By Mike Dorf
My latest Verdict column addresses the procedural question raised by the Supreme Court mandamus petition of Electronic Privacy Information Center (EPIC) challenging the government's collection of Verizon customer "metadata." I explain why the Court is arguably without jurisdiction to grant the petition and, in any event, almost certainly won't grant it as a matter of its equitable discretion. For the latter point (spoiler alert!), I rely on the fact that EPIC has other options available: In particular, it can simply sue Verizon and/or government officials for injunctive relief in federal district court.
Here I want to raise a question that my analysis in the column suggests. Suppose Congress thinks that federal district court litigation of FISA court orders should also be foreclosed and accordingly strips all courts, including the U.S. Supreme Court, of the authority to entertain challenges to NSA surveillance. Would that be permissible?
Alumni of the federal courts class--which I regard as the most important course in law school for anyone who wants to litigate in the federal courts, but then, I teach it, so take that with a grain of salt--will instantly recognize the question as the "holy grail" of the subject area. In 1953, Henry Hart published a law review article that was styled as a Socratic dialogue, in which he raised a bewildering set of questions about federal jurisdiction, but the central question he asked was this: how much power does Congress have to control the jurisdiction of the federal courts?
The text of the Constitution, standing alone, appears to give Congress near-complete control over federal court jurisdiction: (1) Pursuant to the so-called "Madisonian Compromise" at the Constitutional Convention between those who wanted there to be lower federal courts and those who thought such courts unnecessary, Article III gives Congress the power to create as many or as few federal courts as it wishes, and thus, it is generally assumed, to vest in them as much or as little of the jurisdiction described in Article III as it wishes; and (2) Although the Constitution sets out the appellate jurisdiction of the Supreme Court, it also authorizes Congress to make "Exceptions" to that jurisdiction. Accordingly, under one fairly straightforward reading of Article III, Congress could strip both the lower federal courts and the Supreme Court of the power to adjudicate any or all cases.
Yet a moment's reflection reveals that Congress may not draw any lines it wishes when it comes to jurisdiction. In particular, constitutional provisions outside of Article III--such as the Fifth Amendment Due Process Clause--impose limits on how Congress carves up jurisdiction, just as such provisions limit how Congress may exercise any of its other powers. For example, although Congress could completely eliminate the diversity jurisdiction of the federal district courts, it cannot restrict diversity jurisdiction to cases in which the plaintiff is a white person or a man, because such a restriction would violate the equal protection component of the Fifth Amendment's Due Process Clause. Nearly everyone agrees that Congress is bound by such "external" limits.
The trickier questions are whether there are any limits that are "internal" to Article III and, if so, what they are. Hart himself thought that Congress could not use its power under the Exceptions Clause in such a way as to undermine the essential functions of the Supreme Court. More recently, Larry Sager argued that, at a minimum, that means preserving jurisdiction in constitutional cases.
Another source of proposed limits can be traced to Justice Story, who elaborated a theory under which Congress was obligated to ensure that some federal forum was available for just about all categories of cases that are preceded by the word "all" in Article III. Akhil Amar revived and refined Story's theory some years ago.
Finally, and to my mind most compellingly, Larry Tribe argued in the early 1980s that, whatever else Congress may do to control the jurisdiction of the federal courts, it may not engage in "jurisdictional gerrymandering"--i.e., it may not, in the guise of a jurisdictional statute, disfavor particular constitutional rights. Bills that would do just that--e.g., to strip the federal courts of the power to hear cases involving challenges to the Pledge of Allegiance or to abortion restrictions--have been floated from time to time, but rarely enacted.
Perhaps the most notorious example of a jurisdictional gerrymander that did get enacted was the Portal-to-Portal Act of 1947. The substantive provisions of the Act deprived workers of certain overtime compensation that they had previously been held to be entitled under the Fair Labor Standards Act (FLSA). The procedural provisions stripped the federal courts of the power to enforce awards based on the more generous reading of the FLSA that the substantive provisions repudiated. The validity of the jurisdictional provision was never adjudicated by the Supreme Court but in Battaglia v. General Motors, the U.S. Court of Appeals for the Second Circuit upheld the jurisdiction-stripping; however, it did so (it said) only because it thought that the substantive provision was valid. If the substantive provision had been invalid--i.e., if the workers were constitutionally entitled to their remedy under the FLSA--then the court implied that Congress could not eliminate any forum for its enforcement.
Battaglia's impact is unclear for multiple reasons: (1) The SCOTUS never affirmed it; (2) It suggests there are limits on jurisdiction-stripping but doesn't find any in the particular case; and (3) It appears to collapse the internal and external questions. In other cases in which Congress has appeared to engage in jurisdiction-stripping, the Supreme Court has bent over backwards to read the statutory language as preserving jurisdiction, and thus has studiously avoided deciding the precise scope of the general power of jurisdiction-stripping. (The Court has clearly limited the power of Congress to strip the federal courts of jurisdiction in habeas corpus cases, but it has done so pursuant to the Suspension Clause of Article I, not pursuant to Article III).
The Portal-to-Portal Act was notable not only for stripping federal courts of jurisdiction but also stripping jurisdiction from state courts. Sometimes jurisdiction-stripping proposals leave the state courts available as a possible venue for bringing federal claims. That's problematic from a policy perspective, because with Supreme Court review eliminated, there's no body that can maintain the uniformity of federal law, but it's not clear that it would be unconstitutional for Congress to relegate some category of federal law claims to state courts only. That category is limited, however, by the fact that some of the most important cases would be ones in which the plaintiff seeks injunctive relief against a federal official, but the Supremacy Clause has generally been interpreted to bar such state-to-federal orders.
So, to return to the framing question: Could Congress strip the courts of the power to entertain challenges to FISA orders by surveillance targets? The answer is a resounding maybe.