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The Theory of Plenary Congressional Control

POWER OF CONGRESS TO CONTROL THE FEDERAL COURTS

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.1100 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,1101 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.1102 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.”1103 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.”

1100 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, supra.

1101 3 U.S. (3 Dall.) 321 (1796).

1102 Judiciary Act of 1789, § 22, 1 Stat. 84.

1103 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. at 326-27. 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).

“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.”1104 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.”1105 In order for a case to come within its appellate jurisdiction, the Court has said, “two things must concur: the Constitution 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.”1106

This congressional power, conferred by the language of Article III, § 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,1107 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.1108 Although the Court had already heard argument on the merits, it then dismissed for want of jurisdiction.1109 “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.”

1104 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, 8 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).

1105 Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847) (case held nonreviewable because minimum jurisdictional amount not alleged).

1106 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.)

1107 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 1864-88 493-495 (1971). McCardle is fully reviewed at pp. 433-514.

1108 By the Act of February 5, 1867, § 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 § 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.

1109 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. at 513.

“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.”1110 Although McCardle grew out of the stresses of Reconstruction, the principle there applied has been similarly affirmed and applied in later cases.1111

1110 74 U.S. At 514.

1111 Thus, see Justice Frankfurter’s remarks in National Mutual Ins. Co. v. Tide-water 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, supra at 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).

Jurisdiction of the Inferior Federal Courts.—The Framers, as we have seen,1112 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.”1113 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,1114 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.1115 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.

1112 Supra, “One Supreme Court” and “Inferior Courts”.

1113 Article III, § 1, cl. 2.

1114 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 and infra.

1115 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).

Thus, in Turner v. Bank of North America,1116 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 § 11 of the Judiciary Act of 1789.1117 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 doubt1118 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.”1119 Applying § 11, the Court held that the circuit court had lacked jurisdiction.

Chief Justice Marshall himself soon made similar assertions,1120 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.”1121 In Cary v. Curtis,1122 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.”1123 Five years later, the validity of the assignee clause of the Judiciary Act of 17891124 was placed in issue in Sheldon v. Sill,1125 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,1126 and has been quite recently applied.1127

1116 4 U.S. (4 Dall.) 8 (1799).

1117 “[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.

1118 Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799).

1119 4 U.S. at 10.

1120 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.”

1121 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).

1122 44 U.S. (3 How.) 236 (1845).

1123 44 U.S. at 244-45. 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. at 264.

1124 Supra.

1125 49 U.S. (8 How.) 441 (1850).

1126 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 Tropical Fruit Co. v. Henderson, 170 U.S. 511, 513-521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 251-252 (1868).

1127 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, § 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. denied, 424 U.S. 948 (1976).

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.1128 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.1129 Though the courts have variously interpreted these restrictions,1130 they have not denied the power to impose them.

1128 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).

1129 The Act of March 2, 1867, 10, 14 Stat. 475, as amended, now 26 U.S.C. § 7421 (federal taxes): Act of August 21, 1937, 50 Stat. 738, 28 U.S.C. § 1341 (state taxes). See also Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 1342 (state rate-making).

1130 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).

Reacting to judicial abuse of injunctions in labor disputes,1131 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.1132 The Court seemingly experienced no difficulty upholding the Act,1133 and it has liberally applied it through the years.1134

Congress’ power to confer, withhold, and restrict jurisdiction is clearly revealed in the Emergency Price Control Act of 19421135 and in the cases arising from it. Fearful that the price control program 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 constitutionality of the Act was sustained in Lockerty v. Phillips.1136 In Yakus v. United States,1137 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,1138 Chief Justice Stone for the Court declared that the provision presented no novel constitutional issue.

1131 F. FRANKFURTER & I. GREENE, THE LABOR INJUNCTION (1930).

1132 47 Stat. 70 (1932), 29 U.S.C. §§ 101-115.

1133 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.”

1134 E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); Brotherhood of Railroad Trainmen v. Chicago River & I. R.R., 353 U.S. 30 (1957); Boys Market v. Retail Clerks Union, 398 U.S. 235 (1970).

1135 56 Stat. 23 (1942).

1136 319 U.S. 182 (1943).

1137 321 U.S. 414 (1944).

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Last modified: June 9, 2014