Article III, Section 2, Clause 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Theory of Plenary Congressional Control
Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to
exceptions and regulations prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to
curb the courts and more frequently to proposed but unsuccessful curbs.1 Supreme Court holdings establish clearly the breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.
In Wiscart v. D'Auchy,2 the issue was whether the statutory authorization for the Supreme Court to review on writ of error circuit court decisions in
civil actions gave it power to review admiralty cases.3 A majority of the Court decided that admiralty cases were
civil actions and thus reviewable; in the course of decision, it was said that
[i]f Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.4 Much the same thought was soon to be expressed by Chief Justice Marshall, although he seems to have felt that in the absence of congressional authorization, the Court's appellate jurisdiction would have been measured by the constitutional grant.
Had the judicial act created the supreme court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. The legislature would have exercised the power it possessed of creating a supreme court, as ordained by the constitution; and in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those powers undiminished.
The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject.5 Later Justices viewed the matter differently from Marshall.
By the constitution of the United States, it was said in one opinion,
the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.6 In order for a case to come within its appellate jurisdiction, the Court has said,
two things must concur: the Constitution must give the capacity to take it, and an act of Congress must supply the requisite authority. Moreover,
it is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.7
This congressional power, conferred by the language of Article III, § 2, cl. 2, which provides that all jurisdiction not original is to be appellate,
with such Exceptions, and under such Regulations as the Congress shall make, has been utilized to forestall a decision which the congressional majority assumed would be adverse to its course of action. In Ex parte McCardle,8 the Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court; the petition was by a civilian convicted by a military commission of acts obstructing Reconstruction. Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress enacted over the President's veto a provision repealing the act which authorized the appeal McCardle had taken.9 Although the Court had already heard argument on the merits, it then dismissed for want of jurisdiction.10
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.
What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.11 Although McCardle grew out of the stresses of Reconstruction, the principle it applied has been applied in later cases,12including recently in Patchak v. Zinke.13
Jurisdiction of the Inferior Federal Courts
The Framers, as we have seen,14 divided with regard to the necessity of courts inferior to the Supreme Court, simply authorized Congress to create such courts, in which, then, judicial power
shall be vested and to which nine classes of cases and controversies
shall extend.15 While Justice Story deemed it imperative of Congress to create inferior federal courts and, when they had been created, to vest them with all the jurisdiction they were capable of receiving,16 the First Congress acted upon a wholly different theory. Inferior courts were created, but jurisdiction generally over cases involving the Constitution, laws, and treaties of the United States was not given them, diversity jurisdiction was limited by a minimal jurisdictional amount requirement and by a prohibition on creation of diversity through assignments, equity jurisdiction was limited to those cases where a
plain, adequate, and complete remedy could not be had at law.17 This care for detail in conferring jurisdiction upon the inferior federal courts bespoke a conviction by Members of Congress that it was within their power to confer or to withhold jurisdiction at their discretion. The cases have generally sustained this view.
Thus, in Turner v. Bank of North America,18 the issue was the jurisdiction of the federal courts in a suit to recover on a promissory note between two citizens of the same state but in which the note had been assigned to a citizen of a second state so that suit could be brought in federal court under its diversity jurisdiction, a course of action prohibited by § 11 of the Judiciary Act of 1789.19 Counsel for the bank argued that the grant of judicial power by the Constitution was a direct grant of jurisdiction, provoking from Chief Justice Ellsworth a considered doubt20 and from Justice Chase a firm rejection.
The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the constitution: but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the constitution might warrant.21 Applying § 11, the Court held that the circuit court had lacked jurisdiction.
Chief Justice Marshall himself soon made similar assertions,22 and the early decisions of the Court continued to be sprinkled with assumptions that the power of Congress to create inferior federal courts necessarily implied
the power to limit jurisdiction of those Courts to particular objects.23 In Cary v. Curtis,24 a statute making final the decision of the Secretary of the Treasury in certain tax disputes was challenged as an unconstitutional deprivation of the judicial power of the courts. The Court decided otherwise.
[T]he judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court), dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.25
Five years later, the validity of the assignee clause of the Judiciary Act of 178926 was placed in issue in Sheldon v. Sill,27 in which diversity of citizenship had been created by assignment of a negotiable instrument. It was argued that, because the right of a citizen of any state to sue citizens of another flowed directly from Article III, Congress could not restrict that right. Unanimously, the Court rejected this contention and held that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies in Article III. The case and the principle have been cited and reaffirmed numerous times,28 including in a case under the Voting Rights Act of 1965.29 More recently, in Patchak v. Zinke, the Court confirmed that
Congress’ greater power to create lower federal courts includes its lesser power to ‘limit the jurisdiction of those Courts.’ So long as Congress does not violate other constitutional provisions, its ‘control over the jurisdiction of the federal courts’ is ‘plenary.’30 In Patchak, a neighboring landowner challenged the authority of the Secretary of the Interior to invoke the Indian Reorganization Act31 and take into trust a property on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, which planned to build a casino on the property.32 While the suit was on remand in a district court, Congress enacted the Gun Lake Trust Land Reaffirmation Act, which
reaffirmed as trust land the Tribe’s Property and provided that
an action . . . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed.33 In response, the district court dismissed the suit, and the U.S. Court of Appeals for the D.C. Circuit affirmed.34 On appeal, the Supreme Court affirmed the dismissal, holding that the Gun Lake Act did not violate Article III.35 In so holding, the Court clarified that
Congress generally does not infringe the judicial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.36 Furthermore, the Court stated,
when Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.37
Congressional Control Over Writs and Processes
The Judiciary Act of 1789 contained numerous provisions relating to the times and places for holding court, even of the Supreme Court, to times of adjournment, appointment of officers, issuance of writs, citations for contempt, and many other matters which it might be supposed courts had some authority of their own to regulate.38 The power to enjoin governmental and private action has frequently been curbed by Congress, especially as the action has involved the power of taxation at either the federal or state level.39 Though the courts have variously interpreted these restrictions,40 they have not denied the power to impose them.
Reacting to judicial abuse of injunctions in labor disputes,41 Congress in 1932 enacted the Norris-La Guardia Act which forbade the issuance of injunctions in labor disputes except through compliance with a lengthy hearing and fact-finding process which required the district judge to determine that only through the injunctive process could irremediable harm through illegal conduct be prevented.42 The Court seemed to experience no difficulty in upholding the Act,43 and it has liberally applied it through the years.44
Congress’s power to confer, withhold, and restrict jurisdiction is clearly revealed in the Emergency Price Control Act of 194245 and in the cases arising from it. Fearful that the price control program might be nullified by injunctions, Congress provided for a special court in which persons could challenge the validity of price regulations issued by the government with appeal from the Emergency Court of Appeals to the Supreme Court. The basic constitutionality of the Act was sustained in Lockerty v. Phillips.46 In Yakus v. United States,47 the Court upheld the provision of the Act which conferred exclusive jurisdiction on the special court to hear challenges to any order or regulation and foreclosed a plea of invalidity of any such regulation or order as a defense to a criminal proceeding under the Act in the regular district courts. Although Justice Rutledge protested in dissent that this provision conferred jurisdiction on district courts from which essential elements of the judicial power had been abstracted,48 Chief Justice Stone for the Court declared that the provision presented no novel constitutional issue.
The Theory Reconsidered
Despite the breadth of the language of many of the previously cited cases, the actual holdings constitute something less than an affirmance of plenary congressional power to do anything it desires by manipulation of jurisdiction, and, indeed, the cases reflect certain limitations. Setting to one side various formulations that lack textual and subsequent judicial support, such as mandatory vesting of jurisdiction,49 inherent judicial power,50 and a theory, variously expressed, that the Supreme Court has
essential constitutional functions of judicial review that Congress may not impair through jurisdictional limitations,51 one can nonetheless see the possibilities of restrictions on congressional power flowing from such basic constitutional underpinnings as express prohibitions, separation of powers, and the nature of the judicial function.52 Whether because of the plethora of scholarly writing contesting the existence of unlimited congressional power or because of another reason, the Court of late has taken to noting constitutional reservations about legislative denials of jurisdiction for judicial review of constitutional issues and construing statutes so as not to deny jurisdiction.53
Ex parte McCardle54 marks the farthest advance of congressional imposition of its will on the federal courts, and it is significant because the curb related to the availability of the writ of habeas corpus, which is marked out with special recognition by the Constitution.55
But how far did McCardle actually reach? In concluding its opinion, the Court carefully observed:
Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not exempt from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised.56 A year later, in Ex parte Yerger,57 the Court held that it did have authority under the Judiciary Act of 1789 to review on certiorari a denial by a circuit court of a petition for writ of habeas corpus on behalf of one held by the military in the South. It thus remains unclear whether the Court would have followed its language suggesting plenary congressional control if the effect had been to deny absolutely an appeal from a denial of a writ of habeas corpus.58
Another Reconstruction Congress attempt to curb the judiciary failed in United States v. Klein,59 in which the Court voided a statute, couched in jurisdictional terms, which attempted to set aside both the effect of a presidential pardon and the judicial effectuation of such a pardon.60 The statute declared that no pardon was to be admissible in evidence in support of any claim against the United States in the Court of Claims for the return of confiscated property of Confederates nor, if already put in evidence in a pending case, should it be considered on behalf of the claimant by the Court of Claims or by the Supreme Court on appeal. Proof of loyalty was required to be made according to provisions of certain congressional enactments, and when judgment had already been rendered on other proof of loyalty the Supreme Court on appeal should have no further jurisdiction and should dismiss for want of jurisdiction. Moreover, it was provided that the recitation in any pardon which had been received that the claimant had taken part in the rebellion was to be taken as conclusive evidence that the claimant had been disloyal and was not entitled to regain his property.
The Court began by reaffirming that Congress controlled the existence of the inferior federal courts and the jurisdiction vested in them and the appellate jurisdiction of the Supreme Court.
But the language of this provision shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. . . . It is evident . . . that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The Court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction.
It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.61 The statute was void for two reasons; it
infring[ed] the constitutional power of the Executive,62 and it
prescrib[ed] a rule for the decision of a cause in a particular way.63 While the precise import of Klein—with its broad language prohibiting Congress prescribing a
rule of decision that unduly invades core judicial functions—has puzzled legal scholars,64 it appears that Klein broadly stands for the proposition that Congress may not usurp the judiciary’s power to interpret and apply the law by directing a court
how pre-existing law applies to particular circumstances before it.65 Few laws, however, have been struck down for improperly prescribing a
rule of decision that a court must follow, and the Court has, in more recent years, declined to interpret Klein as inhibiting Congress from
amend[ing] applicable law.66
Instead, the Court has recognized that Congress may, without running afoul of Klein, direct courts to apply newly enacted legislation to pending civil cases, even when such an application would alter the outcome in the case.67 Moreover, the general permissibility under Article III of legislation affecting pending litigation extends to statutes that direct courts to apply a new legal standard even when the underlying facts of a case are undisputed, functionally leaving the court with nothing to decide. For example, in Bank Markazi v. Peterson, the Court upheld a provision of the Iran Threat Reduction and Syria Human Rights Act of 2012 that made a designated set of assets available for recovery to satisfy a discrete and finite set of default judgments, notwithstanding the fact that the change in the underlying law made the result of the pending case all but a
forgone conclusion.68In addition, the Bank Markazi Court, recognizing Congress’s authority to legislate on
one or a very small number of specific subjects, rejected the argument that particularized congressional legislation that alters the substantive law governing a specific case—standing alone—impinges on the judicial power in violation of Article III.69The Court held as such, even though the legislation in question identified a case by caption and docket number and did not apply to similar enforcement actions involving any other assets.70Accordingly, Klein’s prohibition on congressionally prescribed
rule[s] of decision appears to be limited to instances where Congress
fails to supply any new legal standard effectuating the lawmakers’ reasonable policy judgment and instead merely compels a court to make particular findings or results under the old law.71
In Patchak v. Zinke, the Court reiterated the distinction
between permissible exercises of the legislative power and impermissible infringements of the judicial power.72 In Patchak, a neighboring landowner challenged the authority of the Secretary of the Interior to invoke the Indian Reorganization Act73 and take into trust a property on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, which planned to build a casino on the property.74 While the suit was on remand in a district court, Congress enacted the Gun Lake Trust Land Reaffirmation Act, which
reaffirmed as trust land the Tribe’s Property and provided that
an action . . . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed.75 In response, the district court dismissed the suit, and the U.S. Court of Appeals for the D.C. Circuit affirmed.76 On appeal, the Supreme Court affirmed the dismissal, holding that the Gun Lake Act did not violate Article III.77
Citing Plaut v. Spendthrift Farm, Inc., a plurality of the Court restated that Congress may not exercise the judicial power, but its legislative power permits Congress to make laws that apply retroactively to pending lawsuits, even when the law effectively ensures that one side will win.78 The plurality opinion stated that
[t]o distinguish between permissible exercises of the legislative power and impermissible infringements of the judicial power, this Court’s precedents establish the following rule: Congress violates Article III when it ‘compel[s] . . . findings or results under old law.’ But Congress does not violate Article III when it ‘changes the law.’79 In sum, when congressional action compels an Article III court to make certain findings under old law, the plurality agreed with the dissenters that Congress cannot usurp the judiciary’s power by saying, for example,
‘[i]n Smith v. Jones, Smith wins.’80 Furthermore, while the Court could not agree on a broader principle of when a facially neutral law is permissible, four Justices concluded that a facially neutral law that strips the courts of jurisdiction did not raise an Article III concern, even when the natural result of the law ensured that the government would win the only pending case the law would implicate. Under these principles, the Court concluded that in the Gun Lake Act Congress changed the law, which was
well within Congress’ authority and d[id] not violate Article III.81
Other restraints on congressional power over the federal courts may be gleaned from the opinion in the much-disputed Crowell v. Benson.82 In an 1856 case, the Court distinguished between matters of private right which from their nature were the subject of a suit at the common law, equity, or admiralty and which cannot be withdrawn from judicial cognizance, and those matters of public right which, though susceptible of judicial determination, did not require it and which might or might not be brought within judicial cognizance.83 What this might mean was elaborated in Crowell v. Benson,84 involving the finality to be accorded administrative findings of jurisdictional facts in compensation cases. In holding that an employer was entitled to a trial de novo of the constitutional jurisdictional facts of the matter of the employer-employee relationship and of the occurrence of the injury in interstate commerce, Chief Justice Hughes fused the Due Process Clause of the Fifth Amendment and Article III but emphasized that the issue ultimately was
rather a question of the appropriate maintenance of the Federal judicial power and
whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency . . . for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend. The answer was stated broadly.
In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function. . . . We think that the essential independence of the exercise of the judicial power of the United States in the enforcement of constitutional rights requires that the Federal court should determine such an issue upon its own record and the facts elicited before it.85
It is not at all clear that, in this respect, Crowell v. Benson remains good law. It has never been overruled, and it has been cited by several Justices approvingly,86 but the Court has never applied the principle to control another case.87
Express Constitutional Restrictions on Congress
[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitations that they may not be exercised in a way that violates other specific provisions of the Constitution.88 The Supreme Court has had no occasion to deal with this principle in the context of Congress’s power over its jurisdiction and the jurisdiction of the inferior federal courts, but the passage of the Portal-to-Portal Act89 presented the lower courts such an opportunity. The Act extinguished back-pay claims growing out of several Supreme Court interpretations of the Fair Labor Standards Act; it also provided that no court should have jurisdiction to enforce any claim arising from these decisions. The United States Court of Appeals for the Second Circuit sustained the Act.90 The court noted that the withdrawal of jurisdiction would be ineffective if the extinguishment of the claims as a substantive matter were invalid.
We think . . . that the exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of the courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation.91 The Court, however, found that the Portal-to-Portal Act
did not violate the Fifth Amendment in so far as it may have withdrawn from private individuals . . . any rights . . . which rested upon private contracts they had made. Nor is the Portal-to-Portal Act a violation of Article III of the Constitution or an encroachment upon the separate power of the judiciary.92
There thus remains a measure of doubt that Congress’s power over the federal courts is as plenary as some of the Court's language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the practice since 1789 and the holdings of many Court decisions. That its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution or from the cases.