Annotation 20 - Article III

Clause 2. Original and Appellate Jurisdiction; Exceptions and Regulations of Appellate Jurisdiction


From the beginning, the Supreme Court has assumed that its original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by Congress. 1041 In Chisholm v. Georgia, 1042 the Court entertained an action of assumpsit against Georgia by a citizen of another State. Congress in Sec. 3 of the Judiciary Act of 1789 1043 purported to invest the Court with original jurisdiction in suits between a State and citizens of another State, but it did not authorize actions of assumpsit in such cases nor did it prescribe forms of process for the exercise of original jurisdiction. Over the dissent of Justice Iredell, the Court, in opinions by Chief Justice Jay and Justices Blair, Wilson, and Cushing, sustained its jurisdiction and its power to provide forms of process and rules of procedure in the absence of congressional enactments. The backlash of state sovereignty sentiment resulted in the proposal and ratification of the Eleventh Amendment, which did not, however, affect the direct flow of original jurisdiction to the Court, although those cases to which States were parties were now limited to States as party plaintiffs, to two or more States disputing, or to United States suits against States. 1044  

By 1861, Chief Justice Taney could confidently enunciate, after review of the precedents, that in all cases where original jusrisdiction is given by the Constitution, the Supreme Court has authority ''to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice.'' 1045  

Although Chief Justice Marshall apparently assumed the Court had exclusive jurisdiction of cases within its original jurisdiction, 1046 Congress from 1789 on gave the inferior federal courts concurrent jurisdiction in some classes of such cases. 1047 Sustained in the early years on circuit, 1048 this concurrent jurisdiction was finally approved by the Court itself. 1049 The Court has also relied on the first Congress' interpretation of the meaning of Article III in declining original jurisdiction of an action by a State to enforce a judgment for a precuniary penalty awarded by one of its own courts. 1050 Noting that Sec. 13 of the Judiciary Act had referred to ''controversies of a civil nature,'' Justice Gray declared that it ''was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.'' 1051  

However, another clause of Sec. 13 of the Judiciary Act of 1789 was not accorded the same presumption by Chief Justice Marshall, who, interpreting it as giving the Court power to issue a writ of mandamus on an original proceeding, declared that as Congress could not restrict the original jurisdiction neither could it enlarge it and pronounced the clause void. 1052 While the Chief Justice's interpretation of the meaning of the clause may be questioned, no one has questioned the constitutional principle thereby proclaimed. Although the rule deprives Congress of power to expand or contract the jurisdiction, it allows a considerable latitude of interpretation to the Court itself. In some cases, as in Missouri v. Holland, 1053 the Court has manifested a tendency toward a liberal construction of its original jurisdiction, but the more usual view is that ''our original jurisdiction should be invoked sparingly.'' 1054 Original jurisdiction ''is limited and manifestly to be sparingly exercised, and should not be expanded by construction.'' 1055 Exercise of its original jurisdiction is not obligatory on the Court but discretionary, to be determined on a case- by-case basis on grounds of practical necessity. 1056 It is to be honored ''only in appropriate cases. And the question of what is appropriate concerns of course the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer.'' 1057 But where claims are of sufficient ''seriousness and dignity,'' in which resolution by the judiciary is of substantial concern, the Court will hear them. 1058  


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. 1059 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, 1060 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. 1061 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.'' 1062 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.'' 1063 Later Justices viewed the matter differently than had 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.'' 1064 In order for a case to come within its appellate jurisdiction, the Court has said, ''two things must concur: the Con stitution 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.'' 1065  

This congressional power, conferred by the language of Article III, Sec. 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, 1066 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. 1067 Although the Court had already heard argument on the merits, it then dismissed for want of jurisdiction. 1068 ''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.'' 1069 Although McCardle grew out of the stresses of Reconstruction, the principle there applied has been similarly affirmed and applied in later cases. 1070  

Jurisdiction of the Inferior Federal Courts .--The Framers, as we have seen, 1071 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.'' 1072 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, 1073 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. 1074 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, 1075 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 Sec. 11 of the Judiciary Act of 1789. 1076 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 doubt 1077 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.'' 1078 Applying Sec. 11, the Court held that the circuit court had lacked jurisdiction.

Chief Justice Marshall himself soon made similar assertions, 1079 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.'' 1080 In Cary v. Curtis, 1081 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.'' 1082 Five years later, the validity of the assignee clause of the Judiciary Act of 1789 1083 was placed in issue in Sheldon v. Sill, 1084 in which diversity of citizenship had been created by assignment of a negotiable instrument. It was argued that inasmuch as 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 these contentions 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 has been cited and reaffirmed numerous times, 1085 and has been quite recently applied. 1086  

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. 1087 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. 1088 Though the courts have variously interpreted these restrictions, 1089 they have not denied the power to impose them.

Reacting to judicial abuse of injunctions in labor disputes, 1090 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. 1091 The Court seemingly experienced no difficulty upholding the Act, 1092 and it has liberally applied it through the years. 1093  

Congress' power to confer, withhold, and restrict jurisdiction is clearly revealed in the Emergency Price Control Act of 1942 1094 and in the cases arising from it. Fearful that the price control pro gram 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 consitutionality of the Act was sustained in Lockerty v. Phillips. 1095 In Yakus v. United States, 1096 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, 1097 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 desired by manipulation of jurisdiction and indeed the cases reflect certain limitations. Setting to one side various formulations, such as mandatory vesting of jurisdiction, 1098 inherent judicial power, 1099 and a theory, variously expressed, that the Supreme Court has ''essential constitutional functions'' of judicial review that Congress may not impair through jurisdictional limitations, 1100 which lack textual and subsequent judicial support, one can see nonetheless 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. 1101 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. 1102  

Ex parte McCardle 1103 marks the furtherest 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. 1104  

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 de nied. 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.'' 1105 A year later, in Ex parte Yerger, 1106 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. 1107  

Another Reconstruction Congress attempt to curb the judiciary failed in United States v. Klein, 1108 in which 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 was voided. 1109 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.'' 1110 The statute was void for two reasons; it ''infring[ed] the constitutional power of the Executive,'' 1111 and it ''prescrib[ed] a rule for the decision of a cause in a particular way.'' 1112 Klein thus stands for the proposition that Congress may not violate the principle of separation of powers 1113 and that it may not accomplish certain forbidden substantive acts by casting them in jurisdictional terms. 1114  

Other restraints on congressional power over the federal courts may be gleaned from the opinion in the much-disputed Crowell v. Benson. 1115 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. 1116 What this might mean was elaborated in Crowell v. Benson, 1117 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 law and fact, 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.'' 1118  

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, 1119 but the Court has never applied the principle to control another case. 1120  

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;'' Justice Black said in a different context, ''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.'' 1121 The Supreme Court has had no occasion to deal with this principle in the context of Congress' power over its jurisdiction and the jurisdiction of the inferior federal courts, but the passage of the Portal-to-Portal Act 1122 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. While some district courts sustained the Act on the basis of the withdrawal of jurisdiction, this action was disapproved by the Courts of Appeals which indicated that the withdrawal of jurisdiction would be ineffective if the extinguishment of the claims as a substantive matter was 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.'' 1123  

Conclusion .--There thus remains a measure of doubt that Congress' 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 nor from the cases.


[Footnote 1041] But in Sec. 13 of the Judiciary Act of 1789, 1 Stat. 80, Congress did so purport to convey the jurisdiction and the statutory conveyance exists today. 28 U.S.C. Sec. 1251. It does not, however, exhaust the listing of the Constitution.

[Footnote 1042]   2 U.S. ( Dall.) 419 (1793). In an earlier case, the point of jurisdiction was not raised. Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 (1792).

[Footnote 1043] 1 Stat. 80.

[Footnote 1044] On the Eleventh Amendment, see infra. On suits involving States as parties, see supra.

[Footnote 1045] Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861).

[Footnote 1046] Marbury v. Madison, 5 U.S. (1 Cr.) 137, 174 (1803).

[Footnote 1047] In Sec. 3 of the 1789 Act. The present division is in 28 U.S.C. Sec. 1251.

[Footnote 1048] United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C.Pa. 1793).

[Footnote 1049] Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel. Johnson, 111 U.S. 449 (1884). Such suits could be brought and maintained in state courts as well, the parties willing. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel. Poporici v. Alger, 280 U.S. 379 (1930).

[Footnote 1050] Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

[Footnote 1051] Id., 297. See also the dictum in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 398 -399 (1821); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431 -432 (1793).

[Footnote 1052] Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). The Chief Justice declared that ''a negative or exclusive sense'' had to be given to the affirmative enunciation of the cases to which original jurisdiction extends. Id., 174. This exclusive interpretation has been since followed. Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807); New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1831); Ex parte Barry, 43 U.S. (2 How,) 65 (1844); Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 252 (1864); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 98 (1869). In the curious case of Ex parte Levitt, 302 U.S. 633 (1937), the Court was asked to unseat Justice Black on the ground that his appointment violated Article I. Sec. 6, cl.2. Although it rejected petitioner's application, the Court did not point out that it was being asked to assume original jurisdiction in violation of Marbury v. Madison.

[Footnote 1053]   252 U.S. 416 (1920). See also South Carolina v. Katzenbach, 383 U.S. 301 (1966), and Oregon v. Mitchell, 400 U.S. 112 (1970).

[Footnote 1054] Utah v. United States, 394 U.S. 89, 95 (1968).

[Footnote 1055] California v. Southern Pacific Co., 157 U.S. 229, 261 (1895). Indeed, the use of the word ''sparingly'' in this context is all but ubiquitous. E.g., Wyoming v. Oklahoma, 112 S.Ct. 789, 798-800 (1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981); United States v. Nevada, 412 U.S. 534, 538 (1973).

[Footnote 1056] Texas v. New Mexico, 462 U.S. 554, 570 (1983).

[Footnote 1057] Illinois v. City of Milwaukee, 406 U.S. 91, 93 -94 (1972). In this case, and in Washington v. General Motors Corp., 406 U.S. 109 (1972), and Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court declined to permit adjudication of environmental pollution cases manifestly within its original jurisdiction because the nature of the cases required the resolution of complex, novel, and technical factual questions not suitable for resolution at the Court's level as a matter of initial decision but which could be brought in the lower federal courts. Not all such cases, however, were barred. Vermont v. New York 406 U.S. 186 (1972) (granting leave to file complaint). In other instances, notably involving ''political questions,'' cf. Massachusetts v. Mellon, 262 U.S. 447 (1923), the Court has simply refused permission for parties to file bills of complaint without hearing them on the issue or producing an opinion. E.g., Massachusetts v. Laird, 400 U.S. 886 (1970) (constitutionality of United States action in Indochina); Delaware v. New York, 385 U.S. 895 (1966) (constitutionality of electoral college under one-man, one-vote rule).

[Footnote 1058] Wyoming v. Oklahoma, 112 S.Ct. 789, 798-799 (1982). The principles are the same whether the Court's jurisdiction is exclusive or concurrent. Texas v. New Mexico, 462 U.S. 554 (1983); California v. West Virginia, 454 U.S. 1027 (1981); Arizona v. New Mexico, 425 U.S. 794 (1976).

[Footnote 1059] 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), reprinted in Hart & Wechsler, op. cit., n.250, 393.

[Footnote 1060] 3 Dall. (3 U.S) 321 (1796).

[Footnote 1061] Judiciary Act of 1789, Sec. 22, 1 Stat. 84.

[Footnote 1062] 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., 326-327. 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).

[Footnote 1063] 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, 4 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).

[Footnote 1064] Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847) (case held nonreviewable because minimum jurisdictional amount not alleged).

[Footnote 1065] 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.)

[Footnote 1066]   73 U.S. (6 Wall.) 318 (1868). That Congress' 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 (New York: 1971), 493-495. McCardle is fully reviewed in id., 433-514.

[Footnote 1067] By the Act of February 5, 1867, Sec. 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 Sec. 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.

[Footnote 1068] 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., 513.

[Footnote 1069] Id., 514.

[Footnote 1070] Thus, see Justice Frankfurter's remarks in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1948) (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' 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, op. cit., n. 12, 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).

[Footnote 1071] Supra, pp.597-598, 599-600.

[Footnote 1072] Article III, Sec. 1, 2.

[Footnote 1073] 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, n.134; infra, n.1098.

[Footnote 1074] 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).

[Footnote 1075]   4 U.S. (4 Dall.) 8 (1799).

[Footnote 1076] "''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.

[Footnote 1077] Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799).

[Footnote 1078] Ibid.

[Footnote 1079] 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.''

[Footnote 1080] United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812). Justice Johnson continued: ''All other Courts [beside 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).

[Footnote 1081]   44 U.S. (3 How.) 236 (1845).

[Footnote 1082] Id., 244-245. 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., 264.

[Footnote 1083] Supra, n.1076.

[Footnote 1084]   49 U.S. (8 How.) 441 (1850).

[Footnote 1085] E.g., Kline v. Burke Construction 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 Fruit Co. v. Henderson, 170 U.S. 511, 513 -521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall,) 247, 251 -252 (1868).

[Footnote 1086] 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, Sec. 1, to 'ordain and establish' inferior federal tribunals.'' See also Palmore v. United States, 411 U.S. 389, 400 -402 (1973); Swain v. Pressley, 430 U.S. 372 (1977). And see Taylor v. St. Vincent's Hosp., 369 F. Supp. 948 (D. Mont. 1973), affd., 523 F.2d 75 (9th Cir.), cert. den., 424 U.S. 948 (1976).

[Footnote 1087] 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).

[Footnote 1088] The Act of March 2, 1867, 10, 14 Stat. 475, as amended, now 26 U.S.C. Sec. 7421 (federal taxes): Act of August 21, 1937, 50 Stat. 738, 28 U.S.C. Sec. 1341 (state taxes). See also Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. Sec. 1342 (state rate-making).

[Footnote 1089] 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).

[Footnote 1090] F. Frankfurter & I. Greene, The Labor Injunction (New York: 1930).

[Footnote 1091] 47 Stat. 70 (1932), 29 U.S.C. Sec. Sec. 101-115.

[Footnote 1092] 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.''

[Footnote 1093] E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30 (1957); Boys Market v. Retail Clerks Union, 398 U.S. 235 (1970).

[Footnote 1094] 56 Stat. 23 (1942).

[Footnote 1095]   319 U.S. 182 (1943).

[Footnote 1096]   321 U.S. 414 (1944).

[Footnote 1097] Id., 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., 289 (Justice Powell concurring). See also Harrison v. PPG Industries, 446 U.S. 578 (1980), and id., 594 (Justice Powell concurring).

[Footnote 1098] 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., 1569; Redish, Text, Structure, and Common Sense in the Interpretation of Article III, id., 1633; and a response by Amar, id., 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, supra, n.1074.

[Footnote 1099] 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.

[Footnote 1100] 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).

[Footnote 1101] An extraordinary amount of writing has been addressed to the issue, only a fraction of which is touched on here. See Hart & Wechsler, op. cit., n.250, 362-424.

[Footnote 1102] 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., 611-615 (concurring).

[Footnote 1103]   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).

[Footnote 1104] Article I, Sec. 9, cl. 2.

[Footnote 1105] Ex parte McCardle, 74 U.S. (7 Wall,) 506, 515 (1869). A restrained reading of McCardle is strongly suggested by Felker v. Turpin, 116 S. Ct. 2333 (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 orsuccessive habeas petitions. Pub. L. 104-132, Sec. 106, 110 Stat. 1214, 1220, amending 28 U.S.C. Sec. 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.

[Footnote 1106]   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.

[Footnote 1107] Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 966 (D.C.Cir. 1949), revd. 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., 567-568, while noting that Congress' ''authority is not, of course, unlimited.'' Id., 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. . . .''

[Footnote 1108]   80 U.S. (13 Wall.) 128 (1872). See 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. 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 Armstron v. United States, 80 U.S. (13 Wall.) 154 (1872), as in fact a judicial invalidation of a jurisdictional limitation. Young, id., 1222-1223 n. 179.

[Footnote 1109] Congress by the Act of July 17, 1862, Sec. Sec. 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, Sec. 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).

[Footnote 1110] United States v. Klein, 80 U.S. (13 Wall.) 128, 145 -146 (1872).

[Footnote 1111] Id., 147.

[Footnote 1112] Id., 146.

[Footnote 1113] Id., 147. For an extensive discussion of Klein, see United States v. Sioux Nation, 448 U.S. 371, 391 -405 (1980), and id., 424, 427- 434 (Justice Rehnquist dissenting). See also Pope v. United States, 323 U.S. 1, 8 -9 (1944); Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962) (Justice Harlan). In Robertson v. Seattle Audubon Society, 112 S.Ct. 1407 (1992), the 9th Circuit had held unconstitutional under Klein a statute that it construed to deny the federal courts power to construe the law, but the Supreme Court held that Congress had changed the law that the courts were to apply. The Court declined to consider whether Klein was properly to be read as voiding a law ''because it directed decisions in pending cases without amending any law.'' Id., 1414.

[Footnote 1114] United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872).

[Footnote 1115]   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 Yard Co. v. United States, 298 U.S. 38 (1936).

[Footnote 1116] Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).

[Footnote 1117]   285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented.

[Footnote 1118] Id., 56, 60, 64.

[Footnote 1119] See Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76 -87 (1982) (plurality opinion), and id., 100-103, 109-111 (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., 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 -579 (1968); Agosto v. INS, 436 U.S. 748, 753 (1978); United States v. Raddatz, 447 U.S. 667, 682 -684 (1980), and id., 707-712 (Justice Marshall dissenting).

[Footnote 1120] 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).

[Footnote 1121] Williams v. Rhodes, 393 U.S. 23, 29 (1968) (opinion of the Court.) The elder Justice Harlan perhaps had the same thought in mind when he said that, with regard to Congress' 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 Constitution.'' United States v. Bitty, 208 U.S. 393, 399 -400 (1908).

[Footnote 1122] 52 Stat. 1060, 29 U.S.C. Sec. 201.

[Footnote 1123] Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (2d Cir.), cert. den. 335 U.S. 887 (1948) (Judge Chase). See also Seese v. Bethlehem Steel Co., 168 F. 2d 58, 65 (4th Cir. 1948) (Chief Judge Parker). For recent dicta, see Johnson v. Robison, 415 U.S. 361, 366 -367 (1974); Weinberger v. Salfi, 422 U.S. 749, 761 -762 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201 -202, 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., 611-615 (Justice Scalia dissenting). Note the relevance of United States v. Mendoza-Lopez, 481 U.S. 828 (1987).

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