The doctrine of political accountability and Supreme Court jurisdiction: applying a new external constraint to Congress's exceptions clause power.

• Author: Handman, Christopher T.

I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.(1)

But it is time we came to realize that in a democracy conflict over basic policy cannot be avoided and that when too long delayed it may, like Langston Hughes' dream deferred, explode.(2)

1. Introduction: Past Congressional Acts and a New Proposal to

   Limit congressional authority Under the Exceptions Clause

   Throughout the twentieth century, fundamental changes in political power often have ushered in novel and hostile attacks on the federal judiciary's jurisdiction. From the Roosevelt court packing plan,(3) through numerous proposals during the Reagan years to limit federal court jurisdiction,(4) to the recently enacted Antiterrorism and Effective Death Penalty Act of 1996,(5) the federal courts - and particularly the Supreme Court - often have occupied the center of political power struggles.

   With the 1994 "Republican revolution,"(6) dormant proposals to limit Supreme Court jurisdiction may have found new life.(7) In response to perceived abuses of the writ of habeas corpus, Congress enacted the Antiterorism Act to eliminate second or successive appeals of habeas applications to the Supreme Court.(8) Though rarely invoked during the history of the American republic, Congress exercised its Exceptions Clause power under Article III(9) to strip the Supreme Court of jurisdiction to hear appeals from lower court denials of second habeas petitions: "[T]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari."(10) In Felker v. Turpin, the Supreme Court resolved the legitimacy of the Act without addressing the constitutionality of the jurisdiction stripping provision.(11) Nonetheless, the Act presents grave questions about one of Congress's potentially greatest powers.

   Habeas corpus, however, represents but one controversial issue that has divided the Court and Congress. While the Court's decision in Casey v. Planned Parenthood(12) may have temporarily resolved a constitutional legal question, the decision did nothing to quell the fervor with which many Americans approach the issue of abortion.(13) Moreover, Congress remains preoccupied with the Court's 1989 decision invalidating a Texas flag burning statute.(14) Its recent failure to pass a constitutional amendment(15) that would have reversed the Court's ruling may impel some members of Congress to seek alternative means of escaping the Court's rulings. Set within this new political climate, the saliency of abortion, death penalty appeals, and other controversial constitutional issues may renew congressional efforts to restrict the Supreme Court's appellate jurisdiction over these classes of cases.(16)

   In the end, the Felker decision may be a lot of sound and fury signifying nothing about the Exceptions Clause. Of far greater significance, however, is the simple fact that Congress mustered the political will to strip the Supreme Court of its appellate jurisdiction. Whether the Antiterrorism Act is an anomaly or a precursor to increasing attempts at jurisdiction stripping remains to be seen. This Note attempts to provide a principled theory that may be applied if Congress once again tests its Article III power.

   In unqualified language, Article III of the Constitution provides that 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."(17) Scholars who have addressed this issue before have divided into two extremes: those who find Congress may act with plenary authority and those who would limit Congress's power so as not to intrude upon the Supreme Court's "essential functions."(18) Problems exist with both theories. The exceptional congressional power that the absolutists envision would undermine important constitutional structure. On the other hand, essential functions proponents are unable to reconcile their position with the literal language of Article III.(19) Yet there does exist common ground. All commentators recognize that Congress still must abide by "external" constitutional constraints. That is, generally applicable limitations on congressional lawmaking - equal protection and bill of attainder prohibitions, for example - do not vanish merely because Congress invokes its Exceptions Clause power.

   This Note suggests new constraints on Congress's power to restrict the Court's appellate jurisdiction. The recent importance attached to the doctrine of political accountability provides a different set of limits on congressional power under Article III. In the administrative law context, when Congress seeks to impose controversial policy, it often passes vague laws that delegate to other entities the authority to prescribe substantive policy. Such policy delegation facilitates Congress's ability to pass divisive legislation. Congress's diminished accountability to the electorate has captured the concern of courts and commentators alike - leading many to conclude that unaccountable legislation is unconstitutional legislation.(20)

   The doctrine of political accountability, as a generally applicable, external constraint on congressional power, requires Congress to address affirmatively underlying policy concerns when it seeks to revoke Court jurisdiction. Under this theory, Congress retains plenary authority to restrict the Court's jurisdiction over laws that Congress itself passes. If, for example, Congress passed its own flag burning law, and then stripped the Court of jurisdiction to hear challenges to the law, there would be no violation of political accountability because Congress squarely addressed the underlying issue: whether flag burning can be proscribed. But, political accountability militates against Congress insulating state laws from Court review in the manner that it traditionally has attempted to employ. Most, if not all, of Congress's recent jurisdiction stripping proposals deny the Court jurisdiction to hear any state law regulating abortion.(21) This sidesteps the fundamental policy determination: to what extent abortion should be regulated.

   The political accountability doctrine, however, is not so rigid as to prevent Congress from balancing whatever slight federalism interest there exists in exempting state laws from Court review. If Congress affirmatively decides the parameters within which the states may act, it will have accountably addressed the substantive policy questions. Thus, if Congress were to pass a law that "authorized" the states to regulate abortion so long as an exception were made for emergency health situations, and concomitantly exempted this statute from the Court's appellate jurisdiction, this would comport with political accountability. Here, Congress is acting notoriously; its "political decisions satisfy the fundamental principle that those with the power to make decisions should bear, to the fullest extent possible, the costs and benefits and the credit and blame for their decisions."(22)

   The application of the doctrine of political accountability to the Exceptions Clause has many advantages. First, it accepts Article III's literal language, and does not require novel linguistic acrobatics. Second, a natural product of this theory is that it will increase congressional deliberation. In turn, greater deliberation will likely minimize the frequency with which Congress invokes the Exceptions Clause, and suggests that when it does so, its proposals will reflect greater moderation than if it legislated free from accountability requirements. Although political accountability erects an important procedural limitation on Congress's Exceptions Clause authority, the substantive power remains as potent as ever; only now, Congress must muster a true national consensus before it legislates. Moreover, the doctrine is sensitive to federalism. Political accountability preserves Congress's ability to insulate state laws from Court review provided that Congress affirmatively delineates how far the states may legislate free from Court review. That political accountability requires Congress to define the limits of state action is no infringement on federalism. After all, Congress could impose no limits on state regulation, so long as it explicitly communicates this to the electorate through an open debate and vote.

   In this Note, Parts H and III examine the manner in which the Court and scholars have grappled with jurisdiction stripping. Part IV explores the evolution of political accountability, and applies the doctrine to the Exceptions Clause debate - demonstrating how this constitutional doctrine provides a salutary basis for defining congressional authority over the Court's exercise of judicial review. Part V offers a brief conclusion.

   2. From McCardle to Felker: An Examination of the Supreme

      Court's Approach to the Exceptions Clause

      Since the days of John Marshall,(23) the Supreme Court has been a perennial target of political attacks. While Congress has made several attempts to restrict Supreme Court jurisdiction,(24) it has succeeded only once.(25) Despite the limited opportunity for the Court to pass upon the constitutionality of this practice,(26) legal academics have more than made up for the lack of Court precedent.(27)

      1. Ex parte McCardle: The Court Addresses Jurisdiction Stripping

         The only opportunity for the Supreme Court to address directly the scope of Congress's power under the Exceptions Clause came in 1868.(28) Charged with various offenses under the Reconstruction Acts, including "disturbing the peace, inciting to insurrection and disorder, libel, and impeding reconstruction,"(29) McCardle unsuccessfully brought an action for...