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Congressional Control Over the Jurisdiction of the Federal Courts: A New Threat to James Madison’s Compromise
Brandeis Law Journal (2001)
  • Lloyd C. Anderson, University of Akron School of Law
A series of decisions by the U.S. Supreme Court in the past decade concerning Congress's power to regulate the jurisdiction of the federal courts requires a fresh look at the extent to which the Constitution limits congressional authority to strip the federal courts of jurisdiction and to direct the exercise of existing jurisdiction. Nearly half a century ago, Professor Henry Hart raised the question whether conferring upon Congress unlimited control of judicial jurisdiction is consistent with the rule of law and government under a written constitution. With respect to legislation eliminating jurisdiction, Hart expressed the view that legislative exceptions to the Supreme Court's Article III appellate jurisdiction "must not be such as will destroy the essential role of the Supreme Court in the constitutional plan," whereas Congress has plenary, unlimited power to wrest jurisdiction from the inferior federal courts. On the distinct issue of Congress's power to direct judges to exercise existing jurisdiction in a particular manner, Hart proposed that Congress cannot eliminate all judicial authority to afford any remedy for particular rights; so long as it leaves open some remedy, however, the Constitution imposes no barrier to Congress's freedom to prohibit those remedies it deems undesirable. Hart also asserted that Congress does not have unlimited power to order a court how to decide a case, indicating that Congress cannot direct a result contrary to judicial interpretation of the Constitution. Hart's theses gained new prominence in the 1980s when opponents of controversial Supreme Court decisions on school prayer, abortion, school desegregation, and the military draft introduced bills either stripping the federal courts of jurisdiction over such cases, or prohibiting the use of certain remedies. Such proposed legislation sparked a fierce academic debate over congressional power to regulate jurisdiction. Professor Lawrence Sager, for example, argued that such legislation was unconstitutional because it prevented the vindication of substantive constitutional rights. While all of these bills died in Congress, the academic debate continued to rage for a decade. Some eventually expressed frustration with the "unending" nature of the debate, characterizing it as lacking any practical value once the jurisdiction-stripping bills expired, 10 and "choking on redundancy." The critics of the debate, however, were soon proven wrongby the Supreme Court. In Felker v. Turpin and Reno v. American-Arab Anti-Discrimination Committee, the Court wrestled with the age-old question of Congress's power to eliminate federal court jurisdiction of certain types of cases. In Felker, the Court upheld a provision depriving it of appellate jurisdiction over the dismissal of a "second or successive" habeas corpus petition, on the ground that Congress had not deprived it of all jurisdiction because the Court retained original jurisdiction over such cases. In Reno, the Court held that legislation severely restricting judicial review of alien deportation proceedings was constitutional because Congress had not eliminated all such judicial review. The Court in both cases left unresolved the overriding question presented by the jurisdiction-stripping bills of the early 1980s-whether Congress has the power to completely obliterate all jurisdiction over certain types of cases. In three other cases, there arose the recurring issue of Congress's power to direct the manner in which federal courts exercise their existing jurisdiction. In Robertson v. Seattle Audubon Society and Miller v. French, the Court ruled that Congress has the power to dictate decisions in pending cases so long as it alters the underlying substantive law. In Plaut v. Spendthrift Farm, however, the Court imposed a new limitation on the power to regulate jurisdiction, ruling that a congressional attempt to direct the reopening of final judgments violates the doctrine of separation of powers. The debate is thus not academic at all. Congressional hostility to some federal court decisions appears to be a fact of American political life. Since Congress cannot directly overrule a judicial decision interpreting the Constitution, members of Congress engage in periodic attempts to restrict judicial jurisdiction as a means of reversing the effects of disfavored constitutional decisions. The provisions of Article III, Section 1 conferring appellate jurisdiction on the Supreme Court, subject to "Exceptions and Regulations" created by Congress, and granting power to Congress to "ordain and establish" lower federal courts represent a compromise at the Constitutional Convention engineered by James Madison. It was designed to strike a proper balance between the need for an independent federal judiciary to enforce supreme federal law and the competing need to ensure political control over the judiciary. These recent decisions call into question whether the Court has maintained a proper balance between the competing needs for political control over an unelected judiciary and for the rule of law by an independent judiciary. Part I of this article will discuss the history of congressional control of jurisdiction and the theses of Professor Hart. Part II will analyze the academic debate that arose from the jurisdiction-stripping proposals of the early 1980s. Part III will evaluate the quintet of cases decided in the past decade. The article concludes that, while Felker, Reno, Plaut and Robertson were correctly decided and reflect a proper compromise between majoritarian rule and judicial independence, the decision in Miller-upholding the automatic stay provision of the Prison Litigation Reform Act (PLRA)-is wrong and constitutes a severe danger to the long-established and healthy compromise between the competing values of political control of the judicial branch and judicial guarantees of the supremacy of federal law.
  • Congress,
  • Congressional control,
  • federal courts,
  • James Madison Compromise
Publication Date
Citation Information
Lloyd C. Anderson, Congressional Control Over the Jurisdiction of the Federal Courts: A New Threat to James Madison’s Compromise, 39 Brandeis Law Journal 417 (2001).