MORE ON JURISDICTION STRIPPING (MARRIAGE PROTECTION ACT): Josh Chafetz

MORE ON JURISDICTION STRIPPING. In response to this post, some people have taken issue with my constitutional reasoning. An articulate example is T.M. Lutas' post. He writes:

"If a court is created by statute, the Congress is the body granting jurisdiction, no? And Whatsoever Congress grants, Congress can take away. A court created by Congress, could even be closed up and done away with entirely so what makes this lesser reduction of authority somehow illegitimate? ...The reality is that the judicial power of a subsidiary court to take up a question is either based in the Congressional authorizing statute which lays out their jurisdiction (and thus amendable by act of Congress, like HR 3313) or it flows from the Supreme Court itself, which can only grant to its subordinate bodies what powers it already has. If it can't do something, what Constitutional power does a lesser court have that is denied to the highest judicial body in the US?"

Lutas' reasoning is flawed. Here's why. Article III of the Constitution says the following:(1) The judicial power of the United States shall extend to all cases presenting federal questions. (Art. III, sec. 2, cl. 1). Shall is not the same as may -- "shall" is non-discretionary. It would be unconstitutional for the judicial power of the United States not to extend to these cases.
(2) The federal judiciary must consist of a Supreme Court. It may also consist of inferior courts, as Congress shall direct. (Art. III, sec. 1).
(3) The Supreme Court must have original jurisdiction over certain enumerated classes of cases. Congress may make exceptions as to the appellate jurisdiction of the Supreme Court over other types of cases. (Art. III, sec. 2, cl. 2).

Here's what we can conclude from this. Combining (1) and (2): If Congress does not create any inferior courts, then the Supreme Court, as the entirety of the federal judiciary, must exercise all of the functions of the federal judiciary. This means that it must have jurisdiction over all federal questions. This would be original jurisdiction (it couldn't be appellate -- there are no lower court from which to appeal). In this case, (3) would be irrelevant -- Congress' power to limit the Supreme Court's appellate jurisdiction wouldn't come into play because the Supreme Court would be exercising original jurisdiction, not appellate. Result: the Supreme Court would have to be able to exercise jurisdiction over federal questions cases.

Now, what if Congress does create inferior courts? Then the federal judiciary (i.e., that branch which exercises the judicial power of the United States) would consist of a Supreme Court and some inferior courts. Again, combining (1) and (2), we see that this branch must have jurisdiction over federal questions cases. Congress, however, can determine how this jurisdiction is to be exercised within the federal judiciary. That is, it can choose not to grant jurisdiction over these cases to the inferior courts -- but in that case, since someone in the federal judiciary has to have jurisdiction (according to (1)), the Supreme Court would have to exercise original jurisdiction, which, again, would not be subject to Congress' ability to strip the Supreme Court's appellate jurisdiction. Alternatively, Congress can choose to grant jurisdiction to the lower courts but to strip appellate jurisdiction from the Supreme Court. That's fine, because it leaves the inferior federal courts with jurisdiction. Finally, it can give jurisdiction to the lower federal courts and leave appellate jurisdiction with the Supreme Court (that's the current state of the law.)

Lutas is thus right that, "If a court is created by statute, the Congress is the body granting jurisdiction, no? And Whatsoever Congress grants, Congress can take away." Congress can take away the jurisdiction of those courts that it creates -- i.e., the inferior federal courts. But in no circumstances can Congress strip the entire federal judiciary of jurisdiction over federal questions. That's the meaning of (1) above. So all that Congress' stripping the federal question jurisdiction of the lower courts would do is give the Supreme Court original jurisdiction over the federal question presented. And Congress could not, then, take that away -- at least, not without giving it to some other (inferior) federal court. And that's why H.R. 3313 is unconstitutional.

UPDATE: Two further thoughts: (1) People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2's statement that the federal 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" doesn't actually mean that the federal judicial power shall extend to all such cases.
(2) People who disagree with me also need to explain the Eleventh Amendment. After all, the Eleventh Amendment is just a jurisdiction stripping measure. (It strips diversity jurisdiction rather than federal question jurisdiction, but I can't see why that would be relevant.) If Congress can constitutionally strip jurisdiction at any time, then why go to all the trouble of passing a constitutional amendment for the purpose? To put it differently, if you disagree with my analysis above, then, assuming the Eleventh Amendment hadn't passed, why, on your theory of Article III, couldn't Congress simply have passed the Eleventh Amendment as an ordinary statute? And if they could have, why didn't they in the first place?

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posted by Eve at 4:19 PM VOTE

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