Constitutional Law: Jurisdiction Stripping
Jurisdiction stripping is the ability for Congress to remove certain cases and subject matters from the ability of courts to review. This power is derived from Article III Section I of the Consitution, which states “The 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.”
The above text has been interpreted to mean that Congress has the authority to decide what kinds of cases can be heard in a federal court. This makes sense as far as Federal Jurisdiction is concerned (§1331, §1332, etc..), so that court resources are preserved and only heavier weighted cases are heard before a federal judge. However, Congress has used this power to strip the court’s jurisdiction in specific cases and controversies that it wishes to put beyond review. As such, we have two schools of thought surrounding jurisdiction stripping – the haves and the have-nots.
The Haves believe we should allow jurisdiction stripping, that is is a power decreed to Congress in Article II of the US Constitution. Many who are in favor of jurisdiction stripping will rest their argument on the countermajoritarian difficulty theory.
The countermajoritarian difficulty is a theory first coined by, Alexander Bickel in 1961 in his book The Least Dangerous Branch. The countermajoritiarian difficulty is premised on the belief that the judicial branch is the least democratic branch of government, since federal judges are unelected and serve “during good behavior” (for life). Judicial appointment, for life terms, leave judges less obligated to uphold the interests of the majority, who elected officials have to answer to. Countermajoritarians fear the judicial branch could overrule legislation with complete disregard to the majority, since their power goes relatively unchecked. For these reasons, countermajoritiarians often argue in favor of jurisdiction stripping, the ability for Congress to remove jurisdiction of the courts, because it is believed that this can better protect the interests of the majority. The beliefs of countermajoritirians are contrasted to those who subscribe to the belief in the separation of powers and often argue against jurisdiction stripping.
The Have-Nots believe that each branch of government has limited power that can be checked by a coordinate branch. So that Congress writes statutes, that are either affirmed or vetoed by the President, and are then reviewed by the judicial branch as situations arise in live controversy. The separation of powers believers assert that we should not allow jurisdiction stripping because Congress could pass unconstitutional laws beyond the power of review. Further, if Congress is allowed to strip the jurisdiction of the courts, the courts could be removed the constitutional process all together.
Related posts:
- Subject Matter Jurisdiction: §1331 – Federal Question In order to get into Federal Court under §1331, a...
- Civil Procedure: Subject Matter Jurisdiction Outline Analyzing Cases Dealing With Federal Jurisdiction How are the parties...
- Civil Procedure: Grable Substantial Federal Issue Test The Grable Test carves out a "special and small category"...
- Civil Procedure: Personal Jurisdiction Personal Jurisdiction refers to the courts power to enter judgement...
- Federal Preemption Generally speaking, when there is a conflict between state and...