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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 desired by manipulation of jurisdiction and indeed the cases reflect certain limitations. Setting to one side various formulations, such as mandatory vesting of jurisdiction,1098 inherent judicial power,1099 and[p.787]a theory, variously expressed, that the Supreme Court has “essential constitutional functions” of judicial review that Congress may not impair through jurisdictional limitations,1100 which lack textual and subsequent judicial support, one can see nonetheless 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.1101 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.1102

Ex parte McCardle1103 marks the furtherest 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.1104

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 de[p.788]nied. 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.”1105 A year later, in Ex parte Yerger,1106 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.1107

Another Reconstruction Congress attempt to curb the judiciary failed in United States v. Klein,1108 in which 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 was voided.1109 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[p.789]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.”1110 The statute was void for two reasons; it “infring[ed] the constitutional power of the Executive,”1111 and it “prescrib[ed] a rule for the decision of a cause in a particular way.”1112 Klein thus stands for the proposition that Congress may not violate the principle of separation of powers1113 and that it may not accomplish certain forbidden substantive acts by casting them in jurisdictional terms.1114

Other restraints on congressional power over the federal courts may be gleaned from the opinion in the much–disputed Crowell v.[p.790]Benson.1115 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.1116 What this might mean was elaborated in Crowell v. Benson,1117 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 law and fact, 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.”1118

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[p.791]by several Justices approvingly,1119 but the Court has never applied the principle to control another case.1120


Footnotes

1098 This was Justice Story’s theory propounded in Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 329–336 (1816). Nevertheless, Story apparently did not believe that the constitutional bestowal of jurisdiction was self–executing and accepted the necessity of statutory conferral. White v. Fenner, 29 Fed. Cas. 1015 (No. 17,547) (C.C.D.R.I. 1818) (Justice Story). In the present day, it has been argued that the presence in the jurisdictional–grant provisions of Article III of the word “all” before the subject–matter grants – federal question, admiralty. public ambassadors – mandates federal court review at some level of these cases, whereas congressional discretion exists with respect to party–defined jurisdiction – such as diversity. Amar, A Neo– Federalist View of Article III: Separating the Two–Tiers of Federal Jurisdiction, 65 U. L. Rev.205 (1985); Amar, The Two–Tiered Structure of the Judiciary Act of 1789, 138 Pa. L. Rev.1499 (1990). Rebuttal articles include Meltzer, The History and Structure of Article III, id., 1569; Redish, Text, Structure, and Common Sense in the Interpretation of Article III, id., 1633; and a response by Amar, id., 1651. An approach similar to Professor Amar’s is Clinton, A Mandatory View of Federal Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 Pa. L. Rev.741 (1984); Clinton, Early Implementation and Departures from the Constitutional Plan, 86 Colum. L. Rev. 1515 (1986). Though perhaps persuasive as an original interpretation, both theories confront a large number of holdings and dicta as well as the understandings of the early Congresses revealed in their actions. See Casto, supra, n.1074.
1099 Justice Brewer in his opinion for the Court in United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), came close to asserting an independent, inherent power of the federal courts, at least in equity. See also Paine Lumber Co. v. Neal, 244 U.S. 459, 473, 475–476 (1917) (Justice Pitney dissenting). The acceptance by the Court of the limitations of the Norris–LaGuardia Act, among other decisions, contradicts these assertions.
1100 The theory was apparently first developed in Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L. rev. 157 (1960). See also Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 Vill. L. Rev. 929 (1981–82). The theory was endorsed by Attorney General William French Smith as the view of the Department of Justice. 128 Cong. Rec. 9093–9097 (1982) (Letter to Hon. Strom Thurmond).
1101 An extraordinary amount of writing has been addressed to the issue, only a fraction of which is touched on here. See Hart & Wechsler, op. cit., n.250, 362–424.
1102 Johnson v. Robison, 415 U.S. 361, 366–367 (1974); Weinberger v. Salfi, 422 U.S. 749, 762 (1975); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 n. 12 (1986); Webster v. Doe, 486 U.S. 592, 603 (1988). In the last cited case, Justice Scalia attacked the reservation and argued for nearly complete congressional discretion. Id., 611–615 (concurring).
1103 7 Wall (74 U.S.) 506 (1869). For the definitive analysis of the case, see Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 L. Rev.229 (1973).
1104 Article I, Sec. 9, cl. 2.
1105 Ex parte McCardle, 7 Wall, (74 U.S.) 506, 515 (1869).

Supplement: [P. 788, add to n.1105:]

A restrained reading of McCardle is strongly suggested by Felker v. Turpin, 518 U.S. 651 (1996) . A 1996 congressional statute giving to federal courts of appeal a “gate–keeping” function over the filing of second or successive habeas petitions limited further review, including denying the Supreme Court appellate review of circuit court denials of motions to file second or successive habeas petitions. Pub. L. No. 104–132, Sec. 106, 110 Stat. 1214, 1220, amending 28 U.S.C. Sec. 2244(b). Upholding the limitation, which was nearly identical to the congressional action at issue in McCardle and Yerger, the Court held that its jurisdiction to hear appellate cases had been denied, but just as in Yerger the statute did not annul the Court’s jurisdiction to hear habeas petitions filed as original matters in the Supreme Court. No constitutional issue was thus presented.

1106 8 Wall. (75 U.S.) 85 (1869). Yerger is fully reviewed in C. Fairman, History of the Supreme Court of the United States: Vol. VI, Pt. I—Reconstruction and Reunion, 1864–88 (New York: 1971), 558–618.
1107 Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 966 (D.C.Cir. 1949), revd. on other grounds sub nom. Johnson v. Eisentrager, 339 U.S. 763 (1950). Justice Douglas, with whom Justice Black joined, said in Glidden Co. v. Zdanok, 370 U.S. 530, 605 n. 11 (1962) (dissenting opinion): “There is a serious question whether the McCardle case could command a majority view today.” Justice Harlan, however, cited McCardle with apparent approval of its holding, id., 567–568, while noting that Congress’ “authority is not, of course, unlimited.” Id., 568. McCardle was cited approvingly in Bruner v. United States, 343 U.S. 112, 117 n. 8 (1952), as illustrating the rule “that when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law. . . .”
1108 13 Wall. (80 U.S.) 128 (1872). See C. Fairman, History of the Supreme Court of the United States: Vol. VI, Pt. I—Reconstruction and Reunion 1864–88 (New York: 1971), 558–618. The seminal discussion of Klein may be found in Young, Congressional Regulation of Federal Courts’ Jurisdiction and Processes: United States v. Klein Revisited, 1981 Wisc. L. Rev. 1189. While he granted that Klein is limited insofar as its bearing on jurisdictional limitation per se is concerned, he cited an ambiguous holding in Armstron v. United States, 13 Wall. (80 U.S.) 154 (1872), as in fact a judicial invalidation of a jurisdictional limitation. Young, id., 1222–1223 n. 179.
1109 Congress by the Act of July 17, 1862, §§ 5, 13, authorized the confiscation of property of those persons in rebellion and authorized the President to issue pardons on such conditions as he deemed expedient, the latter provision being unnecessary in light of Article II, Sec. 2, cl. 1. The President’s pardons all provided for restoration of property, except slaves, and in United States v. Padelford, 9 Wall, (76 U.S.) 531 (1870), the Court held the claimant entitled to the return of his property on the basis of his pardon. Congress thereupon enacted the legislation in question. 16 Stat. 235 (1870).
1110 United States v. Klein, 13 Wall. (80 U.S.) 128, 145–146 (1872).
1111 Id., 147.
1112 Id., 146.
1113 Id., 147. For an extensive discussion of Klein, see United States v. Sioux Nation, 448 U.S. 371, 391–405 (1980), and id., 424, 427– 434 (Justice Rehnquist dissenting). See also Pope v. United States, 323 U.S. 1, 8–9 (1944); Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962) (Justice Harlan). In Robertson v. Seattle Audubon Society, 112Ct.1407 (1992), the 9th Circuit had held unconstitutional under Klein a statute that it construed to deny the federal courts power to construe the law, but the Supreme Court held that Congress had changed the law that the courts were to apply. The Court declined to consider whether Klein was properly to be read as voiding a law “because it directed decisions in pending cases without amending any law.” Id., 1414.
1114 United States v. Klein, 13 Wall. (80 U.S.) 128, 147 (1872).
1115 285 U.S. 22 (1932). See also Ng Fung Ho v. White, 259 U.S. 276 (1922); Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920); St. Joseph Stock Yard Co. v. United States, 298 U.S. 38 (1936).
1116 Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.) 272 (1856).
1117 285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented.
1118 Id., 56, 60, 64.
1119 See Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76–87 (1982) (plurality opinion), and id., 100–103, 109–111 (Justice White dissenting) (discussing the due process/Article III basis of Crowell). Both the plurality and the dissent agreed that later cases had “undermined” the constitutional/jurisdictional fact analysis. Id., 82, n. 34; 110 n. 12. For other discussions, see Jacobellis v. Ohio, 378 U.S. 184, 190 (1964) (Justice Brennan announcing judgment of the Court, joined by Justice Goldberg); Pickering v. Board of Education, 391 U.S. 563, 578–579 (1968); Agosto v. INS, 436 U.S. 748, 753 (1978); United States v. Raddatz, 447 U.S. 667, 682–684 (1980), and id., 707–712 (Justice Marshall dissenting).
1120 Compare Permian Basin Area Rate Cases, 390 U.S. 747, 767, 792 (1968); Cordillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947); South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940). Justice Frankfurter was extremely critical of Crowell. Estep v. United States, 327 U.S. 114, 142 (1946); City of Yonkers v. United States, 320 U.S. 685 (1944).
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