Naked Came I: Jurisdiction-stripping and the Constitutionality of House Bill 3313

• Jurisdiction: United States,Federal
• Citation: Vol. 29 No. 04
• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 4SUMMER 2006

Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313

Jason J. Salvo(fn*)

I. Introduction

Our country was founded on the principle that there are fundamental human rights that should be beyond the reach of any government-not just a king, not just an elected executive, but any government, including even a majority of the representative Congress or state legislature.(fn1)

On July 22, 2004, the U.S. House of Representatives passed House Bill 3313, which strips original jurisdiction from federal courts and the Supreme Court of its appellate jurisdiction over same-sex marriage cases.(fn2) This bill comes at a time in our nation's history when our country is as politically divided as it has been in the past 150 years, when particularly divisive issues define voting patterns, and when many citizens believe that the Supreme Court has become much too political for its own good.(fn3) Additionally, House Bill 3313 comes before the Senate in the wake of eleven new state constitutional amendments passed in 2004 that define marriage as solely between a man and a woman,(fn4) with Texas joining that group in November 2005. In total, eighteen states have constitutional amendments prohibiting same-sex marriage and forty states have laws prohibiting same-sex marriage.(fn5) The House passed House Bill 3313 with the intent to take certain "political" issues out of the hands of the courts(fn6) and, in light of the political atmosphere of the country today, the bill may be the first true subject matter jurisdiction-stripping bill to become law.

On its face, Article III of the Constitution seems to give Congress the power to limit federal courts' original jurisdiction and the Supreme Court's appellate jurisdiction. Article III, Section 1 of the Constitution vests the judicial power of the United States in the Supreme Court, "and in such inferior Courts as the Congress may from time to time ordain and establish."(fn7) Commentators agree that Congress' power to create inferior federal courts includes the lesser power of granting and limiting jurisdiction to those courts.(fn8) Additionally, Article III, Section 2 grants appellate jurisdiction to the Supreme Court, "with such Exceptions, and under such Regulations as the Congress shall make."(fn9) The Exceptions and Regulations Clause seems to explicitly provide Congress with the power to limit the Supreme Court's appellate jurisdiction. In the Judiciary Act of 1789,(fn10) Congress interpreted the Exceptions and Regulations Clause just this way, creating a congressional mandate for Supreme Court appellate jurisdiction, and the Supreme Court has tacitly accepted this statutory grant of jurisdiction ever since.(fn11)

In his law review article, Professor Henry Hart responded to the questions of whether Congress had unlimited control of federal jurisdiction and whether this control was consistent with other provisions in the Constitution.(fn12) Though Professor Hart's article has been widely debated,(fn13) his overarching thesis is generally accepted:(fn14) Congress' power to restrict Supreme Court jurisdiction is bound by the requirement that the Court's "essential functions" may not be trammeled, but Congress' power to restrict lower federal court jurisdiction is broad.(fn15)

This Comment will build on Professor Hart's thesis, arguing that the essential functions of the federal judiciary are broader than what he and later commentators have purported. The federal judiciary's jurisdiction is protected by a three-tiered "essential functions" restriction.(fn16) First, Congress may not abridge federal courts' essential functions within the tripartite system.(fn17) Secondly, Congress may not abridge federal courts' essential functions as the "judicial power of the United States."(fn18) Finally, Congress may not violate any individual constitutional liberty in exercising its jurisdictional powers.(fn19) Ultimately, by expanding Professor Hart's essential functions thesis, this Comment will demonstrate that this three-step test is necessary to analyze the constitutionality of any jurisdiction-stripping act within our tripartite system of government.

Part II of this Comment will summarize the various theories of Congress' jurisdictional powers. Part III will examine the historical and philosophical roots of the Constitution and Congressional power. This section will illustrate that the framers' intent and the wording of the Constitution prevent Congress from altering the constitutional plan or preventing federal courts from performing its essential functions. Part IV will apply the preceding analysis to House Bill 3313 and ultimately conclude that Congress does not have the power to strip any federal court of the jurisdiction to hear same-sex marriage cases.

II. The Theoretical Underpinnings of Congressional Jurisdiction-Stripping Power

The crux of the debate surrounding congressional jurisdiction-stripping power is the question of whether state courts are proper fora for the adjudication of federal issues. The first scholars to address this issue based much of their analysis on the assumption that state courts and federal courts have coequal abilities to interpret federal issues.(fn20) This assumption led these scholars to conclude that Congress' power to strip federal courts of subject matter jurisdiction is broad.(fn21) Recently, however, many scholars have rejected this traditional position because they believe that state courts cannot sufficiently adjudicate many federal issues.(fn22) Although this Comment takes a wholly different approach to this debate, it is nonetheless important to understand the issue's ideological and theoretical underpinnings.

A. Justice Story

The first person to question Congress' ability to limit subject matter jurisdiction was Supreme Court Justice Story. In Martin v. Hunter's Lessee,(fn23) Justice Story argued that the language of "shall be vested" in Article III, Section 1 meant that the entire federal judicial power must be vested in some federal court.(fn24) Justice Story argued that the word "shall" was an imperative, mandating that a federal forum always be available for federal questions.(fn25) Justice Story further contended that because Article III vests judicial power wherever the Supreme Court lacks original jurisdiction, it logically follows that "[CJongress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the constitution, is exclusively vested in the United States, and of which the [SJupreme [C]ourt cannot take original cognizance."(fn26)

B. Professor Hart

Justice Story's assertions lay fallow until the 1950s when Professor Henry Hart sowed the seeds of the modern debate. In 1953, Professor Hart published a law review article in the form of an imaginary conversation between two interlocutors in which he argued that Congress had plenary control over the jurisdiction of lower federal courts and control over Supreme Court jurisdiction so long as the Supreme Court's essential functions were not abridged.(fn27) Professor Hart's article, because it was the first and most influential, is the jumping off point for this subject.

Professor Hart based his essential function argument on his reading of Ex Parte McCardle. (fn28) In McCardle, the Supreme Court upheld legislation that deprived it of appellate jurisdiction in habeas corpus cases by interpreting the Exceptions and Regulations Clause(fn29) as granting Congress the power to confer to the Supreme Court whatever appellate jurisdiction Congress sees fit.(fn30) He based his essential function theory on the argument that a broad reading of the Exceptions and Regulations Clause would "authorize exceptions which engulf the rule."(fn31) That is, Professor Hart believed that the Exceptions and Regulations Clause gives Congress explicit power to limit Supreme Court appellate jurisdiction, but that to interpret the clause too broadly would permit Congress to eliminate the Supreme Court's power of appellate review, one of the essential functions of the Supreme Court. Thus, Professor Hart argued that Congress' power under the Exceptions and Regulations Clause was broad, but could not be construed so broadly as to completely strip the Supreme Court of appellate review.(fn32)

Professor Hart reasoned that the Supreme Court's essential functions were not abridged in McCardle because the circuit courts remained open to hear habeas corpus cases and the Supreme Court could still entertain direct habeas corpus petitions.(fn33) Thus, the McCardle court did not destroy the essential role of the Supreme Court in the constitutional plan.(fn34)

However, Professor Hart did not specifically enumerate which functions were essential and he generally took a narrow view of such things.(fn35) He did not believe that the Constitution granted any right to bring cases in federal courts(fn36) and he further believed that the proper forum for all claims, constitutional or otherwise, was state court.(fn37)

With regard to restrictions on lower federal courts, Professor Hart argued that congressional power was plenary.(fn38) He argued that denial of federal court jurisdiction did not substantially affect a litigant's rights because state courts are the proper forum to bring federal and constitutional law questions.(fn39) Once federal...