Art III Power to Control Appellate Review

Samuel Bagenstos srbagenstos at wulaw.wustl.edu
Wed Jul 21 14:03:13 PDT 2004


Actually, I think the reported version is a bit different, and broader. 
Here's the operative language of the bill as reported to the floor of
the House, as I undertand it:

"No court created by Act of Congress shall have any jurisdiction, and
the Supreme Court shall have no appellate jurisdiction, to hear or
decide any question pertaining to the interpretation of, or the validity
under the Constitution of, section 1738C or this section."

The change seems to render Marty's first question moot, no?

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097

>>> "Marty Lederman" <marty.lederman at comcast.net> 7/21/2004 3:50:25 PM
>>>
Here's the language:

"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."

A couple of quick questions:

1.  In order to avoid the serious constitutional question that would be
raised by stripping article III courts of all jurisdiction to hear
constitutional challenges to DOMA, would the Court construe the phrase
"pertaining to the interpretation" narrowly, so as not to preclude
constitutional challenges that do not depend on any "interpretation" of
DOMA?  Cf.  Johnson v. Robison; INS v. St. Cyr.

2.  The bill would not affect the SCOTUS's original jurisdiction.  Is
there any context in which the constitutionality of DOMA could be raised
in an original action?  Cf. Felker v. Turpin.


  ----- Original Message ----- 
  From: RJLipkin at aol.com 
  To: CONLAWPROF at lists.ucla.edu 
  Sent: Wednesday, July 21, 2004 4:22 PM
  Subject: Art III Power to Control Appellate Review


          Any reactions to  H.R. 3313 ("Marriage Protection Act") which
reportedly strips the federal courts of jurisdiction to review the "full
faith and credit" provision of DOMA?


  Bobby


  Robert Justin Lipkin
  Professor of Law
  Widener University School of Law
  Delaware


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