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Congress's Article Iii Power and the Process Of 42738-nyu_95-6 Sheet No. 92 Side B 12/10/2020 14:19:35 \\jciprod01\productn\N\NYU\95-6\NYU604.txt unknown Seq: 1 9-DEC-20 16:52 CONGRESS’S ARTICLE III POWER AND THE PROCESS OF CONSTITUTIONAL CHANGE CHRISTOPHER JON SPRIGMAN* Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “strip- ping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that is how the power has histori- cally been understood. Is Congress’s power to remove the jurisdiction of federal courts in effect a legisla- tive power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which the Supreme Court has never spoken definitively. In this Article I argue that Congress, working through the ordinary legislative process, may remove the jurisdiction of federal and even state courts to hear cases involving particular questions of federal law, including cases that raise questions under the Federal Constitution. Understood this way, the implications of Con- gress’s Article III power are profound. Congress may prescribe, by ordinary legis- lation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation. To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. Compared with judicial review, the polit- ical constraint is, of course, less formal and predictable. But that does not mean that 42738-nyu_95-6 Sheet No. 92 Side B 12/10/2020 14:19:35 the political constraint is weak. A successful exercise of its Article III power will require a majority in Congress, and, in most instances, a President, who agree both on the substantive policy at issue and on the political viability of overriding the * Copyright 2020 by Christopher Jon Sprigman, Professor of Law, New York University School of Law, and Co-Director, Engelberg Center on Innovation Law and Policy. The author thanks Andrew Baker, Will Baude, Stefan Bechtold, Chris Buccafusco, Barry Friedman, David Golove, Abner Greene, Daniel Hemel, Rick Hills, Jody Kraus, Troy McKenzie, Michael Morley, Rick Pildes, Gabe Roth, Eric Segall, Siva Vaidhyanathan, and Evan Zoldan for comments and conversations over a period of many years that con- tributed to the development of this Article. The author also thanks William Weinberg, Charlotte Jane Allyn, Neil Chitrao, Stephen Gray, and Robert Barton for excellent research assistance, and the Filomen D’Agostino and Max E. Greenberg Research Fund for grants that supported this work, to Misha Boutilier for helpful comments regarding the Canadian Charter’s Notwithstanding Clause, and to Sasha Boutilier, Scott Woods, and their fellow editors at the New York University Law Review for their careful, perceptive, patient editing of this Article. The people and institutions acknowledged should not be taken to agree with any of the arguments made here. 1778 42738-nyu_95-6 Sheet No. 93 Side A 12/10/2020 14:19:35 \\jciprod01\productn\N\NYU\95-6\NYU604.txt unknown Seq: 2 9-DEC-20 16:52 December 2020] CONGRESS’S ARTICLE III POWER 1779 public expectation that Congress should face a judicial check. In such instances, we should welcome the exercise of Congress’s Article III power. In the push-and-pull between judicially-enforced constitutional rules and the desires of current demo- cratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review. INTRODUCTION ................................................. 1779 R I. UNDERSTANDING CONGRESS’S ARTICLE III POWER TO LIMIT JUDICIAL REVIEW ................................ 1791 R A. The Literature on Congress’s Article III Power ..... 1791 R B. Potential “Internal” Limitations on Congress’s Article III Power .................................... 1801 R 1. Lower Federal Courts: Text and History ........ 1802 R 2. Lower Federal Courts: Supreme Court Precedent ....................................... 1803 R 3. “Exceptions” and the Supreme Court’s Appellate Jurisdiction ..................................... 1808 R 4. Limitations Based in the “Essential Role” of the Supreme Court .................................. 1811 R C. External Limitations on Congress’s Article III Power ............................................... 1818 R 1. “Unqualified” vs. “Qualified” Judicial Supremacy ...................................... 1818 R 2. Post-McCardle Precedent ....................... 1822 R 3. The “Klein Principle” and Boumediene ........ 1829 R D. Institutional Limits of State Court Enforcement of the Federal Constitution ............................. 1831 R II. CONGRESS’S ARTICLE III POWER AS A PATH TO 42738-nyu_95-6 Sheet No. 93 Side A 12/10/2020 14:19:35 QUALIFIED JUDICIAL SUPREMACY ...................... 1836 R A. The Concept of Qualified Judicial Supremacy ....... 1836 R B. Qualified Judicial Supremacy and the Canadian “Notwithstanding Clause” ........................... 1843 R C. The Prospects for an American Notwithstanding Clause .............................................. 1852 R CONCLUSION ................................................... 1859 R INTRODUCTION In Marbury v. Madison,1 Chief Justice John Marshall pronounced that “[i]t is emphatically the province and duty of the judicial depart- ment to say what the law is.”2 Many have noted the flaws in Marshall’s 1 5 U.S. (1 Cranch) 137 (1803). 2 Id. at 177. 42738-nyu_95-6 Sheet No. 93 Side B 12/10/2020 14:19:35 \\jciprod01\productn\N\NYU\95-6\NYU604.txt unknown Seq: 3 9-DEC-20 16:52 1780 NEW YORK UNIVERSITY LAW REVIEW [Vol. 95:1778 opinion that undermine his assertion of judicial power.3 Nonetheless, over the past two centuries, Americans have largely learned to accept the view that federal courts are supreme when they “say what the law is.”4 Yet even as judicial supremacy has become commonplace, a fun- damental question persists: Is it the province and duty of the courts to say what the law is even where the law says that they should not? This question is made concrete by text in Article III of the U.S. Constitution which appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “[e]xceptions” to the Supreme Court’s appellate jurisdiction.5 Article III also gives Congress discretion whether to “ordain and establish” lower federal courts.6 Congress’s power to create or abolish lower federal courts has long been pre- sumed to include the power to define (and limit) their jurisdiction. Consistent with that understanding, Congress has, from the beginning, imposed limits on the jurisdiction of lower courts.7 These parts of Article III, taken together, add up to something potentially profound: they appear to give to Congress a means to limit 3 Flaws which perhaps detract from the opinion’s force to the degree that, as William Van Alstyne intimated in his classic article on Marbury, “it should be thought surprising that Marbury v. Madison could sensibly be considered by anyone as authoritatively establishing the doctrine of federal substantive judicial supremacy . .” William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 38; see also CHRISTOPHER WOLFE, THE RISE OF MODERN JUDICIAL REVIEW: FROM CONSTITUTIONAL INTERPRETATION TO JUDGE-MADE LAW 89 (1986) (disagreeing with Marshall’s argument that the power of courts to invalidate unconstitutional laws is a necessary implication of a written constitution and asserting “[t]here is no necessary problem with judges giving effect 42738-nyu_95-6 Sheet No. 93 Side B 12/10/2020 14:19:35 to unconstitutional laws, any more than with presidents enforcing unconstitutional laws passed over their vetos”). For a contrary view, see Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 MICH. L. REV. 2706, 2707 (2003): “The idea that courts possess an independent power and duty to interpret the law, and . must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time [of] Marbury . more than a dozen years after the Constitution was ratified.” 4 Marbury, 5 U.S. at 177. One measure of acceptance, though a weak one given the difficulties Article V of the Constitution places in the way, is that only three amendments to the Constitution have been adopted in response to specific decisions of the Supreme Court. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), superseded by constitutional amendment, U.S. CONST. amend. XI; Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by constitutional amendment, U.S. CONST. amend. XIII; Pollock v. Farmer’s Loan & Trust Co., 157 U.S. 429 (1895), superseded by constitutional amendment, U.S. CONST. amend. XVI. 5 U.S. CONST. art. III, § 2, cl. 2; see also U.S. CONST. art. I, § 8, cl. 9 (“The Congress shall have Power . [t]o constitute Tribunals inferior to the supreme Court . .”). 6 U.S. CONST. art. III, § 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.”); see also U.S. CONST. art. I, § 8, cl. 9 (“The Congress shall have Power . [t]o constitute Tribunals inferior to the supreme Court . .”). 7 See infra text accompanying notes 99–105. 42738-nyu_95-6 Sheet No. 94 Side A 12/10/2020 14:19:35 \\jciprod01\productn\N\NYU\95-6\NYU604.txt unknown Seq: 4 9-DEC-20 16:52 December 2020] CONGRESS’S ARTICLE III POWER 1781 the scope of judicial review—to take back from the federal courts, in specific cases, the power to say what the law is.
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