not be exercised in cases of impeachment
Impeachment in the United States
Impeachment in the United States is an expressed power of the legislature that allows for formal charges against a civil officer of government for crimes committed in office...
. Such cases are a political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
that are exempt from the appellate jurisdiction of the Supreme Court.
Further federal statutes
More recent examples of jurisdiction stripping include the following:- Illegal Immigration Reform and Immigrant Responsibility Act of 1996Illegal Immigration Reform and Immigrant Responsibility Act of 1996The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of vastly changed the immigration laws of the United States.This act states that if an immigrant has been unlawfully present in the United States for 180 days but less than 365 days...
(inter alia, stripped the federal judiciary of its jurisdiction to review certain Immigration and Naturalization ServiceImmigration and Naturalization ServiceThe United States Immigration and Naturalization Service , now referred to as Legacy INS, ceased to exist under that name on March 1, 2003, when most of its functions were transferred from the Department of Justice to three new components within the newly created Department of Homeland Security, as...
decisions), - Prison Litigation Reform Act of 1996 (restricting the remedies available to prison inmates),
- Antiterrorism and Effective Death Penalty Act of 1996Antiterrorism and Effective Death Penalty Act of 1996The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, is an act of Congress signed into law on April 24, 1996...
(limiting the number of habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
petitions available to prison inmates), - Detainee Treatment Act of 2005, ruled an unconstitutional denial of the right of habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
pursuant to the Suspension clause. Boumediene v. BushBoumediene v. BushBoumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
.
There have also been hundreds of unsuccessful bills in Congress to strip federal courts of jurisdiction.