Defining the Article Iii Judicial Power: Comparing Congressional Power to Strip Jurisdiction With Congressional Power to Reassign Adjudications

• Jurisdiction: United States,Federal
• Citation: Vol. 53
• Publication year: 2022

53 Creighton L. Rev. 111. DEFINING THE ARTICLE III JUDICIAL POWER: COMPARING CONGRESSIONAL POWER TO STRIP JURISDICTION WITH CONGRESSIONAL POWER TO REASSIGN ADJUDICATIONS

DEFINING THE ARTICLE III JUDICIAL POWER: COMPARING CONGRESSIONAL POWER TO STRIP JURISDICTION WITH CONGRESSIONAL POWER TO REASSIGN ADJUDICATIONS

ANDREA OLSON ^[*]

Separation of powers principles find their way into countless United States Supreme Court opinions, providing justifications for a variety of rules-from the nondelegation doctrine to standing. Predictably, they are also found in cases where the Court defines the amount of power the legislative branch should have over the judicial branch and over adjudications as a whole. The Court's decisions detailing Congress's power to control the federal judiciary by stripping jurisdiction and Congress's power to control adjudications through delegations to legislative courts both rely heavily on separation of powers principles. Curiously, however, the rules come out seemingly opposite. On the one hand, the Court holds that separation of powers requires that Congress have wide, perhaps limitless, latitude to assign or withdraw jurisdiction from Article III courts. On the other, the Court holds that separation of powers prohibits Congress from assigning jurisdiction over certain claims to non-Article III courts. This article examines the puzzling divergence of those rules, with a focus on the distinct separation of powers principles the Court uses to justify them. Finding that the principles applied in the two rules are logically inconsistent, this article asks how the Court found itself in such a logical bind.

I. INTRODUCTION

The independence of the federal judiciary has never been more important and has never gathered as much attention from the American public. Yet many, who have long been taught of the United States' three separate and coequal branches of government, would be shocked to learn about the extraordinary power that the political branches have over the type of disputes that federal courts are permitted to adjudicate. The power of Congress to control the jurisdiction of the federal courts has been a fascination of scholars for years. And yet, an interesting and important inconsistency in the law poses a problem that should put this purportedly vast power of Congress into question.

Suppose Congress were to pass and the President were to sign a bill that created a tribunal, housed under and subject to the oversight of the executive branch, responsible for adjudicating any and all emoluments- related disputes-the Block and Restrict Inappropriate Benefits and Emoluments Court ("the BRIBE Court"). BRIBE Court members could be selected by the President, though no advice or consent by Congress is needed, and the President is authorized to remove and replace members of the BRIBE Court at any time. Judges on the BRIBE Court are well-compensated, but their salaries, like their tenure, are subject to adjustment at the President's discretion. Imagine that this statute gives the BRIBE Court the power to adjudicate any claims alleging that a federal elected official failed to comply with his or her obligations under the Emoluments Clause of the Constitution. ^[1] In creating this tribunal, however, suppose Congress also announced that the federal Article III district and circuit courts of the United States no longer had jurisdiction to hear emoluments-related cases, nor could they hear challenges to the constitutionality of the BRIBE Court. Similarly, Congress's BRIBE Court statute proscribed that the United States Supreme Court's appellate jurisdiction would not extend to such claims, including appeals from the BRIBE Court itself. In other words, the BRIBE Court would have exclusive jurisdiction over any claims of emolument violations, with no federal court oversight or review.

As to the first prong of this statute, the Supreme Court would certainly deem problematic the BRIBE Court's jurisdiction over constitutional emoluments-related claims. Because the BRIBE Court was created by Congress and lacks the tenure and salary protections mandated by Article III, it would be considered a non-Article III court. The Court has held that Congress may not assign "Stern claims"common law claims traditionally adjudicated by state courts or Article III courts-for final review by non-Article III courts because doing so would disrupt the "purpose" of Article III and the "integrity of judicial decision making." ^[2] The same is surely true for constitutional claims, as they too have traditionally been adjudicated by state courts or Article III courts. Congress has never passed legislation to grant a non-Article III court exclusive authority to adjudicate constitutional issues; ^[3] however, the Supreme Court would almost certainly view such constitutional claims akin to "Stern claims" and would see any efforts to reassign their adjudication to non-Article III courts as disrupting Article III. Because "the stuff of the traditional actions at common law" is part of the "judicial power," which Article III of the Constitution vests in Article III courts, ^[4] the Supreme Court likely would hold that Congress's BRIBE Court unconstitutionally encroached on the authority of the judicial branch to adjudicate constitutional questions, including those related to emoluments.

However, any effort by the Court to declare the tribunal problematic would be frustrated by the fact that in the very same statute Congress stripped it of jurisdiction to hear claims challenging the constitutionality of the non-Article III tribunal in the first place. Since, "a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power," ^[5] the Court may find itself powerless to issue a finding of unconstitutionality. Indeed, as the Court held over a century ago, "when [jurisdiction] ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." ^[6]

***

The Supreme Court has stated, on several occasions, that Congress has plenary authority over the jurisdiction of Article III federal courts. ^[7] This authority includes Congress's power not to grant the federal courts jurisdiction over a category of disputes altogether, without which federal courts may not hear a claim. ^[8] Congress's authority extends, it appears, to any efforts to remove or "strip" jurisdiction previously vested in Article III courts, whether based on the estimated value of the claims (amount-in-controversy) or based simply on a subject matter that Congress no longer wishes for the federal courts to handle. ^[9] By contrast, the Court has forcefully rejected the idea that Congress could grant non-Article III courts the power to adjudicate certain claims in certain contexts, a rule based on Article III's reservation of the "judicial power" for Article III courts. ^[10]

Intuitively, based on the immense power that Congress has to assign, withhold, or remove jurisdiction of federal courts over any type of claim, one might also infer that Congress would be permitted to vest jurisdiction over those same claims in any adjudicatory body of its choosing. The power to give or not to give something to one party might instinctively seem to include the power to give that same thing to another. The Court, however, has treated these two rules for Congress's authority-its power to strip Article III courts of jurisdiction and its power to choose an entity in which to vest jurisdiction-very differently. The Court reads the Constitution as allowing Congress to give or remove jurisdiction for certain claims to Article III courts but not to give that same jurisdiction to non-Article III courts. It is not necessarily a logical fallacy to say that it is permissible to take something away from one party and impermissible to take that same thing and give it to another party. Yet, the Court's radically different treatment of Congress's power in these two areas is still inconsistent. This Article seeks to illustrate that inconsistency-found in the Court's holdings and in the underlying principles justifying the rules-and to explore possible reasons for the divergent treatment.

A great deal of scholarship has explored each of these two areas of the Court's jurisprudence, assessing whether the Court has identified the correct rule based on constitutional text, historical practices, functional administrability in modern times, and structural constitutional principles. ^[11] Even more scholarship analyzes separation of powers principles in the Constitution broadly, including the way in which the Court applies those principles in making determinations about Congress's powers with respect to adjudications.

This Article takes a unique approach by examining jurisdiction-stripping and non-Article III court jurisprudence side-by-side, since both areas of law address the amount of power Congress should have over the judicial branch and adjudications as a whole. Looking at the Court's rules and at the underlying separation of powers justifications for those rules, this Article assesses whether the Court has been logically consistent in its treatment of the two. This Article examines the seeming discrepancy of a court that is greatly troubled by the balance of power when considering Congress's assignment of adjudicatory responsibilities to non-Article III courts but also is somehow quite comfortable with the balance of power when it considers Congress's ability to...