Jurisdiction stripping

In United States law, jurisdiction-stripping (also called court-stripping or curtailment-of-jurisdiction) is the limiting or reducing of a court's jurisdiction by Congress through its constitutional authority to determine the jurisdiction of federal courts and to exclude or remove federal cases from state courts.

Basis

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 said the following about the issue in The Federalist Papers:

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 (currently $75,000), 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]

Limits

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. Congress can limit only 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 has not been interpreted by the Court as meaning that it has original jurisdiction merely because a state is a plaintiff or defendant, even if a provision of the U.S. Constitution is at issue. Rather, the Court has stated that 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 in a dissenting opinion that "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred."^[24]

In 1972, Chief Justice Warren Burger made it known, concurring with the denial of certiorari to Volpe v. D. C. Federation of Civic Associations, that he believed Congress could do anything in its power to make its intentions clear, "even to the point of limiting or prohibiting judicial review of its directives in this respect." This was recorded in reference to a particular dispute with a court of appeal, which he accused of "unjustifiably frustrat[ing] the efforts of the Executive Branch to comply with the will of Congress."^[25] However, 10 days earlier, President Nixon had made a statement indicating his opposition to school busing for racial integration. In that context, Burger's statement was interpreted at the time as suggesting that Congress prohibit busing with legislation and enforce that legislation with jurisdiction stripping.^[26][27]

In-exhaustive list of federal jurisdiction stripping statutes

There are a number of current federal statutes that strip courts from having jurisdiction. The following is an in-exhaustive list:

• Provisions accompanying the Real ID Act waived various requirements of federal law with respect to construction of a Mexico–United States border wall and provided, as compiled in the United States Code, that:

"(A) In general.— The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph."

— 8 U.S. Code § 1103, statutory notes detailed therewith.

• Numerous provisions of the Norris–La Guardia Act of 1932, as compiled across the United States Code, limit the jurisdiction of federal courts in certain labor matters. The following provision is just one of the many contained in that law:

"No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter."

— 29 U.S. Code § 101

• A provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (also known as I.I.R.A.I.R.A.), as compiled in the United States Code, states across two paragraphs:

"(1) Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated[; and] (2) notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law."

— 8 U.S. Code § 1252, subsection (f), paragraphs (1) and (2) thereof.

• A provision of the Protection of Lawful Commerce in Arms Act of 2005 (also known as P.L.C.A.A.), as compiled in the United States Code, states across two subsections that:

"(a) A qualified civil liability action may not be brought in any Federal or State court[; and] (b) a qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending."

— 15 U.S. Code § 7902, subsections (a) and (b) thereof.

• A provision of the Portal to Portal Act of 1947, as compiled in the United States Code, states that:

"(d) No court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any action or proceeding, whether instituted prior to or on or after May 14, 1947, to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], under the Walsh-Healey Act, or under the Bacon-Davis Act,1 to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section."

— 29 U.S. Code § 252, subsection (d) thereof.

• A provision of Trans-Alaska Pipeline Authorization Act of 1973, as compiled in the United States Code, states that:

"(d) The actions taken pursuant to this chapter which relate to the construction and completion of the pipeline system, and to the applications filed in connection therewith necessary to the pipeline’s operation at full capacity, as described in the Final Environmental Impact Statement of the Department of the Interior, shall be taken without further action under the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.]; and the actions of the Federal officers concerning the issuance of the necessary rights-of-way, permits, leases, and other authorizations for construction and initial operation at full capacity of said pipeline system shall not be subject to judicial review under any law except that claims alleging the invalidity of this section may be brought within sixty days following November 16, 1973, and claims alleging that an action will deny rights under the Constitution of the United States, or that the action is beyond the scope of authority conferred by this chapter, may be brought within sixty days following the date of such action. A claim shall be barred unless a complaint is filed within the time specified. Any such complaint shall be filed in a United States district court, and such court shall have exclusive jurisdiction to determine such proceeding in accordance with the procedures hereinafter provided, and no other court of the United States, of any State, territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any such claim whether in a proceeding instituted prior to or on or after November 16, 1973. Such court shall not have jurisdiction to grant any injunctive relief against the issuance of any right-of-way, permit, lease, or other authorization pursuant to this section except in conjunction with a final judgment entered in a case involving a claim filed pursuant to this section. An interlocutory or final judgment, decree, or order of such district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States."

— 43 U.S. Code § 1652, subsection (d) thereof.

• Section 324 of the Fiscal Responsibility Act of 2023 (concerning the Mountain Valley Pipeline) states as follows in subsection (e) thereof:

"(1) Notwithstanding any other provision of law, no court shall have jurisdiction to review any action taken by the Secretary of the Army, the Federal Energy Regulatory Commission, the Secretary of Agriculture, the Secretary of the Interior, or a State administrative agency acting pursuant to Federal law that grants an authorization, permit, verification, biological opinion, incidental take statement, or any other approval necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline, including the issuance of any authorization, permit, extension, verification, biological opinion, incidental take statement, or other approval described in subsection (c) or (d) of this section for the Mountain Valley Pipeline, whether issued prior to, on, or subsequent to the date of enactment of this section, and including any lawsuit pending in a court as of the date of enactment of this section[; and] (2) the United States Court of Appeals for the District of Columbia Circuit shall have original and exclusive jurisdiction over any claim alleging the invalidity of this section or that an action is beyond the scope of authority conferred by this section."

— SEC. 324. EXPEDITING COMPLETION OF THE MOUNTAIN VALLEY PIPELINE., Pub. Law 118-5, 137 Stat. 10, 2023.

• Section 706 of the Supplemental Appropriations Act of 2002 (concerning wild-land fire management) states as follows in subsection (j) thereof:

"(j) Process.—Due to the extraordinary circumstances present here, actions authorized by this section shall proceed immediately and to completion notwithstanding any other provision of law including, but not limited to, NEPA and the National Forest Management Act (16 U.S.C. 1601 et seq.). Such actions shall also not be subject to the notice, comment, and appeal requirements of the Appeals Reform Act, (16 U.S.C. 1612 (note), Pub. Law No. 102-381 sec. 322). Any action authorized by this section shall not be subject to judicial review by any court of the United States."

— SEC. 706., Pub. Law 107-206, 116 STAT. 820, 2002.

• The Gun Lake Trust Land Reaffirmation Act of 2014 is an example jurisdiction stripping public law which was upheld as constitutional. For more information, see Patchak v. Zinke (2018). The particular provisions in question are subsections (a) and (b) thereof, which read as follows:

"(a) The land taken into trust by the United States for the benefit of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians and described in the final Notice of Determination of the Department of the Interior (70 Fed. Reg. 25596 (May 13, 2005)) is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed[; and] (b) notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed."

• A recent piece of jurisdiction stripping legislation which has been held unconstitutional is section 7 of the Military Commissions Act of 2006 (held unconstitutional in Boumediene v. Bush). The provision was held as an unconstitutional violation of the Suspension clause, and as compiled in the United States Code, reading as follows:

"(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination[; and] (2) except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

— 28 U.S. Code § 2241, subsection (e), and paragraphs (1) and (2) thereof.

Additionally, there have also been hundreds of unsuccessful bills in Congress to strip federal courts of jurisdiction.^[28][29]

See also

• Ouster clause
• Separation of powers under the United States Constitution

References

1. Farber, Daniel A., "Legislative Constitutionalism in a System of Judicial Supremacy", in 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 Archived 2011-02-03 at the Wayback Machine, 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 Archived 2012-03-05 at the Wayback Machine", 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. Amar, Akhil. "A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction Archived 2012-03-19 at the Wayback Machine", 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; Reva B. Seigel (2006). Processes of Constitutional Decisionmaking: Cases and Materials (6th 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 Archived 2009-03-06 at the Wayback Machine", 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, 514-15 (1869). 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, 386 (1881): "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, 655 (1949). 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. Volpe v. D. C. Federation of Civic Associations, 405 U.S. 1030 (Supreme Court of the United States March 27, 1972).
26. "The Chief Oversteps". The New York Times. 1972-04-03. ISSN 0362-4331. Retrieved 2020-09-16.
27. Kohlmeier, Louis M. Jr. (1972). God Save This Honorable Court: The Supreme Court Crisis. Charles Scribner Sons. ISBN 9780684127439.
28. Keynes, Edward and Miller, Randall. The Court vs. Congress: Prayer, Busing, and Abortion, p. 306 (1989).
29. Choate, Alan (2006-06-06). "Cannon tries to ban federal courts from hearing state porn cases". The Daily Herald. p. A1. Archived from the original on August 15, 2006. Retrieved 2006-11-12.