CRS Annotated Constitution
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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
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.
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