//  2/6/18  //  In-Depth Analysis

Cross-posted from Dorf on Law

There has been much speculation lately about whether President Trump will attempt to fire FBI Director Wray, Attorney General Sessions, Deputy Attorney General Rosenstein, and/or Special Counsel Mueller. Taking any of these actions would flout the core principle that no one is above the law, but most such actions would be constitutionally permissible, because Wray, Sessions, Rosenstein, and Mueller are all employed within the executive branch. In my view, a well-designed government would not permit a high-ranking official to exploit his power over personnel to derail an investigation into his own alleged wrongdoing, but in this respect our government may not be well-designed. Or if it is, the problem may be that the only remedy is impeachment, which, for political reasons having nothing to do with the gravity of the wrong, is off the table.

But if the president has some power to root out resistance to his offenses within the executive branch, and if he encounters scant resistance, indeed support, from the legislative branch due to party loyalty and cowardice, surely there is one place in government where the president's power does not extend: the independent judiciary.

Maybe, maybe not. The president, acting alone, has no power to override the courts, but with the aid of a compliant Congress, he can do quite a bit. True, there are norms that stand in the way, like the norm against Court packing. But norms only hold until they don't, and if recent history is our guide, norms regarding the courts are up for grabs. If you don't believe me, ask Merrick Garland.

Accordingly, now may be a good time to turn to harder stuff than norms--by which I mean to turn to constitutional law--to find limits to the power of political actors to undercut judicial checks on their power. And it just so happens that I've written a new article on one aspect of that topic: The limits on the power of Congress to strip courts of jurisdiction.

Lest I be accused of false advertising, I want to acknowledge up front that the article is written as an evergreen rather than as an intervention specifically for the current moment. Moreover, it addresses an aspect of the problem that does not directly tie into the norms currently breaking down. I inquire into the limits on the power of Congress to strip state courts of their jurisdiction. Still, the article connects to broader themes that may implicate the questions du jour.

By way of introduction for readers who have never taken (or have forgotten some of what they learned in) a law school class in Federal Courts, there is a robust body of scholarship addressing the question of how much control Congress can exercise over the jurisdiction of the federal courts. There is relatively little relevant case law from the SCOTUS, however, because, while bills have frequently been introduced to curtail the power of the courts to address controversial subjects (e.g., desegregation, school prayer, Pledge of Allegiance, same-sex marriage, etc), such bills have rarely passed.

But the failure of the bills to have passed in prior periods may reflect norms that are in the process of breaking down. Accordingly, the topic of jurisdiction stripping could become more important as a practical matter.

The jurisdiction stripping literature addresses three main topics: (1) What power does Congress have to strip jurisdiction from the lower federal courts? (2) What power does Congress have to strip jurisdiction from the SCOTUS; and (3) What power does Congress have to strip jurisdiction from all courts, including state courts.

The literature is, as I said, robust. Indeed, already 35 years ago, one scholar I quote in the article characterized it as "choking on redundancy." Accordingly, my article does not simply offer yet another variant on the existing menu of approaches. Instead, I address a question that has received, so far as I have been able to ascertain, no attention at all: What affirmative power does Congress exercise when it strips state courts of jurisdiction when it also closes federal courts?

By affirmative power I mean the source of power. When Congress acts, it must have affirmative power--such as the power to regulate interstate commerce or the power to spend money--derived from some grant in the Constitution and it may not violate any prohibitory language--such as the protection for free speech or the right to habeas corpus.

The literature on jurisdiction stripping with respect to questions (1) and (2) described two paragraphs up addresses affirmative power. Congress has the affirmative power to limit the jurisdiction of the lower federal courts because Article III gives Congress the power to "ordain and establish" lower federal courts in the first place, and the greater power not to create the lower federal courts includes the lesser power to create them but vest in them less than all of the jurisdiction allowed by Article III. Meanwhile, Congress has the affirmative power to limit the appellate jurisdiction of the SCOTUS because Article III entitles it to make "exceptions" to and "regulations" of that jurisdiction.

But oddly, the literature on jurisdiction stripping does not consider where Congress might derive the affirmative power to strip state courts of jurisdiction. Rather, it skips over that question to address whether there is a constitutional right to some judicial forum for certain sorts of claims and defenses such that stripping all courts of jurisdiction violates that right. That's an important question, to be sure, but the question of substantive power is antecedent to it.

So where does Congress get the power to strip state courts of their jurisdiction? My detailed answer is  in the article. Here I'll just quote the abstract:

The answer depends on the nature of the case. In stripping all courts of the power to hear federal statutory claims and challenges to federal statutes, Congress exercises whatever affirmative power authorizes the substantive statute. However, Congress lacks affirmative power to strip all courts of the power to hear constitutional challenges to state laws. That conclusion is important in its own right but also complements views—such as Henry Hart’s contention that the Supreme Court must have such jurisdiction as necessary to play its “essential role” in our constitutional system—about the scope and limits of congressional power under the Exceptions Clause of Article III. The limit on affirmative congressional power to strip state courts of jurisdiction to hear constitutional challenges to state laws ensures that there will be cases over which the Supreme Court can exercise its appellate jurisdiction in order to play its essential role.

I realize that the foregoing will be mysterious to the uninitiated. I wrote the article in a way that, I hope, will be accessible to people who are not deeply familiar with the extant jurisdiction-stripping literature. I also wrote it in a way that, I hope, will be of use to people who do know the relevant literature.


A Tainting of Judicial Independence

10/8/18  //  In-Depth Analysis

Kavanaugh's potential perjury means that his seat on the Court may depend on continuing Republican control in Congress. This is plainly inconsistent with any account of judicial independence.

Tom Ginsburg

University of Chicago Law School

Aziz Huq

University of Chicago Law School

The 'All of the Above' Approach to Justice Kavanaugh

10/7/18  //  In-Depth Analysis

Do progressives give up on the Court? Declare war on it? Pretend nothing has changed? Each of us will have to decide for ourselves. There is no 'right way' to respond to our new reality.

Michael C. Dorf

Cornell Law School

The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court

10/7/18  //  In-Depth Analysis

By the time the Supreme Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control, even though Democrats have won a majority or plurality of the popular vote in seven of the twelve elections in that period.

Marty Lederman

Georgetown Law