In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of this provision, leaving the legislative and executive branches largely on their own in defining the scope of the "exceptions power." The debates over this provision shed light not only on how the political branches have construed Article III but also on how the political branches approach constitutional interpretation more generally. This Essay concludes by raising questions about whether, or the extent to which, the practices and constitutional interpretations of the political branches should inform the way in which the judiciary interprets Article III.
Many separation of powers questions--such as the scope of the war or treaty powers--rarely, if ever, reach the judiciary. Accordingly, those questions must of necessity be answered by the political branches. For this reason, scholars often excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the meaning of constitutional provisions. Indeed, "[arguments based on [such] historical practice are a mainstay of debates about the constitutional separation of powers." (1)
There is, however, far less focus on political branch practice in Article III scholarship. In this Essay, building on prior work, (2) I seek to raise questions about this Article III exceptionalism. I suggest that there are good reasons for scholars to consider the work of the legislature and the executive branch in analyzing Article III issues. As in other separation of powers arenas, many important questions arising under Article III have rarely, if ever, reached the judiciary and have instead been addressed by the political branches. (3) For example, the Supreme Court has said very little about Congress's power to make "exceptions" and "regulations" to the Court's appellate jurisdiction. (4) Thus, the political branches have largely been on their own in defining the scope of the "exceptions power."
Scholarly study of legislative and executive interpretations of Article III is important for two major reasons. First, such practices are likely to inform future executive and legislative debates. As described below, political actors often look at their own precedents in evaluating the constitutionality and propriety of jurisdictional proposals. Second, such scholarly study can provide insight into the way that the political branches approach constitutional interpretation.
I do not, however, assert that federal courts should necessarily treat political branch practice as authoritative evidence of the meaning of Article III, if and when similar issues reach the courts. In fact, I suggest that there are reasons for the judiciary to be cautious about relying heavily on the work product of political actors. The political branches may approach the process of constitutional interpretation in a way that differs considerably from what a judge deems appropriate. Moreover, it may be difficult for judges to discern whether a measure was enacted or rejected for constitutional, as opposed to policy, reasons. In sum, I suggest that the political branches and the judiciary may engage in distinct enterprises when they interpret the scope of Article III (and perhaps other constitutional provisions as well).
The Essay proceeds as follows. Part I focuses on the Exceptions Clause, providing a survey of executive and legislative practice with respect to that clause. Part II then examines what this survey might tell us about constitutional interpretation in the executive and legislative branches, and raises several questions about judicial reliance on such political branch practice.
CASE STUDY: THE EXCEPTIONS CLAUSE
In prior work, I documented many of the legislative and executive debates over congressional regulations of Supreme Court jurisdiction and offered political, structural, and institutional explanations for why jurisdiction-stripping measures have generally failed, and why more beneficial regulations have been enacted. (5) But my earlier work did not focus on the degree to which the debates occurred on constitutional terms. Here, I highlight the constitutional side of those political debates--to see how the political branches have given meaning to the Exceptions Clause.
Background: Text and the McCardle Case
Article III declares that the "judicial Power shall extend to all Cases" arising under federal law and that the Supreme Court "shall have appellate Jurisdiction" over such federal question cases. (6) The Constitution thereby seems to give the Supreme Court an important role in defining the content of federal law. But Article III goes on to provide that the Court's appellate review power is subject to "such Exceptions, and ... such Regulations as the Congress shall make." (7)
The Supreme Court has said very little about the scope of Congress's power under the Exceptions Clause. The Court's primary opportunity to construe the Clause occurred during the post-Civil War era, when William McCardle brought a habeas corpus action challenging the constitutionality of the federal laws governing Reconstruction. (8) While the case was pending in the Supreme Court, Congress enacted--over a presidential veto--a law restricting the Court's jurisdiction over direct appeals in habeas cases. (9) Congress's goal was apparently to prevent the Court from striking down the reconstruction laws in Ex parte McCardle. (10)
In McCardle, the Supreme Court applied this newly established limit on its appellate jurisdiction and dismissed McCardle's appeal. (11) In its decision, the Court emphasized the breadth of Congress's exceptions power: "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." (12) The Court went on to underscore, however, that the 1868 legislation had not cut off all avenues of Supreme Court review. (13) As the Court later explained in Ex parte Yerger, it could still review lower court decisions denying habeas relief because Congress had left in place its jurisdiction to hear original habeas petitions under the Judiciary Act of 1789. (14)
Scholars have long debated the implications of McCardle. Although many scholars view the case as demonstrating that Congress has plenary power over Supreme Court jurisdiction, (15) others insist that McCardle permits Congress to restrict jurisdiction only when it provides an alternative avenue of Court review. (16) The important point, for my purposes, is that political actors have recognized that McCardle is subject to varying interpretations and have not treated the case as the final word on the Exceptions Clause. Accordingly, legislative and executive officials have offered their own constructions of that provision of Article III.
The Exceptions Power in Congress Post-McCardle
In the century and a half since McCardle, (17) Congress has virtually never used its exceptions power to strip the Supreme Court's appellate jurisdiction. Instead, Congress has often used its power to facilitate the Court's capacity to oversee the lower courts--by creating and expanding discretionary certiorari review. The debates over these measures may shed light on legislators' views of the exceptions power.
The Rejection of Jurisdiction-Stripping Measures
Virtually every jurisdiction-stripping proposal in Congress has failed, often without emerging from committee. (18) I discuss here three jurisdiction-stripping efforts, which were in fact debated in Congress. These three examples suggest that legislators were concerned about not only the propriety but also the constitutionality of the proposed legislation.
Admittedly, the line between "constitutional" and "policy" arguments is not always clear. Take, for example, the (frequent) comments of legislators that restrictions on Supreme Court jurisdiction would undermine the uniform enforcement of federal law. (19) Although some scholars have asserted that preserving the uniformity of federal law is among the Supreme Court's essential constitutional functions, (20) others argue that uniformity--while perhaps desirable--does not rise to the level of a constitutional concern. (21) I do not attempt here to classify any particular argument as inherently a "constitutional" or "policy" one. Instead, I generally rely on the legislators' own characterizations of their arguments; if they claim to be making a constitutional argument, then I treat it as a constitutional argument.
One additional clarification. One of the trends that I have noticed in many jurisdiction-stripping debates--both those discussed here and others that I have reviewed in my prior work--is the emphasis on political branch precedent. Legislators were concerned both about the meaning of their own prior practices and (at least for those who opposed jurisdiction-stripping measures) with establishing a "bad" precedent for the future. I include these arguments here as well because legislators seemed to view their precedents as relevant to the constitutionality of jurisdiction-stripping measures.
Subversive Activity. In the late 1950s, Senators William Jenner and John Butler proposed a bill that would eliminate the Supreme Court's appellate jurisdiction over certain claims by suspected communists...