CRS Annotated Constitution

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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;” Justice Black said in a different context, “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.”1121 The Supreme Court has had no occasion to deal with this principle in the context of Congress’ power over its jurisdiction and the jurisdiction of the inferior federal courts, but the passage of the Portal–to–Portal Act1122 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. While some district courts sustained the Act on the basis of the withdrawal of jurisdiction, this action was disapproved by the Courts of Appeals which indicated that the withdrawal of jurisdiction would be ineffective if the extinguishment of the claims as a substantive matter was 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[p.792]process of law or to take private property without just compensation.”1123

Conclusion.—There thus remains a measure of doubt that Congress’ 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 nor from the cases.


Problems Raised by Concurrency

The Constitution established a system of government in which total power, sovereignty, was not unequivocally lodged in one level of government. In Chief Justice Marshall’s words, “our complex system [presents] the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union. . . .” Naturally, in such a system, “contests respecting power must arise.”1124 Contests respecting power may frequently arise in a federal system with dual structures of courts exercising concurrent jurisdiction in a number of classes of cases. Too, the possibilities of frictions grow out of the facts that one set of courts may interfere directly or indirectly with the other through injunctive and declaratory processes, through the use of habeas corpus and removal to release persons from the custody of the other set, and through the refusal by state courts to be bound by decisions of the United States Supreme Court. The relations between federal and state courts are governed in part by constitutional law, with respect, say, to state court interference with federal courts and[p.793]state court refusal to comply with the judgments of federal tribunals, in part by statutes, with respect to the federal law generally enjoining federal–court interference with pending state court proceedings, and in part by self–imposed rules of comity and restraint, such as the abstention doctrine, all applied to avoid unseemly conflicts, which, however, have at times occurred.

Subject to congressional provision to the contrary, state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except suits between States, those to which the United States is a party, those to which a foreign state is a party, and those within the traditional admiralty jurisdiction.1125 Even within this last category, however, state courts, though unable to prejudice the harmonious operation and uniformity of general maritime law,1126 have concurrent jurisdiction over cases that occur within the maritime jurisdiction when such litigation assumes the form of a suit at common law.1127 Review of state court decisions by the United States Supreme Court is intended to protect the federal interest and promote uniformity of law and decision relating to the federal interest.1128 The first category of conflict surfaces here. The second broader category arises from the fact that state interests, actions, and wishes, all of which may at times be effectuated through state courts, are variously subject to restraint by federal courts. Although the possibility always existed,1129 it became much more significant and likely when, in the wake of the Civil War, Congress bestowed general fed[p.794]eral question jurisdiction on the federal courts,1130 enacted a series of civil rights statutes and conferred jurisdiction on the federal courts to enforce them,1131 and most important of all proposed and saw to the ratification of the three constitutional amendments, especially the Fourteenth, which made subject to federal scrutiny an ever– increasing number of state actions.1132

The Autonomy of State Courts

Noncompliance With and Disobedience of Supreme Court Orders by State Courts.—The United States Supreme Court when deciding cases on review from the state courts usually remands the case to the state court when it reverses for “proceedings not inconsistent” with the Court’s opinion. This disposition leaves open the possibility that unresolved issues of state law will be decided adversely to the party prevailing in the Supreme Court or that the state court will so interpret the facts or the Court’s opinion to the detriment of the party prevailing in the Supreme Court.1133 When it is alleged that the state court has deviated from the Supreme Court’s mandate, the party losing below may appeal again1134 or she may presumably apply for mandamus to compel compliance.1135 Statutorily, the Court may attempt to overcome state recalcitrance by a variety of specific forms of judgment.1136 [p.795]If, however, the state courts simply defy the mandate of the Court, difficult problems face the Court, extending to the possibility of contempt citations.1137

The most spectacular disobedience of federal authority arose out of the conflict between the Cherokees and the State of Georgia, which was seeking to remove them and seize their lands, with the active support of President Jackson.1138 In the first instance, after the Court had issued a writ of error to the Georgia Supreme Court to review the murder conviction of a Cherokee, Corn Tassel, and after the writ was served, Corn Tassel was executed on the day set for the event, contrary to the federal law that a writ of error superseded sentence until the appeal was decided.1139 Two years later, Georgia again defied the Court when in Worcester v. Georgia,1140 it set aside the conviction of two missionaries for residing among the Indians without a license. Despite the issuance of a special mandate to a local court to discharge the missionaries, they were not released, and the State’s governor loudly proclaimed resistance. Consequently, the two remained in jail until they agreed to abandon further efforts for their discharge by federal authority and to leave the State, whereupon the governor pardoned them.


1121 Williams v. Rhodes, 393 U.S. 23, 29 (1968) (opinion of the Court.) The elder Justice Harlan perhaps had the same thought in mind when he said that, with regard to Congress’ power over jurisdiction, “what such exceptions and regulations should be it is for Congress, in its wisdom to establish, having of course due regard to all the Constitution.” United States v. Bitty, 208 U.S. 393, 399–400 (1908).
1122 52 Stat. 1060 , 29 U.S.C. Sec. 201 .
1123 Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (2d Cir.), cert. den. 335 U.S. 887 (1948) (Judge Chase). See also Seese v. Bethlehem Steel Co., 168 F. 2d 58, 65 (4th Cir. 1948) (Chief Judge Parker). For recent dicta, see Johnson v. Robison, 415 U.S. 361, 366–367 (1974); Weinberger v. Salfi, 422 U.S. 749, 761–762 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 204 (1977); Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 n. 12 (1986); Webster v. Doe, 486 U.S. 592, 603 (1988); but see id., 611–615 (Justice Scalia dissenting). Note the relevance of United States v. Mendoza–Lopez, 481 U.S. 828 (1987).
1124 Gibbons v. Ogden. 9 Wheat. (22 U.S.) 1.204–205 (1824).
1125 See 28 U.S.C. §§ 1251 , 1331 et seq. Indeed, the presumption is that states courts enjoy concurrent jurisdiction, and Congress must explicity or implicitly confine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–484 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). Federal courts have exclusive jurisdiction of the federal antitrust laws, even though Congress has not spoken expressly or impliedly. See General Investment Co. v. Lake Shore & Michigan Southern R. Co., 260 U.S. 261, 287 (1922). Justice Scalia has argued that, inasmuch as state courts have jurisdiction generally because federal law is law for them, Congress can provide exclusive federal jurisdiction only by explicit and affirmative statement in the text of the statute, Tafflin v. Levitt, supra, 469, but as can be seen that is not now the rule.
1126 Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
1127 Through the “saving to suitors” clause. 28 U.S.C. Sec. 1333 (1). See Madruga v. Superior Court, 346 U.S. 556, 560–561 (1954).
1128 Supra, pp.597–598, 701–703. See 28 U.S.C. Sec. 1257 .
1129 E.g., by a suit against a State by a citizen of another State directly in the Supreme Court, Chisholm v. Georgia, 2 Dall. (2 U.S.) 419 (1793), which was overturned by the Eleventh Amendment; by suits in diversity or removal from state courts where diversity existed, 1 Stat. 78, 79 ; by suits by aliens on treaties, 1 Stat. 77 , and, subsequently, by removal from state courts of certain actions. 3 Stat. 198 . And for some unknown reason, Congress passed in 1793 a statute prohibiting federal court injunctions against state court proceedings. See Toucey v. New York Life Ins. Co., 314 U.S. 118, 120–132 (1941).
1130 Act of March 3, 1875, 18 Stat. 470 .
1131 Civil Rights Act of 1871, Sec. 1, 17 Stat. 13 . The authorization for equitable relief is now 42 U.S.C. Sec. 1983 , while jurisdiction is granted by 28 U.S.C. Sec. 1343 .
1132 See H. Wechsler, The Nationalization of Civil Liberties and Civil Rights (Austin: 1969).
1133 Hart & Wechsler, op. cit., n. 250, 518–521. Notable examples include Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816); Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821); Ableman v. Booth, 21 How. (62 U.S.) 506 (1859). For studies, see Note, Final Disposition of State Court Decisions Reversed and Remanded by the Supreme Court, October Term 1931 to October Term 1940, 55 L. Rev.1357 (1942); Note, Evasion of Supreme Court Mandates in Cases Remanded to State Courts Since 1941, 67 L. Rev.1251 (1954); Schneider, State Court Evasion of United States Supreme Court Mandates: A Reconsideration of the Evidence, 7 L. Rev.191 (1973).
1134 Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816). See 2 W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: 1953), 785–817; 1 C. Warren, The Supreme Court in United States History (Boston: 1926), 442–453. For recent examples, see NAACP v. Alabama, 360 U.S. 240, 245 (1959); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964), after remand, 277 Ala. 89, 167 So. 2d 171 (1964); Stanton v. Stanton, 429 U.S. 501 (1977); General Atomic Co. v. Felter, 436 U.S. 493 (1978).
1135 It does not appear that mandamus has ever actually issued. See In re Blake, 175 U.S. 114 (1899); Ex parte Texas, 315 U.S. 8 (1942); Fisher v. Hurst, 333 U.S. 147 (1948); Lavender v. Clark, 329 U.S. 674 (1946); General Atomic Co. v. Felter, 436 U.S. 493 (1978).
1136 Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816); McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 437 (1819); Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 239 (1824); Williams v. Bruffy, 102 U.S. 248 (1880) (entry of judgment); Tyler v. Maguire, 17 Wall. (84 U.S.) 253 (1873) (award of execution); Stanley v. Schwalby, 162 U.S. 255 (1896); Poindexter v. Greenhow, 114 U.S. 270 (1885) (remand with direction to enter a specific judgment). See 28 U.S.C. Sec. 1651 (a), 2106.
1137 See 18 U.S.C. Sec. 401 . In United States v. Shipp, 203 U.S. 563 (1906), 214 U.S. 386 (1909); 215 U.S. 580 (1909), on action by the Attorney General, the Court appointed a commissioner to take testimony, rendered judgment of conviction, and imposed sentence on a state sheriff who had conspired with others to cause the lynching of a prisoner in his custody after the Court had allowed an appeal from a circuit court’s denial of a petition for a writ of habeas corpus. A question whether a probate judge was guilty of contempt of an order of the Court in failing to place certain candidates on the ballot was certified to the district court, over the objections of Justices Douglas and Harlan, who wished to follow the Shipp practice. In re Herndon, 394 U.S. 399 (1969). See In re Herndon, 325 F. Supp. 779 (M.D. Ala. 1971).
1138 1 C. Warren, The Supreme Court in United States History (Boston: 1926), 729–779.
1139 Id., 732–736.
1140 6 Pet. (31 U.S.) 515 (1832).
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