Jurisdiction stripping, constitutional supremacy, and the implications of Ex parte Young.

• Author: Weiman, Theodore J.

On July 22, 2004, (1) the House of Representatives passed the Marriage Protection Act of 2004, a bill that would strip the federal courts of jurisdiction over cases challenging the constitutionality of the 1996 Defense of Marriage Act. (2) Two months later, the House passed a similar bill that would curtail federal court jurisdiction for challenges to the constitutionality of the Pledge of Allegiance or its recitation. (3) Though perhaps unlikely to pass the Senate, the bills represent an attempt by Congress to avoid potential federal court determination of issues involving important areas of constitutional law (4) with the hope of obtaining particular substantive results in state courts. If the acts become law, the constitutional issues over which state courts would have the last word include the scope of the Full Faith and Credit Clause of Article IV (5) and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, (6) in cases affected by the Marriage Protection Act, as well as the Establishment Clause of the First Amendment, (7) in cases affected by the Pledge Protection Act. Jurisdiction-stripping proposals with similar purposes have been advanced in Congress since as early as 1830, (8) though such attempts have rarely been enacted into law and have never completely eliminated Supreme Court review of a particular substantive area of law. (9) However, because of the importance of the constitutional interests threatened by these attempts, and the prospect that Congress might someday enact such a law, (10) these proposals have stimulated an intense academic debate over the extent to which Congress may curtail the jurisdiction of federal courts, taking into account textual, doctrinal, historical, and policy considerations. (11)

These discussions have usually focused on isolated analyses of clauses in Article III of the Constitution, (12) and many theorists approach jurisdiction stripping primarily (if not solely) as a separation-of-powers issuer. (13) Besides proffering arguments based in the Constitution's text, those who believe that Congress has broad jurisdiction-stripping powers often justify their interpretations by contending that such powers serve as a majoritarian check on a countermajoritarian judiciary. (14) Opponents of jurisdiction-stripping proposals respond with their own textual arguments, supported by structural arguments that, by restricting federal court jurisdiction, Congress would be impermissibly weakening judicial independence and contravening the judiciary's proper role in our tripartite system of federal government--that of interpreting the Constitution and protecting constitutional rights. (15) Arguments on both sides are pertinent and well founded, making the separation-of-powers perspective on the jurisdiction-stripping debate compelling.

Yet jurisdiction-stripping laws would not, ipso facto, reverse Supreme Court decisions or dictate a required judicial construction of substantive law; (16) rather, state courts would remain to resolve the particular claims affected. (17) As a result, Congress's constitutional power to limit federal court jurisdiction could be viewed by proponents not only as a majoritarian check on the judiciary, but also as a function of our federalist system. That is, such power allows Congress to delegate judicial resolution of particular issues to the courts of the states rather than those of the federal government. (18) By complement, congressional curtailment of federal court jurisdiction could be viewed by opponents as violative of not only the proper separation of powers in our federal government, but also nationalist principles of federal supremacy that would militate against allowing states to be the final arbiters of federal--and in particular, constitutional--law.

From this perspective, the jurisdiction-stripping debate implicates the same competing concerns of federalism and nationalism that arise in other conflicts of constitutional law, notably the Supreme Court's sovereign immunity jurisprudence. While the Court has recognized a constitutionally protected sovereign immunity for states based on principles of federalism and state dignity, (19) it has tempered the effect of that interpretation with a counteracting nationalist strain of law under Ex parte Young. (20) This strain requires the availability of a federal forum in certain cases against state officials in order to uphold the Supremacy Clause of the Constitution. (21)

There is a striking similarity between the issues involved in analyzing sovereign immunity and jurisdiction stripping: in both cases, a federal forum for the vindication of federal or constitutional rights may be threatened; both bars are somewhat jurisdictional; and the sides of each debate generally correspond to ideologies of modern federalism and nationalism. (22) Further, many suits that would be barred in federal court if Congress were to restrict jurisdiction over a substantive issue are suits that are already partially barred by current sovereign immunity doctrine but given life under the Young exception. Plaintiffs who would normally be able to sue state officials in federal court for alleged constitutional violations under the Young exception (23) would lose that method of recourse in the areas covered by the jurisdiction-stripping law, even though the same pressing concerns that underlie the Young doctrine would remain. The similarities between the interests implicated by these two areas of constitutional debate make an analysis of sovereign immunity jurisprudence relevant in a discussion of jurisdiction stripping, (24) and may weigh in favor of recognizing a constitutional limitation on Congress's jurisdiction-stripping power based in the Supremacy Clause, much as Young serves a similar purpose for circumventing states' sovereign immunity.

Given the Supreme Court's current federalist momentum, it is possible that the Court might approach a jurisdiction-stripping law largely as a question of judicial federalism--the proper role of state and federal courts within the dual-court system (25)--and interpret Article III as allowing Congress essentially to divert substantive issues to state courts. The Supreme Court has consistently upheld the principle that our "system of federalism" is one "in which the state courts share responsibility for the application and enforcement of federal law"; (26) if the Court looks at a jurisdiction-stripping law from this perspective--viewing state courts as competent and appropriate to hear cases involving federal questions--the Court is unlikely to find within Article III any strong limits on Congress's power to restrict federal court jurisdiction. (27) Considering the increased prominence of federalist principles under the current Court and the implications this may have for Congress's power to restrict federal court jurisdiction, a new examination of jurisdiction stripping from a federalist perspective, tempered by its counteracting nationalist principle, is appropriate.

1. CONGRESSIONAL POWER TO CURTAIL FEDERAL COURT JURISDICTION

   1. The Traditional Theory of Jurisdiction Stripping

      The debate over jurisdiction stripping has traditionally isolated two areas of federal jurisdiction for analysis: the jurisdiction (both original and appellate) of lower federal courts and the Supreme Court's appellate jurisdiction. (28)

      The details of federal court jurisdiction are sketched in Article III of the Constitution, and the clauses therein have appropriately drawn the lion's share of academic discussion. (29) Section 1 states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," institutes life tenure for federal judges, and prohibits diminution of their pay while in office. (30) The scope of this "judicial Power" is described in the first clause of Section 2, which states that the power "shall extend" to the cases and controversies specified within the clause, including "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." (31) The second clause of Section 2 limits the Supreme Court's original jurisdiction to cases involving ambassadors, public ministers and consuls, and those in which a state is a party. (32) The clause also provides that "[i]n all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." (33)

      The traditional interpretation of Article III, advanced by those who support extensive congressional ability to limit jurisdiction, is that the maximum possible extent of federal court power is represented by the "Judicial Power" laid out in Section 2, Clause 1, and Congress may distribute that power as it sees fit, even if that means removing jurisdiction altogether (34) (with the exception of the Supreme Court's original jurisdiction). (35) Because Congress is not required to establish the lower federal courts at all, but rather "may from time to time ordain and establish" (36) them, Congress can define the jurisdiction of those courts however it wishes. (37)

      The textual basis for Congress's ability to restrict Supreme Court appellate jurisdiction is perhaps even more explicit, as the Constitution grants such jurisdiction to the Court "with such Exceptions, and under such Regulations as the Congress shall make." (38) Those who believe Congress has broad jurisdiction-stripping powers view this as an explicit, unqualified grant of congressional power to eliminate Supreme Court appellate jurisdiction (39) allow no appeal from lower federal courts or state supreme courts to the Supreme Court of the United States. (40)

      Proponents of this interpretation support their textual argument by contending that such...