Jurisdiction Stripping

[Earl Maltz]

The fact that the Court could have spoken in less sweeping terms does not 
change the import of the language that it did use.

At 09:14 PM 3/5/2007 -0500, Vladeck, Steve wrote:
>Respectfully, to paraphrase Hart's Dialectic, Earl is reading McCardle for 
>all it's worth.
>
>I think it's hard to say that Chief Justice Chase definitively answered 
>the question, especially in light of the Court's decision a little under 
>one year later in Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869), as 
>discussed in Felker v. Turpin, 518 U.S. 651 (1996), both of which 
>emphasized the availability of an original habeas petition in the Supreme 
>Court (which would still technically be an exercise of the Court's 
>constitutional appellate jurisdiction).  If Yerger and Felker are right, 
>then the question of Congress's power to completely repeal the Supreme 
>Court's appellate jurisdiction was not properly at issue in McCardle. 
>That's not to say that the answer is that Congress's Exceptions Clause 
>power is not plenary; just that McCardle doesn't help either way.
>
>As Justice Souter wrote in his concurrence, "if it should later turn out 
>that statutory avenues other than certiorari for reviewing a gatekeeping 
>determination were closed, the question whether the statute exceeded 
>Congress's Exceptions Clause power would be open."
>
>-steve
>
>---
>Stephen I. Vladeck
>Associate Professor
>University of Miami School of Law
>G-385 Law Library
>1311 Miller Drive
>Coral Gables, FL  33146
>(305) 284-5837
>svladeck at law.miami.edu
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
>Sent: Mon 3/5/2007 8:29 PM
>To: Richard Dougherty
>Cc: conlawprof at lists.ucla.edu
>Subject: Re: Jurisdiction Stripping
>
>
>
>
>  From McCardle:
>
>We are not at liberty to inquire into the motive of [jurisdicition
>stripping legislation].  We can only examine into [Congress's] power under
>the Constitution; and the power to make exceptions to the appellate
>jurisdiction of this court is given by express words..
>
>That sounds pretty definite and absolute to me.
>
>At 05:47 AM 3/5/2007 +0000, Richard Dougherty wrote:
>
> >Earl:
> >
> >Does McCardle settle the matter so clearly?  In relation to Congress's
> >power to subtract jurisdiction when it has established it, it seems to,
> >but it's not so clear that it stands for Congress's power to strip
> >jurisdiction that is constitutionally established.  Is that right?  Is
> >there any case law on the latter issue? (Not that that would settle the
> >matter...)
> >
> >Richard Dougherty
> >
> >-----Original Message-----
> >From: "Earl Maltz" <emaltz at camden.rutgers.edu>
> >Sent 3/4/2007 5:31:37 PM
> >To: RJLipkin at aol.com, CONLAWPROF at lists.ucla.edu
> >Subject: Re: Jurisdiction Stripping
> >
> >I find this question garbled. I think the answer is that Congress can
> >strip the federal courts of appellate jurisdiction over any issue at any
> >time. Ex Parte McCardle. (Those who argue that Klein is to the contrary
> >are simply wrong in my view.)
> >
> >At 05:55 PM 3/4/2007 -0500, RJLipkin at aol.com wrote:
> > > A college junior, unknown to me, from a major eastern university
> > > wrote asking the following set of questions:
> > >
> > > "My questions concerns Article III powers and jurisdiction
> > > stripping. There seems to be a consensus on both sides of the issue that
> > > congress has to abide by general restraints such as the Bill of Rights,
> > > Article I-9 issues, etc. My question is would this also apply to
> > > commerce clause questions? For example, assuming a Remedy at issue in
> > > the Morrison decision and then strip the courts jurisdiction to hear
> > > commerce clause challenges? Also assuming a broad interpretation of
> > > Article III, could the congress generally strip the court's authority
> > > concerning any commerce challenges (except obvious problems such as
> > > using Commerce Clause
> > >authority to prevent certain groups from traveling on interstate highways,
> > >etc.). The lack of Supreme Decisions on this question and vagueness of
> > >the literature has me confused. Any help would be appreciated. Thank you."
> > >
> > > Can anyone suggest an informative, but succinct, response? Thanks.
> > >
> > >Bobby
> > >
> > >Robert Justin Lipkin
> > >Professor of Law
> > >Widener University School of Law
> > >Delaware
> > >
> > >Ratio Juris, Contributor: http://ratiojuris.blogspot.com/
> > >Essentially Contested America, Editor:
> > >http://www.essentiallycontestedamerica.org/
> > >
> > >
> > >
> > >
> > >----------
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> > >
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