Extensions of Remarks

February 2, 1982 EXTENSIONS OF REMARKS 689 EXTENSIONS OF REMARKS RESOLUTION OF THE CONFER courts and, if enforced, how states may Guardia Act of 1932 5 and the Tax Injunc ENCE OF STATE CHIEF JUS properly act against federal officers; tion Act. 6 TICES E. The proposed statutes would render un Opponents of the proposed legislation certain how the state courts could declare a assert the exception cannot swallow up the federal law violative of the federal Constitu rule: 7 That the article Ill, section 1, delega tion and whether Congress would need to tion of "the judicial Power" to the Supreme HON. PETER W. RODINO, JR. wait for a majority of the state courts to so Court cannot be diminished, for example, to OF NEW JERSEY rule before conceding an act was unconstitu a limited right in the court to pass only on IN THE HOUSE OF REPRESENTATIVES tional; patent claims. 8 They rely on the language F. The added burden of litigation engen Tuesday, February 2, 1982 of several Supreme Court decisions starting dered by the proposed acts would seriously with United States v. Klein, 80 U.S. <13 e Mr. RODINO. Mr. Speaker, the add to the already heavy caseload in state Wall.> 128 <1872>. These opponents argue Conference of Chief Justices at their courts; the exceptions "must not be such as will de fifth midyear meeting in Williams Now, therefore, be it Resolved, That the stroy the essential role of the Supreme burg, Va., on January 30, 1982, adopt Conference of Chief Justices expresses its Court in the Constitutional Plan," 11 that de serious concerns relating to the above legis priving the Supreme Court of jurisdiction to ed an unusually strong and unanimous lation, approves the report of the Confer review the constitutionality of state enact resolution relating to the proposed ence's Subcommittee of the Committee on ments would nullify the supremacy clause, 10 legislation pending in both Houses of State-Federal Relations, and directs its offi and that the "exceptions clause" cannot be Congress to restrict the jurisdiction of cers to transmit that report, together with used to deprive the Supreme Court of appel the Federal courts. This occurred after this resolution, to appropriate members of late jurisdiction in cases involving funda a study by a subcommittee of the Congress. mental constitutional rights. 11 State-Federal Relations Committee of Adopted at the Midyear Meeting in Wil It is not the intent of this subcommittee the Conference. Every State was rep liamsburg, Virginia on January 30, 1982. nor the purpose of this report to explore resented when the vote occurred and the constitutionality of these congressional REPORT TO THE CONFERENCE OF CHIEF Jus efforts to nullify or contain the effect of Su there was no dissent. TICES ON PENDING FEDERAL LEGISLATION TO preme Court constitutional interpretations What follows is the resolution and DEPRIVE FEDERAL COURTS OF JURISDICTION involving the above issues. The published the subcommittee report and I com IN CERTAIN CONTROVERSIAL AREAS INVOLV efforts of qualified scholars and commenta mend it to all of my colleagues. ING QUESTIONS OF CONSTITUTIONAL LAW tors have illuminated the opposing views. 12 RESOLUTION I-RESOLUTION RELATING TO Pending in the United States Congress are Further, several state constitutions contain PROPOSED LEGISLATION TO RESTRICT THE approximately twenty bills that would strip language analogous to that in article III of JURISDICTION OF THE FEDERAL COURTS the federal courts, including the Supreme the United States Constitution, quoted Whereas, there are presently pending in Court, of substantive jurisdiction in certain above, and members of this Conference may the United States Congress approximately areas involving prayer in public schools and be confronted with issues involving the con twenty bills that would strip the federal buildings, abortion, school desegregation stitutionality of similar legislative measures and busing, and sex discrimination in the in their own courts.13 Nonetheless, this sub courts, including the United States Supreme 1 Court, of substantive jurisdiction in certain armed services. Several of these proposals cotnmittee would reject its assignment if it areas involving prayer in public schools and would prohibit Supreme Court review of failed to express its concerns relating to state court decisions within the defined these bills, and mark the potential fall-out buildings, abortion, school desegregation 2 and busing, and sex discrimination in the areas. as well as withdraw all jurisdiction that might accompany their enactment. armed services; and from the federal district courts. First, these proposed statutes give the ap Whereas, the Conference of Chief Jus Provisions of the United States Constitu pearance of proceeding from the premise tices, without regard to the merits of consti tion that are implicated directly in these that state court judges will not honor their tutional issues involved, expresses its con proposed measures are found in article III: oaths to obey the United States Constitu cern about the impact of these bills on state SECTION 1 tion, 14 nor their obligation to follow Su courts and views them as a hazardous exper The judicial Power of the United States, preme Court decisions interpreting and ap iment with the vulnerable fabric of the na shall be vested in one supreme Court, and is plying that constitution, thus breaking with tion's judicial systems, arriving at this posi such inferior Courts as the Congress may a 200 year practice and tradition. So viewed, tion for the following reasons, among from time to time ordain and establish. these efforts to transfer jurisdiction to the others: SECTION 2 state courts for these purposes neither en A. These proposed statutes give the ap hance the image of those institutions nor pearance of proceeding from the premise In all Cases affecting Ambassadors, other demonstrate confidence that state court public Ministers and Consuls, and those in 16 that state court judges will not honor their judges will do their duty. Changes in sub which a State shall be Party, the Supreme stantive constitutional law amounting to oath to obey the United State Constitution, Court shall have original Jurisdiction. In all nor their obligations to give full force to amendments should not be attempted by ex controlling Supreme Court precedents; the other cases before mentioned, the su cluding federal jurisdiction in the hope that preme Court shall have appellate Jurisdic state courts will give less than full force to B. If those proposed statutes are enacted, tion both as to Law and Fact, with such Ex the current holdings of those Supreme controlling Supreme Court precedents. The ceptions, and under such Regulations as the procedure that should be used for such Court decisions targeted by this legislation Congress shall make. will remain the unchangeable law of the amendments is provided in the constitution Those supporting these bills reason that itself. land, absent constitutional amendments, the withdrawal of jurisdiction is authorized beyond the reach of the United States Su by the article III, section 2, "exception" pro Second, when state court judges honor preme Court or state supreme courts to vision, a congressional power that they their oaths, the holdings of those Supreme alter or overrule; assert has been recognized in several Su Court decisions targeted by this legislation C. State court litigation constantly pre preme Court decisions commencing with Ex will be cast in stone, beyond the reach of sents new situations testing the boundaries parte McCardle, 74 U.S. <7 Wall.) 506, 513-14 the Supreme Court to alter or overrule. of federal constitutional rights. Without the <1868). 3 Supporters point out that until 1889 Finally, it must be recognized that state unifying function of United States Supreme no criminal cases were appealable to the Su court litigation constantly presents new sit Court review, there inevitably will be diver preme Court, because Congress had not au uations testing the boundaries of federal gence in state court decisions, and thus the thorized the right. 4 They further rely on constitutional rights and requiring judg United States Constitution could mean prior partial jurisdictional restraints im ment calls on applicability of federal consti something different in each of the fifty posed on Federal courts in the Norris-La- tutional principles. Without the unifying states; function of Supreme Court review, the D. Confusion will exist as to whether and United States Constitution could well mean how federal acts will be enforced in state Footnotes at end of article. something different in each of the fifty e This "bullet" symbol identifies statements or insertions which are not spoken by the Member on the floor. 690 EXTENSIONS OF REMARKS February 2, 1982 states. Aside from the obvious effect of this al Courts and the Federal System" 309-65 Below is Mr. Stone's entire editorial. anomaly on the nation's citizens, the result <2d ed. 1973>. ScARS FRoM AWACS ing inconsistencies in legal precedent and "Members Move to Rein in Supreme the more frequent jurisdictional disputes Court," Cong. Q. 947-51 <May 30, 1981). <By Marvin Stone> would further overload state courts. "Symposium-Limiting Federal Court Ju President Reagan understandably is We believe these considerations, without risdiction: Can Congress do it? Should Con elated over his resourceful victory in the regard to constitutional issues, should red gress do it?," 65 Jud. <No.4 Oct. 1981). battle over the sale of AWACS to Saudi flag the above legislation in Congress. We FOOTNOTES Arabia. Unquestionably, his success in es question the wisdom of these bills and view 1 Proposed legislation to limit review of sex dis caping what appeared to be inevitable them as a hazardous experiment on the vul crimination in the armed services may be mooted defeat represented a master-stroke of politi nerable fabric of the nation's judicial sys by the decision in Rostker v.

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