September 2010, Volume 96, Issue 5
Jurisdiction-Stripping Reconsidered
by Richard Fallon
96 Va. L. Rev. 1043 (2010)
View PDF 
The literature exploring Congress’s power to “strip” jurisdiction from the federal courts has focused too narrowly on the text and original understanding of Article III. Even when analysis can profitably begin there, it is it often a fallacy to believe that it can terminate without consideration of other factors. Exclusively originalist analyses of Congress’s powers over jurisdiction cohere badly with, and often make little sense in light of, non-originalist doctrines defining substantive constitutional rights. The Supreme Court’s recent decision in Boumediene v. Bush, invalidating a jurisdiction-stripping provision under the Suspension Clause, provides a partial template for reconsideration of jurisdiction-stripping issues. As Boumediene illustrates, participants in jurisdiction-stripping debates need to reckon with issues of constitutional theory involving the appropriate synthesis of original understandings, when they are identifiable, with non-originalist doctrines and functional considerations.
The synthesis advocated in this Article reflects three broad themes. First, notwithstanding contrary language in a nineteenth century precedent, Congress’s purpose in enacting jurisdiction-stripping legislation may matter crucially to the question of constitutional validity. Legislation enacted for the purpose of inviting lower court defiance of Supreme Court precedents should be held unconstitutional under modern authorities that make constitutional permissibility depend on legislative motives. Second, Congress cannot use its power to control jurisdiction to preclude the award of constitutionally necessary remedies. In many cases, constitutional rights first recognized in the twentieth and twenty-first centuries entail rights to injunctions when no other remedy is available. Third, issues involving congressional preclusion of judicial jurisdiction are often bound up with issues involving the permissible use of non-Article III federal tribunals such as administrative agencies. Even when initial adjudication by a non-Article tribunal is permissible, as it was inBoumediene, the Constitution typically requires some mode of access to a constitutional court.
Click on an icon below to access the full text of this article*
 Westlaw |  LexisNexis |  HeinOnline |  SSRN |  Bloomberg
* These are third-party content providers; they may require a separate subscription or charge a fee for access.
|
|