Book Description

Over the years, various proposals have been made to limit the jurisdiction of federal courts to hear cases regarding particular areas of constitutional law such as busing, abortion, prayer in school, and most recently, reciting the Pledge of Allegiance. Several such proposals passed the House in the 108th Congress, including an amendment to H.R. 2799 to limit the use of funds to enforce a federal court decision regarding the Pledge of Allegiance; H.R. 2028, to limit the jurisdiction of federal courts to hear cases regarding the Pledge of Allegiance; and H.R. 3313, to limit federal court jurisdiction over questions regarding the Defense of Marriage Act. Generally, proponents of these proposals are critical of specific decisions made by the federal courts in that particular substantive area, and the proposals are usually intended to express disagreement with cases in those areas and/or to influence the results or applications of such cases. Proposals of this type are often referred to as "court-stripping" legislation. The label arises from the fact that many of these proposals invoke the Congress's power to regulate federal court jurisdiction, i.e., the courts' power to consider cases of a particular class and in a particular procedural posture. It should be noted, however, that some proposals characterized as "courtstripping," rather than focusing on jurisdiction, address what remedies are available to litigants or what procedures must be followed to bring constitutional cases. Although the United States Congress has broad authority to regulate in all three of these areas of judicial power -- jurisdiction, procedure and remedies -- this authority is generally used to address broader issues of court efficiency and resource allocation. This report, however, is limited to proposals to allocate judicial power in a way that affects or influences the result in cases concerning specific constitutional issues. There are at least three different types of "court-stripping" proposals: (1) limiting the jurisdiction of the inferior federal courts, (2) limiting the jurisdiction of all federal courts, and (3) limiting the jurisdiction of both state and federal courts together. While the Congress has broad authority under Article III of the Constitution to regulate the jurisdiction, procedures and remedies available in state and federal courts, this power is generally not used as a means to affect substantive law. Consequently, the federal courts have only rarely faced the question of what happens when the Congress acts under Article III to limit substantive litigation, and the Supreme Court has not squarely faced a modern law limiting jurisdiction to affect or influence litigation of constitutional questions. Thus, an analysis of these proposals relies to some extent on textual analysis and scholarly discussion. Congress's authority to limit the jurisdiction of inferior federal courts appears relatively broad, so that laws limiting the jurisdiction of the lower federal courts would appear to raise fewer constitutional issues. Significant constitutional questions arise, however, with regard to whether Congress could eliminate both inferior federal court and Supreme Court review of constitutional matters. Further, elimination of review of constitutional issues by any court -- state or federal court -- seems the least likely to survive constitutional scrutiny. Various commentators, however, have suggested that limiting jurisdiction for any court for a particular class of cases raises questions regarding both the separation of powers doctrine and the Equal Protection Clause.