Testimony of Martin H. Redish

Louis and Harriet Ancel Professor of Law and Public Policy

Northwestern University School of Law

On the Subject of Congressional Power to Control Federal Court Jurisdiction

Before the Constitution Subcommittee of the Committee on the Judiciary, United States House of Representatives

June 24, 2004

INTRODUCTION

I have been asked to express my views concerning the scope of Congress’s constitutional power to limit federal court jurisdiction over particular classes of cases. While I have both taught and written about the subject on numerous occasions over the last thirty years, I must concede at the outset that it is virtually impossible to say definitively what the outer limits of this congressional power actually are. This confusion results from the relatively limited case law that exists on the subject. In a certain sense, of course, the lack of doctrinal development on this subject may well be a good thing, because the issue arises in the courts only when the judicial and legislative branches are involved in a tense political confrontation, a situation that has occurred only rarely in the nation’s history. Yet the fact remains that relatively few decisions have considered the issue, and what little doctrine does exist is occasionally vague or inconsistent. Adding to the confusing state of the law are the dramatically different views expressed by federal jurisdiction scholars over the years. Thus, the most I can do today is to provide my own theoretical take on the subject. While I believe that this approach flows inexorably from both the text and structure of the Constitution and is consistent with what little case law exists, for purposes of full disclosure I must concede that many respected scholars, both current and past, would disagree with all or part of the approach I suggest here.

In this testimony, I plan to describe my approach to the question and explain why I believe it derives from constitutional text and structure. I will then briefly describe alternative theoretical models, and explain why I consider them to be unacceptable.

CONCLUSIONS

I believe that, at least as a constitutional matter, the issue of congressional power to control federal jurisdiction is far simpler than many other scholars think. The text and internal logic of Article III of the Constitution make clear that congressional power to control the jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court is extremely broad. There is nothing in the provision’s text that in any way confines congressional authority in either area. It is highly likely, however, that the federal courts would construe congressionally imposed, substantively based restrictions on their jurisdiction in a highly grudging manner. Thus, if Congress wishes to exercise its vast authority, it would be advised to state its intent explicitly in the text of the relevant statutes.

To be sure, several other guarantees contained in the Constitution—due process, separation of powers, and equal protection—may well impose limitations on the scope of congressional power. The Due Process Clause of the Fifth Amendment requires that a neutral, independent and competent judicial forum remain available in cases in which the liberty or property interests of an individual or entity are at stake. But as long as the state courts remain available and adequate forums to adjudicate federal law and protect federal rights, it is difficult to see how the Due Process Clause would restrict congressional power to exclude federal judicial authority to adjudicate a category of cases, even one that is substantively based. Separation of powers, on the other hand, imposes more far reaching restrictions. That doctrine prevents Congress from (1) itself adjudicating individual litigations, (2) directing a federal court how to decide a particular case, (3) employing the federal courts for purposes of enforcement without simultaneously allowing them to interpret the law being enforced or consider its constitutionality, or (4) overturning individual decisions or classes of decisions already handed down by a federal court. However, it is difficult to see how any of those constitutional guarantees would restrict congressional authority completely to exclude substantively based categories of future or presently undecided cases from either the jurisdiction of the lower federal courts or the appellate jurisdiction of the Supreme Court. The constitutional directive of equal protection restricts congressional power to employ its power to restrict jurisdiction in an unconstitutionally discriminatory manner

It should be noted that the fact that Congress possesses such broad constitutional power in no way implies that it would be either wise or appropriate, as a matter of the American political process, for Congress to exercise its authority to remove specific categories of substantive cases from federal jurisdiction. Purely as a matter of policy, I believe that Congress should begin with a very strong presumption against seeking to manipulate judicial decisions indirectly by selectively restricting federal judicial authority. I also firmly believe that were Congress to take such action it would risk undermining public faith in both Congress and the federal courts. Due to their constitutionally granted independence and insulation from the majoritarian branches of the federal government, the judiciary possesses a unique ability to provide legitimacy to governmental action in the eyes of the populace. Congressional manipulation of federal judicial authority therefore threatens the legitimacy of federal political actions. Moreover, to exclude federal judicial power to interpret or enforce substantive federal law undermines the vitally important function performed by the federal judiciary in the American political system. The expertise and uniformity in interpretation of federal law that is provided by the federal judiciary should generally not be undermined.

CONGRESSIONAL POWER TO CONTROL THE JURISDICTION OF THE LOWER FEDERAL COURTS

Article III, section 1 of the Constitution provides 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.” On its face, this language vests in Congress complete discretion whether or not to create the lower federal courts, and the established historical understanding of the so-called “Madisonian Compromise” makes clear that this view is accurate. For an extended discussion of the Madisonian Compromise, see Martin H. Redish & Curtis Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. Pa. L. Rev. 45, 52-55 (1975). The framers’ assumption appears to have been that were Congress to have chosen not to create the lower federal courts, the state courts—who are explicitly bound to enforce federal law under the Constitution’s Supremacy Clause, Article VI, cl. 2—would be available to serve as the trial forums for the adjudication of claims arising under federal law. See generally Martin H. Redish, 15 Moore’s Federal Practice sec. 100.20 (3d ed. 1997). The Supreme Court has proceeded on the logical assumption that if Congress possessed discretion not to create lower federal courts in the first place, it also has the power to abolish the lower federal courts. See, e.g., Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Since it has been assumed that Congress possesses the authority to abolish the lower federal courts completely, the Court has assumed that it has the logically lesser power to “abolish” them as to only certain cases by limiting their jurisdiction.

Scholars have on occasion raised questions about the validity of the assumption that the power to create the lower courts logically dictates a corresponding power to abolish them. See, e.g., Ronald Rotunda, Congressional Power to Restrict the Jurisdiction of the Lower Federal Courts and the Problem of School Busing, 64 Geo. L.J. 839, 842-43 (1976). Nevertheless, since the constitutional text provides Congress with the power “from time to time” to ordain and establish the lower courts, I believe it is reasonable to infer from this language the power periodically to alter what Congress has already created. And if one accepts congressional power to abolish the lower courts, the power to leave them in existence but simultaneously restrict their jurisdiction seems to flow inexorably. If Congress possesses such authority, it is difficult to see how Article III itself implicitly imposes any restrictions on how that authority is to be employed. Thus, Article III would seem to provide no constitutional bar to the congressional exclusion of substantively based categories of cases from the jurisdiction of the lower federal courts.

Early in the nation’s history, Justice Joseph Story argued that the words, “shall be vested” in Article III dictate that the lower federal courts must exist to exercise judicial power in those cases constitutionally excluded from both the highly limited original jurisdiction of the Supreme Court and the jurisdiction of the state courts. Were the jurisdiction of the lower federal courts not to exist in such cases, the command of Article III that some federal court be available to adjudicate the case—either a lower court or the Supreme Court—would be violated. However, even if Story were correct in his assumption that the words, “shall be vested” are to be construed to be a command—by no means an obviously correct construction---he ignored the fact that, given the nature of the Madisonian Compromise that led to the drafting of Article III, there are absolutely no federal cases constitutionally excluded from state court jurisdictional authority. Thus, the entire logic of Story’s theory breaks down. It is therefore not surprising that, while the theory has acquired some modern scholarly support, it has been virtually ignored by the courts. See Linda Mullenix, Martin Redish & Georgene Vairo, Understanding Federal Courts and Jurisdiction 7-9 (Matthew Bender 1998).

CONGRESSIONAL POWER TO CONTROL THE APPELLATE JURISDICTION OF THE SUPREME COURT

Article III, section 2 of the Constitution extends extremely limited original jurisdiction to the United States Supreme Court. In all other cases to which the federal judicial power is extended, the Court is given appellate jurisdiction, “both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” On its face, this provision provides seemingly unrestrained congressional authority to exclude categories of cases from the Supreme Court’s appellate jurisdiction. In Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the post-Civil War Supreme Court appeared to recognize the unlimited authority explicitly authorized in the text. See Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 25-27 (2d ed. 1990). However, in a subsequent decision the same year, the Court construed McCardle narrowly, leaving open the possibility that the Exceptions Clause is not to be extended as far as its text suggests. Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868). See also Felker v. Turpin, 518 U.S. 651 (1996). Nevertheless, the Supreme Court has to this day not resolved the outer reaches of the Exceptions Clause, and I fail to comprehend how a textually unlimited power to make exceptions to the Supreme Court’s appellate jurisdiction can be construed to be limited in any way. While it is at least conceivable that other constitutional provisions might confine this congressional power, at least the text of the Exceptions Clause itself does not do so.

SUGGESTED SCHOLARLY LIMITATIONS ON CONGRESSIONAL POWER TO CONTROL FEDERAL JURISDICTION

As I have already indicated, I believe that the textual directives of Article III make clear, on their face, that Congress possesses broad constitutional authority to control the jurisdiction of both the lower federal courts and the United States Supreme Court. Nevertheless, several respected scholars have questioned the text’s seemingly clear directives. However, none of these scholarly theories can withstand careful critical analysis. Ultimately, all of them amount to what I have described as a form of “constitutional wishful thinking.” Redish, Tensions, supra at 28. My prior work has provided detailed critiques of each of these theories (see the previously cited sources). Here I will briefly describe those theories and the fundamental problems with each.

Henry Hart’s “Essential Functions” Thesis

Many years ago, Henry Hart cryptically suggested that the Exceptions Clause is somehow restrained by a textually nonexistent limitation that prevents Congress from interfering with the “essential functions” of the Supreme Court. Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953). Though Hart never explained either what those supposedly essential functions actually are or from where in the Constitution he derived them, it appears from subsequent work by his supporters that the concept is intended to include the unifying function of federal law interpretation and the policing of state court interpretations of federal law. See Leonard Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L. Rev. 157, 201-02 (1960). As I have previously argued, however, the historical evidence relied upon to support the “essential functions” thesis is “[a]t best…speculative and at worst…simply useless.” Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 Vill. L. Rev. 900, 908 (1982). In any event, as already noted, the text provides absolutely no suggestion of such a limitation, regardless of what the history demonstrates.

Akhil Amar’s Theory

Professor Akhil Amar has suggested an alternative theory that provides that for certain categories of cases to which the federal judicial power is extended in Article III, section 2, Congress may not revoke all federal judicial jurisdiction. Unlike Professor Hart (who confined his constitutional restriction on congressional power to the Supreme Court’s appellate jurisdiction), Professor Amar asserts that at least one level—the lower federal courts or the Supreme Court—(but not necessarily both) must remain open to adjudicate any category of cases delineated in Article III, section 2 preceded by the word, “all.” He reasons that the selective use of that word, combined with the mandatory “shall be vested” language at the start of section 1, provides a textual basis for his conclusion. See generally Akhil Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1569 (1990).

If Professor Amar’s theory were accepted (and I am unaware of any support for it in the modern case law), it would severely restrict congressional power to remove simultaneously from both the lower federal courts and the Supreme Court cases that arise under federal law, since that is one of the categories preceded by the “all” qualifier. However, it is difficult to imagine that the drafters of Article III would have attempted to reach the result Professor Amar advocates simply by the cryptic and selective use of the word, “all.” This is especially true, when at the very same time they explicitly provided Congress with unlimited discretion not to create the lower federal courts in the first place and to make exceptions to the Supreme Court’s appellate jurisdiction.

In any event, purely as a matter of textual construction, Amar’s theory makes no sense: If the words, “shall be vested” are, in fact, intended to be mandatory, all of the categories of cases enumerated in Article III, section 2, are modified by it. This is so, whether or not those categories are preceded by the word, “all.” Thus, if we are to take seriously Amar’s out-of-context focus on the words, “shall be vested,” his textual argument must logically lead to the conclusion that every category of cases enumerated in Article III, section 2 must be heard by some Article III court, regardless of whether or not it is preceded by the word, “all.” For my detailed critique of Professor Amar’s theory, see Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633 (1990). See also John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997) (criticizing Amar’s theory). For a defense of Amar’s theory, however, see Robert Pushaw, Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 B.Y.U. L. Rev. 847.

Professor Sager’s Theory

Professor Lawrence Sager has argued that Congress may not use its authority to revoke jurisdiction from both the Supreme Court and the lower federal courts in a substantively selective manner. Lawrence Sager, The Supreme Court 1980 Term, Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Lower Federal Courts, 95 Harv. L. Rev. 17 (1981). However, for the most part Professor Sager’s focus appears to be on jurisdictional exclusions for state behavior when constitutional rights are at stake. See id. at 69. Thus, were Congress to exclude the jurisdiction of all Article III federal courts in cases involving questions of purely sub-constitutional law not involving state action, Sager’s theory is at best of diluted force. In any event, I have argued that Sager’s theory ignores the clear textual directives of Article III. See Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev. 143 (1982). For further criticism of Sager’s theory, see Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 915 (1984).

RELEVANCE OF OTHER CONSTITUTIONAL PROTECTIONS

Due Process

While the outer reaches of the right remain somewhat unclear, it is established that the Due Process Clause requires adjudication by a neutral, independent forum before government may revoke protected liberty or property interests. See, e.g., Tumey v. Ohio, 273 U.S. 510 (1927). See generally Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L.J. 455 (1986). Thus, where constitutional rights are at stake, Congress may not revoke all forms of access to an independent judicial forum. Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987). But even the exclusion of both lower federal court and Supreme Court jurisdiction would not bring about such a result, as long as the state courts remain a viable alternative. I have long expressed concern about exactly how viable the state court remedy is (see Redish, 77 Nw. U. L. Rev. 143; Redish & Marshall, supra), but the case law is quite clear that the state courts are deemed to satisfy the due process requirement of a neutral judicial forum. Thus, as long as state courts remain open, congressional exclusion of federal jurisdiction raises no issue of due process.

Separation of Powers

The separation-of-powers limitations on congressional power to control federal jurisdiction are somewhat more complex than the due process limitation. Derived from both the text and structure of Article III, the separation-of-powers doctrine imposes significant restrictions on congressional authority. Before exploring those restrictions, however, it is important to note that as long as Congress completely excludes federal court jurisdiction over a particular category of cases, including the enforcement power, generally separation-of-powers problems are unlikely to arise. The only concern would be were Congress to exclude federal court jurisdiction and itself attempt to adjudicate individual cases, a clearly unconstitutional usurpation of the judicial power by the legislative branch.

Most of the difficulties occur, however, primarily when Congress vests jurisdiction in the federal courts (lower courts or Supreme Court) while simultaneously imposing restriction on federal judicial ability to interpret the law being enforced or to review its constitutionality. See generally United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). For a more detailed description of the case and its implications, See Redish, Tensions, supra at 48-49. This limitation flows from the theory of the “quid pro quo”: the notion that where Congress wishes to invoke the unique legitimacy that the independent federal judiciary possesses, it must allow the judiciary full authority to interpret and review the law that it is asked to enforce. In addition, the Supreme Court has made clear that while Congress may alter the general substantive sub-constitutional law to be applied by the federal courts, it may not reverse specific judgments already entered by the federal courts. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

Equal Protection

The equal protection directive, deemed to be implicit in the Due Process Clause of the Fifth Amendment, can conceivably also play a role in limiting congressional power to control federal jurisdiction. Despite its seemingly unlimited authority under Article III, Congress quite clearly may not revoke or confine federal jurisdiction in a discriminatory manner. For example, Congress could not successfully argue that its greater constitutional power to exclude federal judicial power completely logically subsumes the lesser power of excluding federal judicial power, for example, in cases brought by African Americans, Jews, or Women.

POLITICAL PROCESS CONSIDERATIONS

It is clear to me that Article III of the Constitution vests broad power in Congress to exclude the jurisdiction of both the Supreme Court and the lower federal courts. While externally derived constitutional doctrines impose distinct limits on that power, I can see absolutely no textual or structural basis for denying Congress power completely to exclude substantive categories of cases from the jurisdiction of the federal courts. This is true, even in cases in which constitutional rights are at stake, as long as an alternative adequate judicial forum has been made available.

It does not follow, however, that Congress should choose to exercise this power. To the contrary, I firmly believe that Congress should choose to exercise this power virtually never. There has long existed a delicate balance between the authority of the federal judiciary and Congress, and the exclusion of substantively selective authority from all federal courts seriously threatens that balance. I firmly believe, therefore, that whatever the scope of its constitutional power, Congress should be extremely reluctant to exercise that power.