Jurisdiction stripping
From Wikipedia, the free encyclopedia
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.
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[edit] 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 execptions 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.
[edit] 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 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 Congess may strip the power of the federal judiciary to hear certain classes of cases.[1]
[edit] Examples
Several 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).[2] 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).[3]
[edit] Criticism and Controversy
[edit] See also
[edit] References
- ^ Brest, Paul, Sanford Levinson, Jack M. Balkin, Akhil Reed Amar, and Reva B. Seigel (2006). Processes of Constitutional Decisionmaking: Cases and Materials, 6th Edition, Aspen, 887–889.
- ^ Curtailment of Jurisdiction. American Judicature Society. Retrieved on 2006-11-12.
- ^ Choate, Alan. "Cannon tries to ban federal courts from hearing state porn cases", The Daily Herald, 2006-06-06, p. A1. Retrieved on 2006-11-12.
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