quasi in rem

Saturday, February 21, 2004

Notes on Congressional Attempts to Limit Federal Court Jurisdiction

I did not get a chance to mention this last week but HR 3799 which would cut off federal jurisdiction of cases like Mr. Newdow's
was introduced on February 11.

This is not the first time this tactic has been used and it will not be the last. (By the way it would have no impact on Newdow's case even if passed today.) This is an oft used tactic in Congress, by both parties, which does not make it efficaceous, but more on that later.

This type of legislation has not recently been successful in controversial issues, mostly, I would guess, because members of both parties recognize that Federal courts are a good thing most of the time and that Congress, despite group think, often writes unconstitutional laws.

However on less controversial topics, this type of legislation has passed. For example, in order to clean up the backlog of the millions of immigration cases currently pending in the Department of Homeland Security, Congress has barred judicial review of the Attorney General's decisions (1) to commence immigration proceedings, (2) to adjudicate immigration cases, or (3) to "execute removal orders.

Two recent examples of failed efforts include the Defense of Marriage Act and Partial Birth Abortion

This is a perfectly constitutional power, since under Article II if they wanted to, the Congress could just get rid of all the lower federal courts.

This power is not thought to be unlimited, i.e. there is an "essential functions" limitation on the Exceptions Clause, although the outer edges of the limitation are fuzzy.(what does footnote four on Carolene really mean anyway)

(What congress should do is prevent jurisdiction in federal courts of any cause of action that derives from a right found in a footnote of a Supreme Court opinion.)

But the fact that this bill was reintroduced means that the fear of liberal judges and the Supreme Court is alive and well.

Second, this act really does promote federalism. If there is no appellate jurisdiction to the Supreme Court then if a state were to hold that the law violated either the state of Federal constitution, that would be it for that state! Granted those acts would have no impact on Federal government, but consider this scenario:

Let's say the Newdow case had been brought under this regime in a California State Court. The California Supreme Court agrees with Newdow and that's it. No more pledge of allegiance in California schools ever again!

More on this later. Promse.

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