Here is an interesting question to ponder: does Congress have the power to exempt from the United States Supreme Court or Federal courts cases dealing with certain topics?
This question arises from a rather startling trend I’ve noticed within conservative circles, and that is the desire to see certain topics stripped from Federal jurisdiction, the most prominent being marriage laws. Quoting the 2008 Republican Platform (page 53):
We also urge Congress to use its Article III, Section 2 power to prevent activist federal judges from imposing upon the rest of the nation the judicial activism in Massachusetts and California.
To begin the discussion, let us evaluate Article III, Section 2 of the Constitution of the United States, beginning with the first paragraph which outlines the scope of judicial power:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The idea that Congress can restrict the jurisdiction of the Federal courts is derived from the second paragraph of the section (emphasis added):
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.
This emphasized text known as the Exceptions Clause. Now Congress cannot take jurisdiction away entirely from the Federal courts. The judicial power is strictly set out in the Constitution and Congress cannot muck with it. Where the Supreme Court has appellate jurisdiction a lower court must have original jurisdiction. Congress cannot usurp the judicial power by failing to provide a court of original jurisdiction, and it cannot append the original jurisdiction of the Supreme Court except by way of amending the Constitution.
In other words, under Article III of the Constitution, and in accordance with the First Amendment’s protection of the right to a redress of grievances, there must always be a court of original jurisdiction for the entire scope of the judicial power, but whether there will be a court of appellate jurisdiction is entirely up to Congress.
Congress is able, by the Constitution, at any time, to take away from the Circuit Courts and the Supreme Court the ability to hear an appeal on a specific case, a range of cases, or possibly even all cases. Don’t think this can actually happen? It already has. It is known as "jurisdiction stripping".
With regard to the case Ex parte McCardle, 74 US 506 (1869), Congress stripped from the Supreme Court of the United States the ability to hear the appeal of that case while the Court was hearing and adjudicating the case. Now completely powerless, the Supreme Court was constitutionally required to throw out the appeal.
Worst still is what led to the case. William McCardle was a journalist and Sergeant in the Confederate Army. After the Civil War during Reconstruction, exercising his rights of free speech, he published literature advocating opposition to the Reconstruction laws in place at the time. He was arrested and jailed under by a military officer by authority of the Military Reconstruction Act of 1867.
McCardle invoked his right of habeas corpus. When the writ was issued, it was automatically reviewed by the Court, and the court found his military detention to be lawful. McCardle appealed to the United States Supreme Court under the Habeas Corpus Act of 1867, which granted them appellate jurisdiction of habeas petitions. Oral arguments were heard, but before the Supreme Court could render an opinion, Congress took swift action and repealed the Habeas Corpus Act, effectively removing the Supreme Court’s appellate jurisdiction.
Powerless to act, the Supreme Court, acting unanimously, affirmed Congress’s power under Article III, Section 2, and dismissed the appeal. McCardle had no option for appealing his military detention.
Fast forward to today.
There are two lawsuits currently before United States District Courts for adjudication: the lawsuit by the Obama administration against the Arizona immigration law, and the lawsuit by several States against the Obama administration regarding the Patient Protection and Affordable Care Act of 2010. Think about this for a moment.
Let us presume the Courts rule in favor of the Obama administration on the Arizona law. Congress, with their majorities, could act swiftly to remove from the Circuit Court and the Supreme Court the ability to hear appeals on that case. The same if the Court were to rule in favor of the Obama administration on the PPACA. This has the ability to set a dangerous precedent.
And the Republicans want Congress to do this to take away appellate review with regard to gay marriage and, likely also, abortion. Interesting how the tables can be turned against you on something a little more vital to our republic. I wonder if the Republican party is willing to withdraw from their platform the call for the exercise of Article III, Section 2. Doubtful.
Now Congress cannot take away the original jurisdiction of the Federal judiciary, and there must always be a court of original jurisdiction. But whether any Federal court will have appellate jurisdiction is up to Congress, and they can take away appellate jurisdiction for any to all cases at any time.
