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Congress Gave and Congress Hath Taken Away:1 Jurisdiction Withdrawal and the Constitution Travis Christopher Barham

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Congress Gave and Congress Hath Taken Away:1 Jurisdiction Withdrawal and the Constitution Travis Christopher Barham Washington and Lee Law Review Volume 62 | Issue 3 Article 7 Summer 6-1-2005 Congress Gave and Congress Hath Taken Away:1 Jurisdiction Withdrawal and the Constitution Travis Christopher Barham Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons, and the Jurisdiction Commons Recommended Citation Travis Christopher Barham, Congress Gave and Congress Hath Taken Away:1 Jurisdiction Withdrawal and the Constitution, 62 Wash. & Lee L. Rev. 1139 (2005), https://scholarlycommons.law.wlu.edu/ wlulr/vol62/iss3/7 This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Congress Gave and Congress Hath Taken Away:1 Jurisdiction Withdrawal and the Constitution Travis Christopher Barham* Table of Contents I. Introduction ................................................................................ 114 1 II. Current Legislation ..................................................................... 1143 A. The Marriage Protection Act of 2005-H.R. 1100 .............. 1144 B. The Constitution Restoration Act of 2005- H .R . 1070 & S. 520 ............................................................. 1145 C. The Pledge Protection Act of 2005- H .R . 2389 & S. 1046 ........................................................... 1146 III. Congress's Control of Federal Jurisdiction ................................. 1148 A. Constitutional Text-Article III ........................................... 1148 1. The Judicial Power-Article III, § 1 ............................. 1149 2. The Recipients of the Judicial Power- Article III, § 1................................................................ 1149 1. See Job 1:21 KJV ("[Tlhe LORD gave, and the LoRD hath taken away; blessed be the name of the LoRD .... "); see also Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 55 (D.D.C. 1973) (paraphrasing and applying Job 1:21 to Congress's control over federal jurisdiction). * Candidate for J.D., Washington & Lee University School of Law, 2006. B.S., B.A., Grove City College, 2002, 2003. I would like to thank Dr. Virginia C. Armstrong for suggesting this topic and reviewing drafts; Professors Joan M. Shaughnessy and Lewis H. LaRue for their helpful critiques; and Leah M. Boyd for her thorough and dedicated work as Note Editor. This Note-writing process confirmed that I am indebted to Dr. Charles W. Dunn both for the intense focus on writing that he brought to all of his classes and for his invaluable class on congressional procedure. I would also like to thank my siblings, Jennifer, Nathanael, Mary Elizabeth, Sarah, Joshua, Joanna, and Timothy, for their encouragement and prayers. My parents, Lt. Col. and Mrs. Travis P.G. Barham, Jr., USAF (Ret.), deserve a special word of thanks not only for their encouragement, advice, and prayers during this process, but also for the foundation they laid through home-schooling that made this Note possible. S.D.G. 1139 1140 62 WASH. &LEE L. REV 1139 (2005) 3. The Elements of the Judicial Power- Article III, § 2, cl. 1....................................................... 1150 4. The Organization of the Judicial Power- Article III, § 2, cl. 2 ....................................................... 1150 B. Foundational Principles .................................. 1152 1. Separation of Powers & Checks and Balances .............. 1153 2. Majority Rule & Legislative Preeminence .................... 1156 3. Judicial Skepticism ....................................................... 1159 a. Weaker than Congress ........................................... 1159 b. Weakest Branch ........... ........... 1161 c. Distrust of Judicial Discretion................................ 1163 d. Neither Guardian of Rights Nor Ultimate Arbiter of Constitution ............................ 1167 C. The Founding Fathers & The Exceptions Clause ................ 1170 D. Past Congressional Controls ................................................ 1174 1. The Judiciary Act of 1789 & Its Progeny ...................... 1174 2. 1930s .............................................................................1178 3. 1940s .............................................................................1179 4. 1960s .............................................................................1180 5. 1990s-2000s .................................................................1181 E. Federal Court Confirmation ................................................. 1183 1. Congress & The Supreme Court's Appellate Jurisdiction .................................................................... 1184 2. Congress & The Inferior Courts' Jurisdiction ............... 1189 3. Federal Courts & Federal Claims .................................. 1191 4. Federal Courts & Past Limitations ................................ 1192 IW. Common Constitutional Objections to Congress's Control ........ 1195 A. The Essential Function Theory ............................................ 1195 B. The Mandatory Jurisdiction Theory ..................................... 1200 C. Separation of Powers ........................................................... 1203 D. Judicial Independence .......................................................... 1206 E. The Bill of Rights ................................................................ 1208 F. Due Process & Equal Protection .......................................... 1211 G. Unprecedented Action ........................................................ 1216 V . C onclusion .................................................................................. 12 17 JURISDICTION WITHDRA WAL 1141 I. Introduction In the space of roughly two centuries, the Supreme Court has moved from the basement of the Senate to the crossfire of today's culture war.2 As judicial decisions address issues like "same-sex marriage," abortion, school prayer, affirmative action, pornography, illegal immigration, enemy combatants, the Ten Commandments, and the Pledge of Allegiance, both sides in these debates recognize that the courts have essentially become the last step in the legislative process.3 Last year Chief Justice Rehnquist commented on the increased criticism of the federal courts, especially the Supreme Court.4 The 2004 presidential campaign highlighted the deep divisions over the federal courts and their role.5 Both sides of the ideological spectrum recognize the judiciary's tremendous power. Justice William J. Brennan once stated, The Supreme Court has been, and is, called upon to solve many of the most fundamental issues confronting our democracy, including many upon which our society, consciously or unconsciously, is most deeply divided, and that arouse the deepest emotions. Their resolution, one way or the other, often rewrites our future history.6 Likewise, Justice Antonin Scalia observed, What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and 2. See Jonathan Rauch, State of the Union: BipolarDisorder, THE ATLANTIC MONTHLY, Jan./Feb. 2005, at 102, 102 (tracing the history and popular meaning of "culture war"). 3. See, e.g., ROBERT H. BoRK, COERCING VIRTUE: THE WORLDWIDE RULE OF JuDGEs 57- 59 (2003) (explaining the Court's influence on issues like free speech, public religious expression, radical feminism, and homosexuality); see also Paul Starr, Winning Cases, Losing Voters, N.Y. TIMES, Jan. 26, 2005, at A17 (attributing Democratic losses in 2004 to their strategy of pursuing their agenda in the courts). 4. See William Rehnquist, 2004 Year-End Report on the FederalJudiciary 4 (2005) (noting that criticism of judges "has dramatically increased" recently), available at http://www.supreme courtus.gov/publicinf0/year-end/2004year-endreport.pdf; David Davenport & Gordon Lloyd, A ProtestToo Far,WASH. TIMES, Jan. 19,2005, at A17 (linking criticism to fact that more people see that courts are "making policy on matters beyond their purview"). 5. See, e.g., Charlie Savage, Both Sides Say Court Future up to Voters, BOSTON GLOBE, July 28, 2004, at A21 (noting that to both sides Supreme Court nominees are the "most far- reaching prize" of the election); Tara Ross, JudicialNominations, THE AMERICAN ENTERPRISE ONLINE, at http://www.taemag.com/printVersion/print-article.asp?articleID=18183 (noting the importance ofjudicial nominees in the last election) (last visited May 10, 2005) (on file with the Washington and Lee Law Review). 6. PHYLLIS SCHLAFLY, THE SUPREMACISTS: THE TYRANNY OF JUDGES AND How TO STOP IT 9 (2004) (quoting Justice Brennan's speech at Park School, Baltimore, Md., on Nov. 21, 1982). 1142 62 WASH. &LEE L. REV. 1139 (2005) which our people have regarded as constitutional for 200 years, is in fact unconstitutional?... Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize. 7 So is the federal judiciary still Hamilton's "least dangerous branch,0 one that is constantly subject to encroachment, intimidation, and retaliation from the majoritarian branches?9 Or has it become Judge Roy Moore's "despotic branch,"' 0 one that has usurped legislative authority to
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