Jurisdiction stripping refers to the practice of defining the jurisdiction of the United States federal judiciary as to eliminate its ability to hear certain classes of claims, thereby making certain legislative or executive actions unreviewable by the judiciary.

Basis

Congress may define the jurisdiction of the judiciary through the simultaneous use of two powers: First, Congress holds the power to create (and implicitly, to define the jurisdiction of) federal courts inferior to the Supreme Court (Courts of Appeals, District Courts, and various other Article I and Article III tribunals). This power is granted both in congressional powers clause (Art. I, § 8, Cl. 9) and in the judicial vesting clause (Art. III, § 1). Second, Congress holds the power to make exceptions to and regulations of the appellate jurisdiction of the Supreme Court. This power is granted in the Exceptions Clause (Art. III, § 2). By exercising these powers in concert, Congress may effectively eliminate any judicial review of certain federal legislative or executive actions and of certain state actions.

Limits

Congress may not strip the Supreme Court of jurisdiction over those cases that fall under its original jurisdiction defined in the U.S. Constitution. Art. III, § 2 grants original jurisdiction to the Supreme Court to "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party. . . ."

Additionally, Justice Joseph Story, in his opinion in Martin v. Hunter's Lessee and in his other writings, enunciated the theory that Congress may not concurrently remove the jurisidiction of inferior courts and the appellate jurisdiction of the Supreme Court over certain categories of claims, as doing so would violate the Constitution's mandatory grant of jurisdiction over such claims to the judiciary as a whole. Art. III, § 2 of the U.S. Constitution grants to the federal judiciary jurisdiction over certain categories of claims:

The judicial Power shall extend to 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;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States[;—between a State and Citizens of another State];—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States[, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects].

Professor Henry M. Hart has enunciated the opposite view that Congress may strip the power of the federal judiciary to hear certain classes of cases.^[1]

Examples

During Reconstruction Congress withdrew jurisdiction from a case the U.S. Supreme Court was then in the process of adjudicating. In terminating the case Ex Parte McCardle, 74 US 506 (1869), the Justices acknowledged the authority of Congress to intervene.

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.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.^[2]

In 1882 the Supreme Court again conceded that its own "actual jurisdiction is confined within such limits as Congress sees fit to describe.?^[3] Again, in 1948 Supreme Court Justice Felix Frankfurter conceded: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred."^[4]

More recent examples of jurisdiction stripping include the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (inter alia, stripped the federal judiciary of its jurisdiction to review certain Immigration and Naturalization Service decisions), the Prison Litigation Reform Act of 1996 (restricting the remedies available to prison inmates), and the Antiterrorism and Effective Death Penalty Act of 1996 (limiting the number of habeas corpus petitions available to prison inmates).^[5] Other attempts at jurisdiction stripping include the Pornography Jurisdiction Act, Constitution Restoration Act of 2005 (H.R. 1070), Marriage Protection Act of 2005 (H.R. 1100), Pledge Protection Act of 2005 (H.R. 2389), Public Prayer Protection Act (H.R. 4364), We the People Act (H.R. 4379), and Safeguarding Our Religious Liberties Act (H.R. 4576).^[6]

Criticism and Controversy

Critics charge that using jurisdiction stripping to remove constitutional issues from the Supreme Court effectively gives Congress the power to nullify parts of the Constitution.

See also

• Separation of powers under the United States Constitution
• Privative clause

References