Tuesday, February 06, 2018

My New Article on Jurisdiction Stripping -- And Why It's Timely

by Michael Dorf

There has been much speculation lately about whether President Trump will attempt to fire FBI Director Wray, Attorney General Sessions, Deputy Attorney General Rosenstein, and/or Special Counsel Mueller. Taking any of these actions would flout the core principle that no one is above the law, but most such actions would be constitutionally permissible, because Wray, Sessions, Rosenstein, and Mueller are all employed within the executive branch. In my view, a well-designed government would not permit a high-ranking official to exploit his power over personnel to derail an investigation into his own alleged wrongdoing, but in this respect our government may not be well-designed. Or if it is, the problem may be that the only remedy is impeachment, which, for political reasons having nothing to do with the gravity of the wrong, is off the table.

But if the president has some power to root out resistance to his offenses within the executive branch, and if he encounters scant resistance, indeed support, from the legislative branch due to party loyalty and cowardice, surely there is one place in government where the president's power does not extend: the independent judiciary.

Maybe, maybe not. The president, acting alone, has no power to override the courts, but with the aid of a compliant Congress, he can do quite a bit. True, there are norms that stand in the way, like the norm against Court packing. But norms only hold until they don't, and if recent history is our guide, norms regarding the courts are up for grabs. If you don't believe me, ask Merrick Garland.

Accordingly, now may be a good time to turn to harder stuff than norms--by which I mean to turn to constitutional law--to find limits to the power of political actors to undercut judicial checks on their power. And it just so happens that I've written a new article on one aspect of that topic: The limits on the power of Congress to strip courts of jurisdiction.



Lest I be accused of false advertising, I want to acknowledge up front that the article is written as an evergreen rather than as an intervention specifically for the current moment. Moreover, it addresses an aspect of the problem that does not directly tie into the norms currently breaking down. I inquire into the limits on the power of Congress to strip state courts of their jurisdiction. Still, the article connects to broader themes that may implicate the questions du jour.

By way of introduction for readers who have never taken (or have forgotten some of what they learned in) a law school class in Federal Courts, there is a robust body of scholarship addressing the question of how much control Congress can exercise over the jurisdiction of the federal courts. There is relatively little relevant case law from the SCOTUS, however, because, while bills have frequently been introduced to curtail the power of the courts to address controversial subjects (e.g., desegregation, school prayer, Pledge of Allegiance, same-sex marriage, etc), such bills have rarely passed.

But the failure of the bills to have passed in prior periods may reflect norms that are in the process of breaking down. Accordingly, the topic of jurisdiction stripping could become more important as a practical matter.

The jurisdiction stripping literature addresses three main topics: (1) What power does Congress have to strip jurisdiction from the lower federal courts? (2) What power does Congress have to strip jurisdiction from the SCOTUS; and (3) What power does Congress have to strip jurisdiction from all courts, including state courts.

The literature is, as I said, robust. Indeed, already 35 years ago, one scholar I quote in the article characterized it as "choking on redundancy." Accordingly, my article does not simply offer yet another variant on the existing menu of approaches. Instead, I address a question that has received, so far as I have been able to ascertain, no attention at all: What affirmative power does Congress exercise when it strips state courts of jurisdiction when it also closes federal courts?

By affirmative power I mean the source of power. When Congress acts, it must have affirmative power--such as the power to regulate interstate commerce or the power to spend money--derived from some grant in the Constitution and it may not violate any prohibitory language--such as the protection for free speech or the right to habeas corpus.

The literature on jurisdiction stripping with respect to questions (1) and (2) described two paragraphs up addresses affirmative power. Congress has the affirmative power to limit the jurisdiction of the lower federal courts because Article III gives Congress the power to "ordain and establish" lower federal courts in the first place, and the greater power not to create the lower federal courts includes the lesser power to create them but vest in them less than all of the jurisdiction allowed by Article III. Meanwhile, Congress has the affirmative power to limit the appellate jurisdiction of the SCOTUS because Article III entitles it to make "exceptions" to and "regulations" of that jurisdiction.

But oddly, the literature on jurisdiction stripping does not consider where Congress might derive the affirmative power to strip state courts of jurisdiction. Rather, it skips over that question to address whether there is a constitutional right to some judicial forum for certain sorts of claims and defenses such that stripping all courts of jurisdiction violates that right. That's an important question, to be sure, but the question of substantive power is antecedent to it.

So where does Congress get the power to strip state courts of their jurisdiction? My detailed answer is  in the article. Here I'll just quote the abstract:
The answer depends on the nature of the case. In stripping all courts of the power to hear federal statutory claims and challenges to federal statutes, Congress exercises whatever affirmative power authorizes the substantive statute. However, Congress lacks affirmative power to strip all courts of the power to hear constitutional challenges to state laws. That conclusion is important in its own right but also complements views—such as Henry Hart’s contention that the Supreme Court must have such jurisdiction as necessary to play its “essential role” in our constitutional system—about the scope and limits of congressional power under the Exceptions Clause of Article III. The limit on affirmative congressional power to strip state courts of jurisdiction to hear constitutional challenges to state laws ensures that there will be cases over which the Supreme Court can exercise its appellate jurisdiction in order to play its essential role.
I realize that the foregoing will be mysterious to the uninitiated. I wrote the article in a way that, I hope, will be accessible to people who are not deeply familiar with the extant jurisdiction-stripping literature. I also wrote it in a way that, I hope, will be of use to people who do know the relevant literature.

10 comments:

Shag from Brookline said...

Assuming Congress (in conjunction with the Executive) takes actions to strip state courts of certain of their jurisdiction, it would be up to SCOTUS to determine whether Congress has the constitutional power to do so. I assume that there may not be standing, justiciability issues to thwart states from challenging such actions. But SCOTUS is not immune to the political aspects of such congressional action. If SCOTUS were to declare Congress' action as unconstitutional, would that result in judicial supremacy over Congress and the Executive? I hope to get to read the article soon.

Joe said...

Let's say Congress strips state courts of some piece of their jurisdiction and litigants arise in that area. The state courts go ahead anyway -- arguing that the law is unconstitutional & they swore to uphold the federal Constitution -- and grant the litigants relief in that area. Let's say the litigants accept the state courts have jurisdiction since they want the state court do decide the matter.

Might be hard to enforce this sort of thing in the face of state resistance.

This might be covered in the article.

Michael C. Dorf said...

Joe: In your scenario, presumably the loser in state court would seek review in the SCOTUS, arguing that the state court lacked jurisdiction. Even though the loser consented to jurisdiction in the first place, objections to subject matter jurisdiction can't be waived. That would then call for a determination by the SCOTUS whether the j-stripping law was valid.

Asher Steinberg said...

I wonder if the latter half of Gorsuch's dissent in Artis might indirectly bear on your discussion in sub-part III.C (and to what extent his argument can be taken seriously).

Michael C. Dorf said...

Asher: Interesting point. There is definitely a connection here, but I think Gorsuch's argument--if read as anything other than an argument for constitutional avoidance--takes a too-restrictive view of N&P. Strictly speaking, Congress only needed to give 30 days from the end of the litigation in Artis, but N&P jurisprudence isn't usually that strict. If Congress had been explicit that it wanted the stop-clock approach of the majority, that would, I think, count as N&P in the McCulloch sense.

robert moss said...

Looking at the general question, Article III begins, "The judicial power...." In other words, it is assumed. It never occurred to the framers, the worst of whom were not a tenth as crazy and evil as Trump, that Congress would try to strip the courts of all power. In order to have a judicial power, there has to be jurisdiction over "all cases...arising under this Constitution" etc., and there have to be sufficient lower courts to handle the case load.

That, however, is not the end of the inquiry. No matter how correct the legal analysis, what if Congress decides to eliminate all lower courts? Or simply stop funding the courts? Certain things simply cannot be guaranteed by a piece of parchment (or a .pdf document). There has to be some minimum of commonly accepted norms. In the first Congress that minimum existed. The members reminded each other that they HAD to pass a Judiciary Act, and finally they did. The alternative is civil war. Trump and certain Republicans are leading us in that direction.

Joe said...

I think in various cases the losing litigant would not appeal to the Supreme Court.

Choi Minzi said...

Assuming Congress (in conjunction with the Executive) takes actions to strip state courts of certain of their jurisdiction, it would be up to SCOTUS to determine whether Congress has the constitutional power to do so. I assume that there may not be standing, justiciability issues to thwart states from challenging such actions. But SCOTUS is not immune to the political aspects of such congressional action. If SCOTUS were to declare Congress' action as unconstitutional, would that result in judicial supremacy over Congress and the Executive? I hope to get to read the article soon.

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Shag from Brookline said...

Query: If " ... the losing litigant would not appeal to the Supreme Court" what would be the impact of the Constitution's "supremacy clause" on that state court decision relative to Congress' stripping action?

Of course if the losing litigant did appeal, perhaps SCOTUS might not grant cert. Then what?

(I'm continuing reading Mike's article.)

John Barron said...

Robert Moss: "That, however, is not the end of the inquiry. No matter how correct the legal analysis, what if Congress decides to eliminate all lower courts? Or simply stop funding the courts?"

That question has already been elided by the courts. Cogswell v. United States Senate, No. 09-1134 (10th Cir. 2009) https://law.justia.com/cases/federal/appellate-courts/ca10/09-1134/09-1134-2011-03-14.html

Cogswell, a G'town Law grad w/40 years experience at bar, complained that the District of Colorado's courts were so egregiously understaffed that it deprived him of the right to meaningful access to the courts. The magistrate, under apparent orders from Judge Blackburn, shit-canned it; Blackburn didn't even review it as required.

His sin: filing in pro per. Pro se litigants are the dirty ni6666ers of federal court, who won't be served at that lunch counter.

Take away all avenues for the vindication of a right, and you take away the right. Poindexter v. Greenhow.