Congress can pass legislation that prevents the US Supreme Court from exercising appellate jurisdiction over certain Executive and Legislative actions, either in whole or in part. This is known as jurisdiction stripping, or curtailment of jurisdiction. Congress cannot pass legislation that interferes with the Supreme Court's original jurisdiction, as granted by the constitution, nor can they concurrently remove jurisdiction from the Supreme Court and inferior courts, leaving no forum to challenge the legislation (although they may specify which court or courts will have original and appellate jurisdiction in such cases, as they did with Guantanamo detainees).
The power to assign jurisdiction derives from three constitutional sources:
Article I, Section 8, Clause 19
"...To constitute tribunals inferior to the Supreme Court;"
Article III, Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
Article III, Section 2
"...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."
The Court acknowledges this check on judicial power as constitutionally valid. Felix Frankfurter conceded in his dissenting opinion in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 US 582 (1949):
"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 [under consideration]."
Frankfurter's last point is grounded in historical fact, as Congress curtailed the Supreme Court's jurisdiction over Ex Parte McCardle, 74 US 506 (1869) before the justices could make a decision.
Critics of jurisdiction stripping, such as the American Judicature Society, believe Congress sometimes employs this method in an attempt to change constitutional law "without complying with the procedural rules for amending the Constitution," due to the difficulty involved in ratifying amendments. Congress may curtail jurisdiction in reaction to a Supreme Court decision that was particularly unpopular with Congress, or take preemptive action if they suspect the Court would overturn the legislation, if challenged. The American Judicature Society believes abuse of this power threatens the independence of the Judicial branch of government.
Examples of jurisdiction stripping include:
•The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (denied federal courts the right to challenge decisions the INS makes regarding asylum-granting).
•The Prison Litigation Reform Act of 1996 (PLRA) (restricts remedies to civil litigation relating to prison conditions)
•The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (limits the number of habeas petitions state prisoners can file in federal court). |
