Classes of Cases and Controversies at the Supreme Court: Doctrine and Practice

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.

Appellate Jurisdiction

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,12 including 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 (federal taxes): Act of August 21, 1937, 50 Stat. 738, 28 U.S.C. § 1341 (state taxes). See also Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 1342 (state rate-making). 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 -115. 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 (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. 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 , rev'd 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. at 567–68, while noting that Congress’s “authority is not, of course, unlimited.” Id. at 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. . . .”

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.” 68 In 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.69 The 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.70 Accordingly, 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 , cert. denied, 335 U.S. 887 (1948). See also Seese v. Bethlehem Steel Co., 168 F.2d 58, 65 (4th Cir. 1948). For later dicta, see Johnson v. Robison, 415 U.S. 361, 366–67 (1974); Weinberger v. Salfi, 422 U.S. 749, 761–62 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201–02, 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. at 611–15 (Justice Scalia dissenting). Note the relevance of United States v. Mendoza-Lopez, 481 U.S. 828 (1987). 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

Conclusion

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.

Footnotes

1

A classic but now dated study is Warren, Legislative and Judicial Attacks on the Supreme Court of the United States: A History of the Twenty-Fifth Section of the Judiciary Act, 47 Am. L. Rev. 1, 161 (1913). The most comprehensive consideration of the constitutional issue is Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv, L. Rev. 1362 (1953). See Hart & Wechsler (6h ed.), supra at 287-305.

2

3 U.S. (3 Dall.) 321 (1796).

3

Judiciary Act of 1789, § 22, 1 Stat. 84.

4

Wiscart v. D'Auchy, 3 U.S. (3 Dall.) 321, 327 (1796). The dissent thought that admiralty cases were not “civil actions” and thus that there was no appellate review. Id. at 326–27. See also Clarke v. Bazadone, 5 U.S. (1 Cr.) 212 (1803); Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799).

5

Durousseau v. United States, 10 U.S. (6 Cr.) 307, 313–314 (1810). “Courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.” Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807) (Chief Justice Marshall). Marshall had earlier expressed his Durousseau thoughts in United States v. More, 7 U.S. (3 Cr.) 159 (1805).

6

Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847) (case held nonreviewable because minimum jurisdictional amount not alleged).

7

Daniels v. Railroad Co., 70 U.S. (3 Wall.) 250, 254 (1865) (case held nonreviewable because certificate of division in circuit did not set forth questions in dispute as provided by statute).

8

73 U.S. (6 Wall.) 318 (1869). That Congress’s apprehensions might have had a basis in fact, see C. Fairman, History of the Supreme Court of the United States, Vol. VI, Pt. I: Reconstruction and Reunion 1864–88 493–495 (1971). McCardle is fully reviewed at pp. 433-514.

9

By the Act of February 5, 1867, § 1, 14 Stat. 386, Congress had authorized appeals to the Supreme Court from circuit court decisions denying habeas corpus. Previous to this statute, the Court's jurisdiction to review habeas corpus decisions, based in § 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat fuzzily conceived. Compare United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806), with Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807). The repealing statute was the Act of March 27, 1868, 15 Stat. 44. The repealed act was reenacted March 3, 1885. 23 Stat. 437.

10

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). In the course of the opinion, Chief Justice Chase speculated about the Court's power in the absence of any legislation in tones reminiscent of Marshall's comments. Id. at 513.

11

74 U.S. at 514.

12

See, e.g., Justice Frankfurter's remarks in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1949) (dissenting): “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” In The Francis Wright, 105 U.S. 381, 385–386 (1882), upholding Congress’s power to confine Supreme Court review in admiralty cases to questions of law, the Court said: “[W]hile the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe. . . . What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not.” See also Luckenbuch S. S. Co. v. United States, 272 U.S. 533, 537 (1926); American Construction Co. v. Jacksonville, T. & K.W. Ry., 148 U.S. 372, 378 (1893); United States v. Bitty, 208 U.S. 393 (1908); United States v. Young, 94 U.S. 258 (1876). Numerous restrictions on the exercise of appellate jurisdiction have been upheld. E.g., Congress for a hundred years did not provide for a right of appeal to the Supreme Court in criminal cases, except upon a certification of division by the circuit court: at first appeal was provided in capital cases and then in others. F. Frankfurter & J. Landis, supra at 79, 109-120. Other limitations noted heretofore include minimum jurisdictional amounts, restrictions of review to questions of law and to questions certified from the circuits, and the scope of review of state court decisions of federal constitutional questions. See Walker v. Taylor, 46 U.S. (5 How.) 64 (1847). Though McCardle is the only case in which Congress successfully forestalled an expected decision by shutting off jurisdiction, other cases have been cut off while pending on appeal, either inadvertently, Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866), or intentionally, Railroad Co. v. Grant, 98 U.S. 398 (1878), by raising the requirements for jurisdiction without a reservation for pending cases. See also Bruner v. United States, 343 U.S. 112 (1952); District of Columbia v. Eslin, 183 U.S. 62 (1901).

13

583 U.S. ___, No. 16-498, slip op. at 7–8 (2018) (plurality opinion) ( “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.’” (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 33 (1812); Trainmen v. Toledo, P. & W.R. Co., 321 U.S. 50, 63–64 (1944))).

14

Supra, “One Supreme Court” and “Inferior Courts” .

15

Article III, § 1, 2.

16

Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 374 (1816). For an effort to reframe Justice Story's position in modern analytical terms, see the writings of Professors Amar and Clinton, supra and infra.

17

Judiciary Act of 1789, 1 Stat. 73. See Warren, New Light on the History of the Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923). A modern study of the first Judiciary Act that demonstrates the congressional belief in discretion to structure jurisdiction is Casto, The First Congress's Understanding of Its Authority over the Federal Courts' Jurisdiction, 26 B. C. L. Rev. 1101 (1985).

18

4 U.S. (4 Dall.) 8 (1799).

19

“[N]or shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.” 1 Stat. 79.

20

Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799).

21

4 U.S. at 10.

22

In Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807), Marshall observed that “courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.”

23

United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812). Justice Johnson continued: “All other Courts [besides the Supreme Court] created by the general government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer.” See also Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721–722 (1838).

24

44 U.S. (3 How.) 236 (1845).

25

44 U.S. at 244–45. Justices McLean and Story dissented, arguing that the right to construe the law in all matters of controversy is of the essence of judicial power. Id. at 264.

26

Supra.

27

49 U.S. (8 How.) 441 (1850).

28

E.g., Kline v. Burke Constr. Co., 260 U.S. 226, 233–234 (1922); Ladew v. Tennessee Copper Co., 218 U.S. 357, 358 (1910); Venner v. Great Northern R. Co., 209 U.S. 24, 35 (1908); Kentucky v. Powers, 201 U.S. 1, 24 (1906); Stevenson v. Fain, 195 U.S. 165, 167 (1904); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 513–521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 251–252 (1868).

29

By the Voting Rights Act of 1965, Congress required covered states that wished to be relieved of coverage to bring actions to this effect in the District Court of the District of Columbia. In South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966), Chief Justice Warren for the Court said: “Despite South Carolina's argument to the contrary, Congress might appropriately limit litigation under this provision to a single court in the District of Columbia, pursuant to its constitutional power under Art. III, § 1, to 'ordain and establish' inferior federal tribunals.” See also Palmore v. United States, 411 U.S. 389, 400–02 (1973); Swain v. Pressley, 430 U.S. 372 (1977); Taylor v. St. Vincent's Hosp., 369 F. Supp. 948 (D. Mont. 1973), aff'd, 523 F.2d 75 (9th Cir.), cert. denied, 424 U.S. 948 (1976).

30

Id. at 7–8 (2018) (plurality opinion) (quoting Hudson, 11 U.S. (7 Cranch) at 33; Trainmen, 321 U.S. at 63–64).

31

25 U.S.C. § 5108.

32

Patchak, slip op. at 1–2.

33

Gun Lake Trust Land Reaffirmation Act, Pub. L. No. 113-79, § 2, 128 Stat. 1913, 1913– 14 (2014).

34

Patchak, slip op. at 4.

35

Id.

36

Id. (citing Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 94–95 (1998)).

37

Id. Moreover, not only does Congress have the power to restrict the jurisdiction of lower courts, it also has significant discretion in structuring how appellate courts review lower court judgments. See Ayestas v. Davis, 584 U.S. ___, No. 16-6795, slip op. at 14 (2018) (rejecting the argument that appellate review must occur through the traditional Article III hierarchy, as “[n]othing in the Constitution ties Congress to the typical structure of appellate review established by statute.” ).

38

1 Stat. 73. For a comprehensive discussion with itemization, see Frankfurter & Landis, Power of Congress over Procedure in Criminal Contempts in 'Inferior' Federal Courts: A Study in Separation of Powers, 37 Harv. L. Rev. 1010 (1924).

39

The Act of March 2, 1867, 10, 14 Stat. 475, as amended, now 26 U.S.C. § 7421 (federal taxes): Act of August 21, 1937, 50 Stat. 738, 28 U.S.C. § 1341 (state taxes). See also Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 1342 (state rate-making).

40

Compare Snyder v. Marks, 109 U.S. 189 (1883), with Dodge v. Brady, 240 U.S. 122 (1916), with Allen v. Regents, 304 U.S. 439 (1938).

41

F. Frankfurter & I. Greene, The Labor Injunction (1930).

42

47 Stat. 70 (1932), 29 U.S.C. §§ 101-115.

43

In Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938), the Court simply declared: “There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.”

44

E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); Brotherhood of Railroad Trainmen v. Chicago River & I. R.R., 353 U.S. 30 (1957); Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970).

45

56 Stat. 23 (1942).

46

319 U.S. 182 (1943).

47

321 U.S. 414 (1944).

48

321 U.S. at 468. In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), purportedly in reliance on Yakus and other cases, the Court held that a collateral challenge must be permitted to the use of a deportation proceeding as an element of a criminal offense where effective judicial review of the deportation order had been denied. A statutory scheme similar to that in Yakus was before the Court in Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978), but statutory construction enabled the Court to pass by constitutional issues that were not perceived to be insignificant. See esp. id. at 289 (Justice Powell concurring). See also Harrison v. PPG Industries, 446 U.S. 578 (1980), and id. at 594 (Justice Powell concurring).

49

This was Justice Story's theory propounded in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 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 F. 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 B.U. L. Rev. 205 (1985); Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990). Rebuttal articles include Meltzer, The History and Structure of Article III, id. at 1569; Redish, Text, Structure, and Common Sense in the Interpretation of Article III, id. at 1633; and a response by Amar, id. at 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 U. 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, The First Congress’s Understanding of its Authority over the Federal Court's Jurisdiction, 26 B.C. L. Rev. 1101 (1985).

50

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.

51

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).

52

An extraordinary amount of writing has been addressed to the issue, only a fraction of which is touched on here. See Hart & Wechsler (6th ed.), supra at 275-324.

53

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. at 611–15 (concurring).

54

74 U.S. (7 Wall) 506 (1869). For the definitive analysis of the case, see Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz. L. Rev. 229 (1973).

55

Article I, § 9, cl. 2.

56

Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1869). 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, § 106, 110 Stat. 1214, 1220, amending 28 U.S.C. § 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.

57

75 U.S. (8 Wall.) 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.

58

Cf. Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C.Cir. 1949), rev'd 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. at 567–68, while noting that Congress’s “authority is not, of course, unlimited.” Id. at 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. . . .”

59

80 U.S. (13 Wall.) 128 (1872). See C. Fairman, supra at 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 Armstrong v. United States, 80 U.S. (13 Wall.) 154 (1872), as in fact a judicial invalidation of a jurisdictional limitation. Young, id. at 1222–23 n.179.

60

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, § 2, cl. 1. The President's pardons all provided for restoration of property, except slaves, and in United States v. Padelford, 76 U.S. (9 Wall.) 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).

61

United States v. Klein, 80 U.S. (13 Wall.) 128, 145–46 (1872).

62

80 U.S. at 147.

63

80 U.S. at 146.

64

See Bank Markazi v. Peterson, No. 14–770, 578 U.S. ___, slip op. at 13 & n.18 (2016) (noting various secondary sources describing the Klein opinion as being “deeply puzzling,” “delphic,” and “baffling” ).

65

See id. at 12–13 & n.17. The Court in Bank Markazi noted that the precise constitutional concern in Klein was tied to the President’s pardon power. Id. at 14–15. Specifically, the Court viewed Klein as a case in which the Congress, lacking the authority to impair directly the effect of a pardon, attempted to alter indirectly the legal effect of a pardon by directing a court to a particular outcome, and, in so doing, was compelling a court to a result that required the judiciary to act unconstitutionally. See id. at 15 & n.19 (noting the constitutional infirmity identified by Klein was that the challenged law “attempted to direct the result without altering the legal standards governing the effect of a pardon—standards Congress was powerless to prescribe.” ).

66

See, e.g., Bank Markazi, slip op. at 15 (holding that Klein’s prohibition “cannot” be taken “at face value” because Congress has the power to “make valid statutes retroactively applicable to pending cases” ) (quoting R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 324 (7th ed. 2015)); Plaut v. Spendthrift Farms, Inc., 514 U.S. 211, 218 (1995) (noting that Klein’s “prohibition does not take hold when Congress ‘amend[s] applicable law’” ) (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441 (1992)); Robertson, 503 U.S. at 437–38, 441.

67

See Bank Markazi, slip op. at 16. While retroactive legislation, standing alone, may not violate Klein’s prohibition, other constitutional provisions—including Article I’s prohibitions on ex post facto laws and bills of attainder and the Fifth Amendment’s Due Process and Takings Clauses—may otherwise restrict Congress’s ability to legislate retroactively. See id. (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 266–67 (1994)).

68

See id. at 16; see also Robertson, 503 U.S. at 434–39 (upholding a statute permitting timber harvesting, altering the outcome of pending litigation over the permissibility of such harvesting).

69

Bank Markazi, slip op. at 21.

70

Id. The Court’s holding in Bank Markazi may have been influenced by the case touching on foreign affairs, “a domain in which the controlling role of the political branches is both necessary and proper.” Id. at 22. In concluding its opinion in Bank Markazi, the Court, citing to long-established historical practices in the realm of foreign affairs, “stress[ed]” that congressional regulation of claims over foreign-state property generally does not “inva[de] upon the Article III judicial power.” Id. at 22–23.

71

See id. at 18–19. For example, the Bank Markazi Court noted that a statute that directs that in a hypothetical case— “Smith v. Jones” —that “Smith wins,” would violate the principle of Klein. Nonetheless, Congress can alter the underlying substantive law affecting such a case, allowing Congress to accomplish indirectly what the rule of Klein directly prohibits. See id. at 12–13 n.17.

72

Patchak, slip op. at 5–6.

73

25 U.S.C. § 5108.

74

Patchak, slip op. at 1–2 (plurality opinion).

75

Gun Lake Trust Land Reaffirmation Act, Pub. L. No. 113-79, § 2, 128 Stat. 1913, 1913– 14 (2014).

76

Patchak, slip op. at 4.

77

Id.

78

Id. at 5 ( “The separation of powers, among other things, prevents Congress from exercising the judicial power. One way that Congress can cross the line from legislative power to judicial power is by ‘usurp[ing] a court’s power to interpret and apply the law to the [circumstances] before it.’ . . . At the same time, the legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins.” (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995)) (quoting Bank Markazi v. Peterson, 578 U.S. ___, No. 14-770, slip op. at 12 (2016))).

79

Id. at 5–6 (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429, 438 (1992); Plaut, 514 U.S. at 218).

80

Id. at 5.

81

Id. at 6.

82

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 Yards Co. v. United States, 298 U.S. 38 (1936).

83

Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).

84

285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented.

85

285 U.S. at 56, 60, 64.

86

See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (plurality opinion), and id. at 100–03, 109–11 (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. at 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, 578–79 (1968); Agosto v. INS, 436 U.S. 748, 753 (1978); United States v. Raddatz, 447 U.S. 667, 682–84 (1980), and id. at 707–12 (Justice Marshall dissenting).

87

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).

88

Williams v. Rhodes, 393 U.S. 23, 29 (1968). The elder Justice Harlan perhaps had the same thought in mind when he said that, with regard to Congress’s 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 provisions of the Constitution.” United States v. Bitty, 208 U.S. 393, 399–400 (1908).

89

52 Stat. 1060, 29 U.S.C. § 201.

90

Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied, 335 U.S. 887 (1948). See also Seese v. Bethlehem Steel Co., 168 F.2d 58, 65 (4th Cir. 1948). For later dicta, see Johnson v. Robison, 415 U.S. 361, 366–67 (1974); Weinberger v. Salfi, 422 U.S. 749, 761–62 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201–02, 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. at 611–15 (Justice Scalia dissenting). Note the relevance of United States v. Mendoza-Lopez, 481 U.S. 828 (1987).

91

169 F.2d at 257.

92

169 F.2d at 261–62.