The Theory Reconsidered

Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all 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.


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,1259 inherent judicial power,1260 and a theory, variously expressed, that the Supreme Court has “essential constitutional functions” of judicial review that Congress may not impair through jurisdictional limitations,1261 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.1262 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.1263

Ex parte McCardle1264 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.1265

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.”1266 A year later, in Ex parte Yerger,1267 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.1268

Another Reconstruction Congress attempt to curb the judiciary failed in United States v. Klein,1269 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.1270 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.”1271 The statute was void for two reasons; it “infring[ed] the constitutional power of the Executive,”1272 and it “prescrib[ed] a rule for the decision of a cause in a particular way.”1273 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,1274 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.1275 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.”1276 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.1277 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.”1278 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.1279 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.1280 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.1281

Other restraints on congressional power over the federal courts may be gleaned from the opinion in the much-disputed Crowell v. Benson.1282 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.1283 What this might mean was elaborated in Crowell v. Benson,1284 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.”1285

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,1286 but the Court has never applied the principle to control another case.1287

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.”1288 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 Act1289 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.1290 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.”1291 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.”1292

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.

1259 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 Fed. 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).

1260 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.

1261 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).

1262 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.

1263 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).

1264 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).

1265 Article I, § 9, cl. 2.

1266 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. 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.

1267 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.

1268 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. . . .”

1269 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.

1270 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).

1271 United States v. Klein, 80 U.S. (13 Wall.) 128, 145–46 (1872).

1272 80 U.S. at 147.

1273 80 U.S. at 146.

1274 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”).

1275 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.”).

1276 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’sthe 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.

1277 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)).

1278 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).

1279 Bank Markazi, slip op. at 21.

1280 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.

1281 See Bank Markazi, slip op. 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.

1282 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).

1283 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).

1284 285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented.

1285 285 U.S. at 56, 60, 64.

1286 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).

1287 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).

1288 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).

1289 52 Stat. 1060, 29 U.S.C. § 201.

1290 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).

1291 169 F.2d at 257.

1292 169 F.2d at 261–62.

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