proposed to the States a constitutional amendment to overturn an anticipated court decision that had not yet occurred?

Mr. REDISH. Nothing occurs to me off the top of my head. That has not yet occurred?

Mr. NADLER. Has not at the time it was proposed.

Mr. HOSTETTLER. Would the gentleman yield? Such as the Bill of Rights?

Mr. REDISH. Well, I am not sure that was designed to fend off a particular court decision. It was a broad-based, categorical, normative directive as to what the rights should be; but I don't think it was grounded in any concern that otherwise courts would decide something that Congress did not like.

Mr. NADLER. I thank the gentleman.

Mr. CHABOT. I think that is a very good response. Without objection, Members will have 5 days to include additional responses.

I want to thank the panel. I thought this was excellent testimony on behalf of all four of the witnesses. I want to thank the Members for being here in such high numbers.

If there is no further business to come before the Committee, we are adjourned. Thank you.

[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]

APPENDIX

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF CHARLES E. RICE

The subject of this hearing is the power of Congress over the jurisdiction of lower federal courts and its power over the appellate jurisdiction of the Supreme Court. This issue arises in the context of H.R. 3313, which provides:

'No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of Title 1.'1

This statement, however, offers a general analysis of the power of Congress to remove classes of cases from federal court jurisdiction rather than a specific and detailed analysis of H.R. 3313.

THE POWER OF CONGRESS OVER THE JURISDICTION OF LOWER FEDERAL COURTS

The Constitution [Art III, Sec. 1) provides, "The juridical 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." The Constitution itself did not create the lower federal courts. Instead it left to Congress the decision whether to create such courts and, if Congress chose to create them, how much of the jurisdiction encompassed within the federal judicial power it ought to confer upon them. Congress need not have created such lower courts at all. Having created them, it need not vest in them jurisdiction to decide the full range of cases within the federal judicial power. For instance, until 1875, the lower federal courts had no general jurisdiction in cases arising under the Constitution or laws of the United States. 2 Today, the jurisdiction of the lower federal courts is limited in some respects by the requirement of jurisdictional amount and in other respects as to the classes of cases in which they are empowered to exercise jurisdiction. The Norris La Guardia Act, for example, withdrew from the lower federal courts jurisdiction to issue injunctions in labor disputes. The constitutionality of the Norris La Guardia Act was sustained by the Supreme Court in Lauf v. E. G. Shinner and Co. 3

In an extensive dictum in Palmore v. U.S.4 the Supreme Court summarized the status of the lower federal courts under Article III:

Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the power is vested "in such interior Courts as the Congress may from time to time ordain and establish." The decision with respect to inferior federal courts, as well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Art. III courts to hear and decide cases within the juridical power of the United States, including those criminal cases arising under the laws of the United States. Nor, if inferior federal courts were created, was it required to invest them with all the jurisdiction it was authorized to bestow under Art III. “[T]he juridical power of the United States. . . is (except in enumerated instances, applicable exclu

1108th Cong., 1st Sess.; Section 1738c, of Title 28, is the Defense of Marriage Act; Section 7 of Title 1, of the Constitution is the Full Faith and Credit Clause.

2 See Hart and Wechaler, The Federal Courts and the Federal System ()1953), 727–33. 3303 U.S. 323, 330 (1938).

4411 U.S. 389, 400-402 (1973).

(89)

sively 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 the tribunals (inferior to the Supreme Court) . . . 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." Cary v. Curtis, 3 How 236, 245, 11 L.Ed. 576 (1845). [9] Congress plainly understood this, for until 1875 Congress refrained from providing the lower federal courts with general federalquestion jurisdiction. Until that time, the state courts provided the only forum for vindicating many important federal claims. Even then, with exceptions, the state courts remained the sole forum for the trial of federal cases not involving the required jurisdictional amount, and for the most part retained concurrent jurisdiction of federal claims properly within the jurisdiction of the lower federal

courts.

9. This was the view of the Court prior to Martin v. Hunter's Lessee, 1 Wheat 304, 4 L.Ed. 97 (1816). Turner v. Bank of North America, 4 Dall 8, 1 L.Ed.718, (1799); United States v. Hudson, 7 Cranch 32, 3 L.Ed.259 (1812). And the contrary statements in Hunter's Lessee, supra, at 327– 339, 4 L.Ed. 97, did not survive later cases. See for example, in addition to Cary v. Curtis, 3 How 236, 11 L.Ed. 576 (1845), quoted in the text, Rhode Island v. Massachusetts, 12 Pet 657, 721-722, 9 L.Ed. 1233 (1838); Sheldon v. Sill, 8 How 441, 12 L.Ed. 1147 (1850); Case of the Sewing Machine Companies, 18 Wall 553, 577-578, 21 L.Ed. 914 (1874); Kline v. Burke Construction Co., 260 U.S. 226, 233–234, 67 L.Ed. 226, 43 S.Ct. 79, 24 ALR 1077 (1922).

While various theories have been advanced to argue for restrictions on Congress' power over the jurisdiction of the lower federal courts, none of them is supported by the Supreme Court. Not only does the greater discretion to create, or not, the federal courts themselves include the lesser power to define their jurisdiction, the evident intent of the framers was to vest in the Congress the capacity to make the prudential judgment as to which courts, state or federal, should decide constitutional cases on the lower and intermediate levels.

A statute withdrawing a particular class of cases from the lower federal courts or forbidding those courts to issue specified types of order, would clearly be within the constitutional power of Congress to enact.

THE POWER OF CONGRESS OVER THE APPELLATE JURISDICTION OF THE SUPREME COURT

The Exceptions Clause of Article III, Section 2, provides that "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 was intended, according to Alexander Hamilton, to give "the national legislature . . . ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove" the "inconveniences" which might arise from the powers given in the Constitution to the federal judiciary. 5 There was evidently concern in the Constitutional Convention and in some of the ratifying conventions that the Supreme Court would exercise appellate power to reverse jury verdicts on issues of fact. Nevertheless, the language of Article III, Section 2, explicitly give the Supreme Court "appellate Jurisdiction, both as to Law and Fact." And it is evident that the power of Congress to make exceptions to that appellate jurisdiction extends to the Court's power to review questions of law as well as questions of fact. As Hamilton observed in The Federalist, no. 81, "the Supreme Court will possess an appellate jurisdiction both as to law and fact, in all cases referred to [the subordinate tribunals], both subject to any exceptions and regulations which may be thought advisable." 6

This power of Congress was so broadly interpreted that a specific authorization by Congress of appellate jurisdiction was construed by the Supreme Court to imply that such jurisdiction was excluded in all other cases. This "negative pregnant" doctrine was enunciated by Chief Justice John Marshall in U.S. v. More, in which the Court held that it had no criminal appellate jurisdiction because none had been expressly stated by Congress. Marshall, speaking for the Court, said:

an affirmative description of its powers must be understood as a regulation, under the Constitution, prohibiting the exercise of other powers than those described. 7

It is interesting to note that no criminal cases were appealable to the Supreme Court until 1891, simply because until then Congress had not specified that they could be so appealed. The only way a criminal case could be brought to the Supreme Court was "by certificate of division of opinion" in the Circuit Court "upon specific questions of law."8

9

In 1810, in Durousseau v. U.S., Chief Justice Marshall emphasized that the Court is bound even by implied exceptions to its appellate jurisdiction, so that, in effect, it can exercise it only where expressly granted by Congress." The "first legislature of the union," he said, "have not declared, that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative in the exercise of such appellate power as is not comprehended within it." When Chief Justice Taney spoke to the issue in Barry v. Mercein, he said, "By the constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes." 10

Prior to 1868, the Supreme Court never had to decide the validity of an act of Congress making a specific exception to its appellate jurisdiction. But when William H. McCardle, a Mississippi editor, was imprisoned by the federal reconstruction authorities on account of statements he had made, he sought a writ of habeas corpus from the federal circuit court, asking that court to rule that his detention was invalid. When this petition was denied he appealed to the Supreme Court under a statute specifically permitting such appeals. After the Supreme Court heard arguments on the case and while the Court was deliberating, Congress enacted a statute repealing that part of the prior statute which had given the Supreme Court jurisdiction to hear such appeals from the circuit court. The Court, in confronting for the first time the issue of the positive congressional exception to the appellate jurisdiction, dismissed the petition for what of jurisdiction, even though the case had already been argued and was before the Court. "We are not at liberty to inquire into the motives of the legislature," said the Court. "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. without jurisdiction the court cannot proceed at all in any case. 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 case. And this is not less clear upon authority than upon principle.” 11

12

It is true that the statute upheld in McCardle did not bar the Supreme Court from reviewing all habeas corpus cases. Rather, it only barred review sought under the 1867 statute which had provided an avenue of review of such cases from the circuit court. The Supreme Court retained the habeas corpus review power which had been given it by the Judiciary Act of 1789 and which Congress had chosen not to withdraw. Later in 1868, the Court applied this distinction in Ex parte Yerger, where the Court held that the 1868 statute left untouched the Supreme Court's power to issue its own writ of habeas corpus to a lower court as provided in the Judiciary Act of 1789. But neither in McCardle nor in Yerger is there any indication whatever that the Court would not have upheld an act withdrawing appellate jurisdiction in all habeas corpus cases from the Court.

Four years later, in U.S. v. Klein, 13 the Court had occasion to spell out one important limitation of the Exceptions Clause. Klein is the only Supreme Court decision ever to strike down a statute enacted under the Exceptions Clause. The claimant in Klein, who had been a Confederate, sued in the Court of Claims to recover the proceeds from the sale of his property seized and sold by the Union forces. He had received a full presidential pardon for his Confederate activities, and the Court of Claims ruled in his favor for that reason. If he had not received a pardon, the governing statute would have prevented his recovery. While the appeal of his case was

77 U.S. (3 Cranch) 159, 172 (1805).

8 U.S. v. Sanges, 144 U.S. 310, 319 (1892); see also U.S. v. Cross, 145 U.S. 571 (1892); Ex parte Bigelow, 113 U.S. 328, 329 (1885).

910 U.S. (6 Cranch) 307, 314 (1810).

10 46 U.S. (5 How.) 103, 119 (1847).

11 Ex parte McCurdle, 74 U.S. (7 Wall.) 506, 513–14 (1868).

12 75 U.S. (8 Wall.) 85 (1868).

13 80 U.S. (13 Wall.) 128, 145–46 (1872).

pending before the Supreme Court, a state was enacted which provided that, whenever it appears that a judgment of the Court of Claims has been founded on such presidential pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case. The statute further declared that every pardon granted to a suitor in the Court of Claims which recited that he has been guilty of any act of rebellion or disloyalty, shall, if accepted by him in writing without disclaimer of those recitals, be taken as conclusive evidence of such act of rebellion or disloyalty and his suit shall be dismissed. While declaring the statute unconstitutional, the Supreme Court expressly reiterated that Congress does have the power to deny appellate jurisdiction "in a particular class of cases":

Undoubtedly the legislature has complete control over the organization and existence of that court and may confer or withhold the right to appeal from its decisions. And if this act did nothing more, it would be our duty to give it effect. If it simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make "such exceptions from the appellate jurisdiction" as should seem to it expedient. 14

The statute in Klein attempted to dictate to the Court how and by what processes it should decide the outcome of a particular class of cases under the guise of limiting it jurisdiction. The Court lost jurisdiction only when the Court of Claims judgment was founded on a particular type of evidence, that is, a pardon. And the statute further prescribed that the effect of the pardon would be such that the recitals in the pardon of acts of rebellion and disloyalty would be conclusive proof of those acts. "What is this," said the Court, "but to prescribe a rule for the decision of a cause in a particular way?" It is difficult to imagine a more flagrant intrusion upon the judicial process than this effort to dictate the rules to be used in deciding cases. Moreover, the statute in Klein intruded upon the President's pardoning power by attempting "to deny to pardons granted by the President the effect which this court had adjudged them to have." In these major respects the statute involved in Klein was wholly different from a statute simply withdrawing appellate jurisdiction over a certain class of cases.

Since the Klein case, the Supreme Court has not had occasion to define further any limits to the Exceptions Clause. In The "Francis Wright," 15 the Court said that what the "appellate powers" of the Supreme Court "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 re-examination and review, while others are not." Chief Justice Waite, in his opinion for the Court in The "Francis Wright" referred to "the rule, which has always been acted on since, that while 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." 16 Several statements of individual justices in the intervening years reinforce this conclusion. Thus Justice Frankfurter, in his dissenting opinion in National Insurance Co. v. Tidewater Co. 17 Noted that "Congress need not establish inferior courts; Congress need not grant the full scope of jurisdiction which it is empowered to vest in them; 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. Ex parte McCardle, 7 Wall. 506." 18

In summary, the holdings of the Supreme Court and the statements of various individual justices compel the conclusion that Congress clearly has power under the Exceptions Clause to withdraw appellate jurisdiction from the Supreme Court in particular classes of cases. Indeed, this power is so strong that an exception will be implied in cases where Congress has not specifically "granted" appellate jurisdiction to the Court.

It will be useful here to mention some arguments that have been advanced against the use of the exception power by Congress. It has been urged, as Professor

14 Emphasis added.

15 105 U.S. 381, 386 (1881).

16 105 U.S. at 385 (emphasis added).

17 337 U.S. 582, 655 (1949).

18 See also the opinion of Justice Harlan in Glidden v. Zdanok, 370 U.S. 567-68 (1962); and see the concurring opinion of Justice Douglas in Flast v. Cohen, 392 U.S. 83, 109 (1968), stating that "As respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Art. III. See Ex parte McCardle, 7 Wall. 506."