Congressional Research Service
The Library of Congress
Washington, D.C. 20540
THE CONSTITUTIONALITY OF TfIE WITHDRAWAL OF ALL FEDCOURT JUBISDICrZON OVW QUESTIONS m n N G
STATE-SPONSORED PBBER I N PUBLIC SCHOOLS
AKD PUBLIC BUaDIHGS
D a v i d M. Ackerman
L e g i s l a t i v e Attorney
American Law D i v i s i o n
A p r i l 27, 1979
THE LIBRARY OF CONGRESS
Congressional R e s e a ~ c hS e r v i r e
THE CONSTITIt~ONALITY OF TEIE WITHDRAWAL OF ALL FEDERAL
COURT JURISDICTION OVER QUESTIONS INVOLVING
STATE-SPONSOBED PBAYER IN PUBLIC SCHOOLS
AI?D PUBLIC BUILDILPGS
In the case of Engel v. Vitale
Supreme Court held the estab-
lishment of religion clause of the First Amendment to be violated by a state
requirement that school children say aloud at the beginning of each school
day the following prayer:
Almighty God, we acknowledge our dependence upon
Thee, and we beg Thy blessings upon us, our
parents, our teachers and our country.
The following year the Court srmilarly held unconstitutional, in the case of
Abington School District v. S c h q p ,
state requirement that at lease
ten verses from the Holy Bible be read at the b e g i ~ i n gof each school day
and that students join in the unison recital of the Lord's Prayer.
Court found these requirements to constitute establishments of religion
notwithstanding that in both cases the states made provision for the excusal
or nonparticipation of students either at their own request or at the request
their parent (s ) or guardian(s )
370 U.S. 421 (1962).
574 U.S. 203 (1963) .
On A p r i l 9 , 1979, t h e S e n a t e adopted a n amendment which would
deny t h e f e d e r a l d i s t r i c t c o u r t s a l l o r i g i n a l j u r i s d i c t i o n , and t h e Supreme
Court a l l a p p e l l a t e j u r i s d i c t i o n , o v e r
any c a s e a r i s i n g o u t o f any S t a t e s t a t u t e ,
o r d i n a n c e , r u l e , r e g u l a t i o n , o r any p a r t
t h e r e o f , o r a r i s i n g o u t of a n Act i n t e r preting, applying, o r enforcing a S t a t e
s t a t u t e , ordinance, rule, o r regulation
which r e l a t e s t o v o l u n t a r y p r a y e r s i n
p u b l i c s c h o o l s and p u b l i c b u i l d i n g s . 3/
That i s , under t h i s amendment, sponsored by S e n a t o r Helms, no c a s e challenging the c o n s t i t u t i o n a l i t y of a s t a t e s t a t u t e r e l a t i n g t o voluntary
p r a y e r i n t h e p u b l i c s c h o o l s c o u l d be h e a r d i n any f e d e r a l d i s t r i c t c o u r t .
Such c a s e s c o u l d be a d j u d i c a t e d o n l y i n s t a t e c o u r t s .
Moreover, no dec-
i s i o n by t h e h i g h e s t c o u r t o f any s t a t e cone2rning such a s t a t u t e o r
r e g u l a t i o n c o u l d be reviewed i n t h e Supreme C o u r t .
Each s t a t e ' s h i g h e s t
c o u r t would be i t s own f i n a l a r b i t e r i n such c a s e s .
Engel and Schempp
would c o n t i n u e t o s t a n d a s c o n t r o l l i n g p r e c e d e n t s , b u t f u t u r e l i t i g a t i o n
on t h e i s s u e c o u l d be h e a r d o n l y i n s t a t e c o u r t s , w i t h no o p p o r t u n i t y f o r
r e v i e w by any f e d e r a l c o u r t .
On A p r i l 5 , 1979, t h e S e n a t e had f i r s t added t h i s amendment t o S.210, a
b i l l t o e s t a b l i s h a Department of E d u c a t i o n , by a v o t e o f 47-37.
on A p r i l 9 t h e S e n a t e added t h e amendment i n s t e a d t o S.450, which s p e c i f i c a l l y concerned f e d e r a l c o u r t j u r i s d i c t i o n , by a v o t e of 51-40, then
v o t e d by a margin of 50-43 t o r e c o n s i d e r i t s e a r l i e r amendment t o t h e
Department o f Education b i l l and s u b s e q u e n t l y t a b l e d t h a t amendment,
See 125 Cong. Rec. S4128-54132 ( A p r i l 5, 1979) and S4138-S4165
( A p r i l 9 , 1979).
The issue addressed in this report is whezher Congress has the
constitutional power to eliminate completely all federal court jurisdiction
over a marter involving a constitutional right.
Assuming the efficacy
of the Senate-adopted mendment:
the constitutional right that is impli-
cated is the First Amendment right to be free from governmental establishments of religion, in this instance, as held by the Supreme Court in
Engel and Schempp, state-sponsored voluntary prayer In the public schools.
The Senate amendment would remove all federal court jurisdiction, both original
and appellate, over all cases related to such state-sponsored prayer.
issue is, does Congress have that power under the Constitution?
the Jurisdiction of the Lower Federal Courts
Article 111 of the Constitution defines the judicial power of the
United States in the following terms:
kction 2. The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their
authority;-to all Cases affecting Ambassadors, other
Several questions have been raised about the efficacy of the amendment as
adopted by the Senate in accomplishing its purpose of depriving the federal
courts of jurisdiction. For instance, it has been suggested that the
federal courts could still assert jurisdiction in prayer-related cases
simply by holding that the state-sponsored exercises in question were not
"voluntary." That issue was not resolved by the Supreme Court's decisions
in Engel and Schempp, because the voluntariness of the exercises was nct
deemed material to their constitutionality. This report, however, assumes
the efficacy of the Senate amendment in depriving the federal courts of
all jurisdiction over all cases relating to state-sponsored voluntary
prayer in the public schools.
public Ministers and Consuls;--to all Cases of
admiralty and maritime jurisdiction;-to Controversies to which the United States shall be a
Party;--to Controversies between two or more States;-between a State and Citizens of another State;-between
Citizens of different States; and Citizens of the
same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof,
and foreign States, Citizens or Subjects.
Article I11 does not by its terms create any of the inferior federal courts,
but instead confers that power on Congress :
Section 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 ....
h i s Congressional power is also affirmed in Article I of the Constitution
concerning the legislative power, which states:
::-2ction 8. The Congress shall have the Power.. . To
constitute Tribunals inferior to she Supreme Court.
It would appear to be generally conceded that under the provisions
in Articles I and I11 Congress has extensive control over the jurisdiction of
the lower federal courts. In Cary v. Curtis, for instance, the Supreme
the judicial power of the United States, although
it has its origin in the Constitution, is (except in
enumerated instances, applicable exclusively to this
court) dependent for its distribution and organization,
and for the modes of its exercise, entirely upon the
action of Congress, who possess the sole power of
creating the tribunals (inferior to the Supreme Court)
for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent,
or exclusive, and of withholding jurisdiction from them
in the exact degrees and character which to Congress may
44 U.S. ( 3 Howard) 236 ( 1 8 4 5 ) .
seem proper far the public good .... (T)he organization
of the judicial power, the definition a d distribution
of the subjects of jurisdiction in the federal trib*unals,
and the modes of their action and authority, have been,
and of right must be, the work of the legislature.
44 U.S. (3 Hovard) at 245.
Similarly, in Palmore v. United States
the Court construed Congress'
power over the jurisdiction of the inferior federal courts to be virtually
Article 111 describes the judicial power as extending to
all cases, among others, arising under the laws of the
United States; but, aside from this Court, the power
is vested "in such inferior Courts as the Congress may
from time to time ordain and estblish". 'Ibe decision
with respect to inferior federal courts, as well as the
task of defining their jurisdiction, vas left to
the discretion of Congress. That body was not constitutionally required to create inferior Art. I11 courts
to hear and decide cases within the judicial povcr - f
the United States
Nor, if inferior federal courts
were created, was it required to invest them with all
the jurisdiction it was authorized to bestow under
k t . 111. 411 U.S. 401.
And again in Kline v. Burke Construction Co. the court stated:
The Constitution simply gives to the inferior courts
the capacity to take jurisdiction in the enumerated
cases, but it requires an act of Congress to confer
it. And the jurisdiction having been conferred may,
at the will of Congress, be taken away in whole or in
part... . 260 U.S. at 234.
It has sometimes been argued that the language of Article I11
compels Congress to vest the entire judicial power, as defined by that
411 U.S. 389 (1973).
260 U.S. 226 (1922).
Article, in some federal court,
Congressional practice and the
course of judicial decisions since 1789 would seem to sanction extensive
Congressional discretion in this matter.
Not until 1875, for instance,
did Congress vest the inferior federal courts with general federal
and it has consistently predicated such juris-
diction on a minimum amount in controversy. Moreover, the Supreme Court
has consistently upheld such Congressional actions over the jurisdiction
of the inferior federal courts as (1) withdrawing jurisdiction even as
Justice Story, in Martin v. Hunter's Lessee, 14 U.S. (1 Wheaton)
304, 330-31 (18161, argued:
Congress cannot vest any portion of the judicial power of the
United States, except in courts ordained and established
by itself; and if in any of the cases enumerated in the constitution, the state courts did not then possess jurisdiction
the appellate jurisdiction of the supreme court ...could not
reach those cases, and, consequently, the injunction of the
constitution, that the judicial power "shall be vested" would
be disobeyed. It would seem, therefore, to follow, that
congress are bound to create some inferior courts, in which
to vest all that jurisdiction which, under the constitution,
is exclusivel~vested in the United States, and of which the
supreme court cannot take original cognizance
judicial power of the United States should be, at all times,
vested either in an original or appellate form, in some courts
created under its authority.
See also Eisentrager v. Forrestal, 174 F. 2d 961 (D.C.Cir., 1949), reversed on other grounds sub nom Johnson v. Eisentrager, 339 U. S. 7637950).
18 Stat. 470, Sec. 1 (Mar. 3, 1875). In 1801 Congress had briefly granted
the inferior federal courts jurisdiction over "all cases in law and equity,
arising under the Constitution and laws of the United States (2 Stat. 89,
Sec. 11 (Feb. 13, 18011, but a year later repealed that grant (2 Stat. 132
(Mar. 3, 1802)).
to pending cases,
(2) delimiting federal court jurisdiction over
and (3) selectively
a particular cause of action to a single tribunal,
withdrawing the jurisdiction of the lower federal courts to adjudicate
10/ Bruner v.-united States, 343 U.S. 112 (1952) (amendment of statute concerning claims for service to U.S.-the
Tucker Act-withdrawing federal
district court jurisdiction over claims by employees as well as officers,
without any reservation as to pending cases, requires dismissal of pending
cases). See also De La Rama Steamship Co., Inc. v. United States, 344
U.S. 386 (1953) (general
authority of Connress
to withdraw federal court
jurisdiction even as to pending cases affirmed, but General Savings
Clause held to preserve pending,claims in instant case).
the Emergency Price Control Act of 1942 (56 Stat. 23) required
all challenges to the validity of regulations adopted to enforce it to
be brought in a single Emergency Court and barred all other federal, state,
or terrirorial courts from asserting jl.risdiction over such challenges.
The decisions of the Emergency Court were reviewable in the Supreme
Court. This unusual jurisdictional scheme was held to be within Congress'
constitutional power in Lockertp, v. W i l l i s, 319 U.S. 182 (1943) and
Yalcus v. United States, 321 414 19-ary,
the Voting Rights
Act of 1965 (79 Stat. 437, 4 2 U.S.C. 1973) limited jurisdiction over
proceedings to terminate the coverage of the Act in a particular
area to a single court in the District of Columbia, and this was
upheld in South Carolina v. Katzenbach, 383 U.S. 301 (1966). See
also the jurisdiction of the Temporary Emergency Court of Appeals
as created by the Economic Stabilization Act of 1970 (P.L. 91-379,
12 USC 1001) and as further defined in the Emergency Petroleum Allocation
Act of 1973 (P.L. 93-159, 87 Stat. 628, 15 USC 751 et seq.) and
the Energy Policy and Conservation Act of 1975. (P.L. 94-163, 89
particular issues or to order particular remedies.
Nonetheless, it has occasionally been suggested that Congressional
power to withdraw jurisdiction once granted to the Federal courts may be
subject to other Constitutional provisions. For instance, in the Portal13/
to-Portal Act of 1947
Congress removed federal court jurisdiction
over suits claiming overtime compensation, under the Fair Labor Standards
for activities prior and subsequent to the principal employment
activity of the day.
The Supreme Court had held such activities as walking
to and from employees' work stations, changing clothes, and cleaning up to
be compensable under the FLSA.
Congress responded by passing the
In 1839 Congress by statute (Act of Mar. 3, 1839, chap. 83, sec. 2)
disallowed suits in assumpsit against the collectors of customs duties
which were allegedly assessed unlawfully, and this was upheld in Gary
v. Curtis, supra. In the Norris-LaGuardia Act (47 Stat. 70, 29 USC
101 et seq., Congress restricted the jurisdiction of the federal courts
to issue restraining orders or temporary or permanent injunctions in
labor disputes, and this was upheld in Lauf v. E.G. Shinner 6 Co., 303
U.S. 323 (1938). In the Anti-Injunction Act (26 U.S.C. 7421 (a), first
adopted in 1867, Congress barred all courts from entertaining suits to
restrain the assessment or collection of any tax, and this was most
recently upheld in Bob Jones University v. Simon, 416 U.S. 725 (1974).
The Judiciary Act of 1789 exempted from the federal courts' diversity
jurisdiction those cases in which diversity resulted from an assignment of a chose in action, and this exemption was upheld in Sheldon
v. Sill, 49 U.S. ( 8 Howard) 441 (1850).
29 U.S.C. 216(b).
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 630.
61 Stat. 84-90; 29 U.S.C. 251-262.
Portal-to-Portal Act defining such activities as not compensable and,
further, removing all federal court jurisdiction over suits claiming
compensation for such activities. In the leading case of Battaglia
v. General Motors Corporation,
however, the U.S. Court of
Appeals for the Second Circuit held the validity of the withdrawal
of jurisdiction to depend on the validity of Congress' redefinition
of compensable activities:
We' think... that the exercise by Congress of
its control over jurisdiction is subject to
compliance with at least the requirements of the
Fifth Antendment. That is to say, while Congress
has the undoubted power to give, withhold, and
restrict the jurisdiction of courts other than
the Supreme Court, it must not so exercise that
power as to deprive any person of life, liberty,
or property without due process of lav or to take
private property without just compensation. Thus
regardless of whether subdivision (d) of section 2
(withdrawing federal court jurisdiction) had an
independent end in itself, if one of its effects
would be to deprive appellants of property without
due process or just. compensation, it would be invalid,
169 F. 2d at 257.
In other words, the court said that Congress cannot use its power over
jurisdiction to deprive persons of rights otherwise protected by the Constitution.
Similarly, several cases suggest that Congress may exceed its
power over jurisdiction if it uses it to deny a person all judicial remedies
to a claimed deprivation of a federal right.
In Caty v. Curtis, supra,
Justice McLean argued in dissent that .the majority misconstrued the effect
169 F.2d 254 (2nd Cir., 1948), cert. den. 335 U.S. 887 (1948).
of a Congressional statute.
The statute in question had the effect of
barring the traditional remedy of suing a customs collector personally
for duties paid under protest or for indeterminate assessments.
statute required the collector to turn the moneys over to the Treasury
upon receipt and authorized an appeal to the Secretary of the Treasury
by complainants, without any judicial review. Justice McLean argues
that this statute submitted citizens to summary executive action without
any possibility of judicial review, and that, so construed, the statute
exceeded Congress' power over the courts. The statute, he said, violated
the independence and necessary function of the judiciary:
In this aspect, then, I say, the act is unconstitutional
and void. It not only strikes down the rights of the
citizens, but it inflicts a blow on the judicial power
of the country. It unites, in the same department, the
In my judgment, no
executive and judicial power.
principle can be more dangerous than the one mentioned in
this case. It covers from legal responsibility executive
officers.... If he cannot be sued, what may he not do
with impunity. 44 U.S. ( 3 Howard) at 266 (McLean, J.,
The majority avoided the force of this argument by saying that the statute
in question did not have the asserted effect, that.other avenues of
judicial redress remained open to aggrieved citizens.
Again, in Yakus v. United States, supra, the Court upheld the unusual
judicial review provisions of the Emergency Price Control Act which barred
the issue of the validity of regulations issued under the Act from being
raised as a defense in criminal prosecutions of alleged violations of the
The Act provided that the validity of the regulations could be
challenged only upon an administrative protest to the Administrator and
subsequently upon review of his action by a specially-created Emergency
Court of Appeals.
In upholding this unusual procedure, the Court
seemingly implied that some judicial review was a constitutional
Unlike most penal statutes and regulations whose
validity can be determined only by running the risk
of violation, the present statute provides a mode of
testing the validity of a regulation by an independent
administrative proceeding. There is no constitutional
requirement that that test be made in one tribunal
rather than in another, so long as there is an opportunity
to be heard and for judicial review which satisfies the
demands of due process, as is the case here. 321 U.S.
In sum, it is clear that .Congress' power over the jurisdiction of the
inferior federal courts is extensive. Morever, it should also be noted
that even in those cases where the courts have suggested possible limitations
on Congr.-ss'power, they have upheld the particular expressions of that power
in the cases before them.
In other words, the suggested limitations have
not yet been employed by the courts as actual constraints.
Congressional Jurisdiction Over the Appellate Jurisdiction of the Supreme Court
Congressional power over the appellate jurisdiction of the Supreme
Court would appear to be more problematic.
In part this is due to the language
of Article I11 itself. As noted above, Section 1 of Article 111 provides that:
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
More specifically, Section 2 of Article 111 defines the original and appellate
jurisdiction of the Supreme Court as follows:
In all Cases affecting Ambassadors, other public
Xinisters and Consuls, and those in which a State
shall be Party, the Supreme Court shall have
appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations
as the Congress shall make.
Thus, Article I11 confines Congressional power over the appellate jurisdiction of the Supreme Court to the making of "Exceptions and
lations ...," a power seemingly less complete on its face than Congress'
power to "ordain and establish" the inferior courts.
stems from the fact that beginning with the Judiciary Act of 1789
Congress has made no attempt to sharply curtail the appellate jurisdiction of the Supreme Court, and thus the possible limits of its power
have not been fully tested.
This is particularly true with respect to
Supreme Court review of state court decisions concerning federal rights:
(T)he Supreme Court has always had authority, under
certain circumstances, to review o final judgment or
decree of the highest court of a state in which a
decision could be had, where... the judgment turns upon
a substantial federal question. Moore's Federal Practice,
Vol. 1 (2nd ed.), Section 0.6(6), pp. 252-53.
Nonetheless, numerous statements by the Supreme Court can be found
describing Congress' power over its appellate jurisdiction in terms as
sweeping as those it hss used to describe Congress' power over the jurisdiction of the interior federal courts.
In Durousseau v. United States,
for instance, Chief Justice Marshall stated:
The appellate powers of this court are not given
by the judicial act. They are given by the constitution. But they are limited and regulated
by the judicial act, and by such other acts as
have been passed on the subject.
1 Stat. 73.
10 U.S. (.I5 Otto) 38 (1810).
When the first legislature of the union proceeded to
carry the third article of the constitution into
effect, they must be understood as intending to
execute the power they poss--ssadof making exceptions
to the appellate jurisdictl-1 of the supreme court.
They have not, indeed, made tt,esc exceptions in express
terms. They have not declarccl islac the appellate
power sf the court shall not extend to certain cases;
but they have described affirmatively its jurisdiction,
and this affirmative description has been understood
to imply a negative on the exercise of such appellate
power as is not comprehended within it. 10 U.S.
(6 Cranch) at 314.
Similarly, in The ."Francis Wright"
Chief Justice Waite stated:
... while the appellate power of this court under the
Constitution extends t o all cases within the judicial
power of the United States, actual jurisdiction under
the power is confined within such limits as Congress
sees fit to prescribe
What (the Court's appellate
powers) shall be, and to vhat extent they shall be exercised, are, and always have been, proper subjects of
legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit
the use of the jurisdiction. Not only may whole
classes of cases be kept out of the jurisdiction
altogether, but particular classes of questions may
be subjected to re-examination and review, while
others are not. 105 U.S. at 385-86.
Host significantly, in the leading case of Ex parte McCardle
Court dismissed for want of jurisdiction an appeal of a habeas corpus
proceeding when Congress repealed the statute on the basis of vhich the
appeal was taken, even though the case had been argued before the Court
and was awaiting final decision.
HcCardle had been imprisoned by the
post-Civil War military government in Mississippi under the authority
105 U.S. (15 Otto) 381 (1881).
( 7 Wallace) 506 (1868).
CRS- 1 4
o f t h e R e c o n s t r u c t i o n A c t s f o r p u b l i s h i n g a l l e g e d l y l i b e l o u s and i n c e n d i a r y
a r t i c l e s i n h i s newspaper.
Under t h e a u t h o r i t y of an 1867 s t a t u t e h e s o u g h t
a writ o f h a b e a s c o r p u s i n f e d e r a l c i r c u i t c o u r t a l l e g i n g t h a t t h e Recons t r u c t i o n A c t s were u n c o n s t i t u t i o n a l , and when t h a t was d e n i e d b r o u g h t an
a p p e a l t o t h e Supreme C o u r t , a s a u t h o r i z e d by t h e 1867 s t a t u t e .
h e l d t h a t i t had j u r i s d i c t i o n of t h e a p p e a l u n d e r t h e 1867 s t a t u t e
h e a r d o r a l argument on t h e m e r i t s of t h e c a s e .
But b e f o r e t h e Court c o u l d
r e n d e r a f i n a l d e c i s i o n , Congress r e p e a l e d t h a t p a r t of t h e 1867 s t a t u t e
which a u t h o r i z e d an a p p e a l t o t h e Supreme C o u r t .
A f t e r reargument on t h e
e f f e c t o f t h e r e p e a l , t h e Court d i s m i s s e d t h e c a s e , s t a t i n g :
We a r e n o t a t l i b e r t y t o i n q u i r e i n t o t h e m o t i - ~ e s
o f t h e l e g i s l a t u r e . We c a n o n l y examine i n t o i t s
powei- u n d e r t h e C o n s t i t u t i o n ; and t h e power t o
make e x c e p t i o n s t o t h e a p p e l l a t e j u r i s d i c t i o n o f
t h i s c o u r t i s g i v e n by e x p r e s s ~ o r d s .
What, t h e n , i s t h e e f f e c t of t h e r e p e a l i n g a c t
upon t h e s a s e b e f o r e u s ? We c a n n o t doubt a s t o t h i s .
Without j u r i s d i c t i o n t h e c o u r t c a n n o t p r o c e e d a t a l l
i n any c a u s e . J u r i s d i c t i o n i s power t o d e c l a r e t h e
l a w , and when i t c e a s e s t o e x i s t , t h e o n l y f u n c t i o n
r e m a i n i n g t o t h e c o u r t i s t h a t o f announcing t h e f a c t
and d i s m i s s i n g t h e c a u s e . 74 U.S. ( 7 W a l l a c e ) a t 514.
O t h e r c a s e s c o n t a i n s i m i l a r sweeping s t a t e m e n t s .
I n T u r n e r v . Bank o f North A m e r i c a , 4 U.S.
J u s t i c e Chase s t a t e d :
( 6 W a l l a c e ) 318 ( i 8 6 8 )
( 4 D a l l a s ) 8 , 10 ( 1 7 9 9 ) ,
The n o t i o n h a s f r e q u e n t l y been e n t e r t a i n e d , t h a t t h e
f e d e r a l C o u r t s d e r i v e t h e i r j u d i c i a l power i m m e d i a t e l y
from t h e c o n s t i t u t i o n ; b u t t h e p o l i t i c a l t r u t h i s , t h a t
t h e d i s p o s a l o f t h e j u d i c i a l power, ( e x c e p t i n a few
s p e c i f i e d i n s t a n c e s ) belongs t o congress. I f congress
h a s g i v e n t h e power t o t h i s C o u r t , we p o s s e s s i t , n o t
o t h e r w i s e : and i f c o n g r e s s h a s n o t g i v e n t h e power
Notwithstanding these assertions, however, some limitation would still
appear to attach to CongressC ~onrrolof the Supreme Court's appellate juris23 /
diction. In Ex parte YcCardk i r s e l f and snbseguently in Ex parte Yerger
the Court emphasized that the repeal of the !867 statute did not deprive it
of all appellate power over cases involving the constitutional right of habeas
The act of 1868 does not except from that jurisdiction
any cases but appeals from Circuit Courts under the act of
1867. It does not affect the jurisdiction which was
previously exercised. 74 U.S. ( 7 Wallace) at 515.
R a t is, under the Judiciary Act o f 1789 the Court had, prior to 1867,
exercised the authority to review lower federal court decisions concerning
habeas corpus, not by appeal but by a writ of certiorari
In Ex parte
Yerger it was argued that the 1867 act authorizing direct appeals implicitly
repealed the jurisdiction granted
la t h e
1789 a c e , and t h a t the subsequent
repeal of the 1867 act d e p r ~ v c dthe Court o f a l l appellate lurrsdiction
22/ (cont ' dt a us, or to any other G c m r t , i f s t i l l remains at the legislative
disposal. Besides, c o n g r e s s is not Deund, and k t would, perhaps,
be inexpedient, to enlarge the jurisdiction of the federal Courts,
to every subject, in every form, which the constitution might warrant.
In Daniels v. Railroad Company, 90 U.S. (3 wallace) 2.50, 254 (1865)
the Court stated:
The original jurisdiction of this court, and its power to
on, are created and defined by
receive appellate jurisdic~j
the Constitution; and the legislative department of the
government can enlarge neither one not the other. But it
is for Congress to determine how far, within the limits of
capacity of this court to take, appellate jurisdiction
shall be given, and when conferred, it can be exercised only
t o the extent and in the manner prescribe$ by law. In these
respects it is wholly the creature of legrslatlon.
S, (8 Wallace) 85 (1868).
over habeas corpus proceedings.
But t h e Court r e j e c t e d t h e a r g u m e n t ,
i t i s t o o p l a i n f o r argument t h a t t h e d e n i a l t o
t h i s c o u r t of a p p e l l a t e jurisdiction i n t h i s c l a s s
of c a s e s must g r e a t l y weaken t h e e f f i c a c y of t h e
w r i t , d e p r i v e t h e c i t i z e n i n many c a s e s of i t s
b e n e f i t s and s e r i o u s l y h i n d e r t h e e s t a b l i s h m e n t of
t h a t u n i f o r m i t y i n d e c i d i n g upon q u e s t i o n s of
p e r s o n a l r i g h t s which c a n o n l y be a t t a i n e d t h r o u g h
a p p e l l a t e j u r i s d i c t i o n , e x e r c i s e d upon t h e d e c i s i o n s
of c o u r t s of o r i g i n a l j u r i s d i c t i o n .
In the p a r t i c u l a r
e l a s s of c a s e s , of which t h a t b e f o r e t h e c o u r t i s a n
i t i s evident t h a t t h e imprisoned
c i t i z e n , however u n l a w f u l h i s imprisonment may be i n
f a c t , i s w h o l l y w i t h o u t remedy u n l e s s i t be found i n
t h e a p p e l l a t e j u r i s d i c t i o n of t h i s c o u r t .
These c o n s i d e r a t i o n s f o r b i d any c o n s t r u c t i o n g i v i n g
t o d o u b t f u l words t h e e f f e c t of w i t h h o l d i n g o r
abridging t h i s jurisdiction.
Ex p a r t e Y e r g e r ,
75 U.S. ( 8 W a l i a c e ) a t 102-103.
The C o u r t deemed t h e sudden w i t h d r a w a l of j u r i s d i c t i o n i n McCardle
t o be
j u s t i f i e d by "some i q e r i o u s p u b l i c exigency... w i t h i n t h e c o n s t i t u t i o n a l
d i s c r e t i o n of Congress t o d e t e r m i n e . , . .
But i t r e f u s e d t o c o n s t r u e t h e
1867 and 1868 s t a t u t e s a s w i t h d r a w i n g
t h e whole a p p e l l a t e j u r i s d i c t i o n of t h i s c o u r t ,
i n c a s e s of h a b e a s c o r p u s , c o n f e r r e d by t h e Cons t i t u t i o n , r e c o m i z e d by law, and e x e r c i s e d from
t h e f o u n d a t i o n of t h e government h i t h e r t o . . . .
Ex p a r t e Y e r g e r , 75 U.S. ( 8 Wallace) a t 106.
S u b s e q u e n t l y , i n United S t a E , v. 'Klein
t h e Court h e l d a
p a r t i c u l a r C o n g r e s s i o n a l s t a t u t e l i n i t i n g t h e a p p e l l a t e j u r i s d i c t i o n of
t h e Supreme Court and t h e a r i g i s a l j ~ i r i s d i c t i o nof t h e Court of Claims t o
a t 104.
( 1 3 W a l l a c e ) 128 (1871).
be unconstitutional. The case concerned the effect to be given to Presidential pardons of those who had aided and abetted the rebellion during
the Civil War.
Several Presidential proclamations during and after the
war had offered pardon and restoration of rights of property' to those who
had taken part in or aided and abetted the rebellion upon the taking and
keeping of a prescribed oath.
In 1869 the Court of Claims ruled in a case
involving a claimant named Padelford and another involving Klein that such
pardons cured any effects of having participated in the rebellion and held
them entitled to the proceeds of cotton that had been seized and sold by
the U.S. as abandoned during the conflict.
In 1870 the Supreme Court
affirmed in United States v. Padelford
that claimants so pardoned were
entitled to the proceeds of their seized property.
Congress then attached
a proviso to an appropriations bill providing that such pardons could not
be introduced in evidence in support of a claim against the U.S., that proof
of such a pardon would deprive the Court of Claims and the Supreme Court of
any jurisdiction over a claim against the U.S., and that the Supreme Court
would have no further jurisdiction over any pending case in which the judgment of the Court of Claims was based on a pardon.
The Supreme Court held
this proviso unconstitutional as infringing the powers both of the judiciary
and of the President. With respect to the judiciary the Court held that
the proviso was not within "the acknowledged power of Congress to make
exceptions and prescribe regulations to the appellate power" because it had
76 U.S. (9 Wallace) 531 (1870)
the effect of prescribing what the Court must decide in the case pending
the language of the proviso shows plainly
that it does not intend to -~ithholdappellate
jurisdiction except as a means to an end.. .(T)he
denial of jurisdiction to this court, as well as
to the Court of Claims, is founded solely on the
application of a rule of decision, in causes pending,
prescribed by Congress.
Congress has already provided that the Supreme Court
shall have jurisdiction of the judgments of the
Court of Claims on appeal. Can it prescribe a rule
in conformity with which the court must deny to itself
the jurisdiction thus conferred, because and only
because its decision, in accordance with settled law,
must be adverse to the government and favorable to
the suitor? T h i ~question seems to us to answer itself.
80 U.S. (13 Wallace) at 145-147. 2 7 1
Other cases suggest further possible limitations based on the supremacy clause of Article VI of the Constitution, which states:
This constitution and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
It is argued that this constitutional provision would be a nullity if there
were not a single supreme tribunal with the authority to interpret and pronounce
With respect to the powers of the Presidency, the Court found the
pardoning power to be granted "without limit" to the Executive and
held the Congressional provision to be an unconstitutional impairment of that independent power.
on the meaning of the Constitution and of federal law. Thus, Justice
Taney, in Ableman v. Booth,
But the supremacy thus conferred on this Government
(by the supremacy clause) could not peacefully.be
maintained, unless it was clothed with judicial power,
equally paramount in authority to carry it into
execution; for if left to the courts of justice of
the several States, conflicting decisions would
unavoidably take place
and the Constitution and
laws and treaties of the United States, and the
powers granted to the Federal Government, would soon
receive different interpretations in different States
and the Government of the United States would soon
become one thing in one State and another thing in
another. It was essential, therefore, to its very
existence as a Government, that...a tribunal should be
established in which all cases which might arise under
the Constitution and laws and treaties of the United
States, should be finally and conclusively decided.
And it is manifest that this ultimate appellate power
in a tribunal created by tl.? Constitution itself was
deemed essential to secure the independence and supremacy of the General Government in the sphere of actio.2
assigned to it; (and) to make the Constitution and laws
of the United States uniform, and the same in every
62 U.S. (21 Howard) at 517-18.
With even more dramatic flourish Justice Story justified Supreme Court review
of state court decisions as follows:
A motive of another kind, perfectly compatible with
the most sincere respect for state tribunals, might
induce the grant of appellate power over their decisions.
That motive is the importance, and even necessity of
uniformity of decisions throughout the whole United
States, upon all subjects within the purview of the
constitution. Judges of equal learning and integrity,
in different states, might differently interpret a
statute, or a treaty of the United States, or even
the constitution itself: If there were no revising
authority to control these jarring and discordant
judgments, and harmonize them into uniformity, the laws,
62 U.S. (21 Howard) 506 (1858).
the treaties, and the constitution of the United
States would be different in different states,
and might, perhaps, never have precisely the same
construction, obligation, or efficacy, in any two
states. The public mischiefs that would attend such
a state of things would be truly deplorable; and it
cannot be believed that they could have escaped the
enlightened convention which formed the constitution...
(T)he appellate jurisdiction must continue to be the
only adequate remedy for such evils. Martin v.
Hunter's Lessee, supra, at 347-348.
In other words, a Supreme Court with authority to review and revise lower
and state court judpehts may be constitutionally necessary to assure the
national uniformity and supremacy of the Constitution and federal law.
Another argument related to the above stems from the due process
If appellate review by the Supreme Court were denied in cases
involving a constitutional right, and if as a consequence different interpretations of the law develope? in the various states or federal judicial
circuits, then the effect would be unequal treatment of persons similarly
That is, persons asserting the same right would be treated dif-
ferently in different jurisdictions. This result, it has been suggested,
For fuller development of this argument, -see Ratner, "Congressional
Power over the Appellate
Jurisdiction of the Supreme Court,"
University of Pennsylvania Law Review 109: 157, 160-67 (1960). In
Hart and Wechsler's famous dialugue on Congress' power over the
jurisdiction of the federal courts, the limitation asserted as to
Congress' power over the Supreme Court's appellate jurisdiction is
.the exceptions must not be such as will destroy the
essential role of the Supreme Court in the constitutional plan.''
Bator, Mishkin, Shapiro, and Wechsler, Hart and Wechsler's The
Federal Courts and the Federal Syseem, (2nd ed., 19731, p. 331.
Sedler, "Limitations on the Appellate Jurisdiction of the Supreme
Court," University of Pittsburg Law Review 20: 99, 113-114 (1958).
would be "a manifest abuse of due process, one of the bases of which is equal
treatment before the law."
Thus, appellate review may be a
necessary consequence of due process, "if such an appeal is necessary to
secure uniform treatment before the law."
In sum, then, it is clear that the full scope of Congress' power
over the appellate jurisdiction of the Supreme Court has never been tested,
but it would appear that some limitations exist.
Klein establishes that
Congress may not, in jurisdictional guise, mandate a rule of decision for
particular cases.. McCardle and Yerger establish that Congress can
extinguish one means for obtaining appellate review of an asserted constitutional right when other means remain available, or, conversely, that the
courts will narrowly construe jurisdictional statutes when to do otherwise
would have the effect of.extinguishing a constitutio~alright.
suggest that fundamental constitutional limitations on Congress' pover may
stem from the Supreme Court's essential functions of giving uniformity and
national supremacy to federal law or from a due process right that constitutional freedoms not depend on geographic location in the United States.
onet the less ,
it should be emphasized that these limitations remain indefinite
With the exception of Klein, no Congressional restrictions
on the Supreme Court's appellate jurisdiction have been struck down.
neither, on the other hand, have there been many such restrictions: Congress
has generally accorded the Court a broad scope of appellate review, and
consequently there has been little opportunity for the Court to address
possible limitations on Congress ' power.
Thus, the possible limitations
remain, for the most part, indeterminate.
Congress' Power and the Senate Amendment.
As noted above, Congress has since the beginning of the nation
provided for Supreme Court review of state court decisions involving
substantial questions of federal law.
Thus, the Senate amendment to S.450
would, if enacted into law, be an unprecedented limitation on the jurisdiction
of the federal courts.
R i o r jurisprudence is no sure guide to the
constitutionality of the amendment because the amendment raises questions
concerning the Constitutional separation of powers which Congress and the
judiciary have generally avoided putting to the test in the past.
Jackson commented in the analogous context of President Truman's seizure of
the steel mills:
A judge, like an executive adviser, may be
surprised at the poverty of really useful
and unambiguous authority applicable to concrete
problems of executive power as they actually present
themselves. Just what our forefathers did.envision,
or would have envisioned had they foreseen modern
conditions, must be divined from materials almost
as enigmatic as the dreams Joseph was called upon
to interpret for Pharaoh. A century and a half of
partisan debate and scholarly speculation yields no
net result but only supplies more or less apt
quotations from respected sources on each side of any
question. Youngstown Sheet and Tube Co. v. Sawyer.
343 U.S. 579, 634-35 (1952) (Jackson, J., concurring).
Nonetheless, it would seem clear that several of the possible limitations on Congress' power suggested by the cases discussed in the previous two
sections would not be relevant to the Senate-pa-seci amendment. The amendment
does not, for instance, deny aggrieved parties all judicial remedies:
courts would remain open to suits concerning state-sponsored voluntary prayer.
Nor can the amendment be said to mandate a rule of decision in cases concerning
state-sponsored voluntary prayer that might come before the courts or directly
deprive persons of their constitutional right to be free of state-sponsored
Engel and Schempp would continue to stand as controlling
precedents in this area, presumably binding on state court judges as they
ruled on related cases.
The primary limitation that might affect the constitutionality of
the amendment would appear to be its effect on the supremacy clause and the
Supreme Court's role in giving effect to that clause. As discussed in the
preceding section, that potential limitation asserts that the Constitution
as a whole and particularly as manifested in the supremacy clause contemplates
a single judicial tribunal capable of resolving divergent interpretations of
the Constitution and federal law and imposing those resolutions as the
supreme law of the land.
These functions of maintaining the uniformity and
supremacy of federal law, it is claimed, are essential constitutional functions.
Consequently, legislation that would block or preclude altogether the Supreme
Court from performing these essential functions would be an unconstitutional
encroachment on the Court.
This argument would seem to have the sanction of several Court
decisions early in the nation's history upholding the Court's power to review
the decisions of the state courts in various contexts.
Ableman v. Booth: supra; Cohens v. Virginia, 6 Wheaton 264 (1821);
Martin v. Hunter s Lessee, supra.
of those decisions constituted an interpretation of the Court's jurisdiction
as affirmatively granted or recognized by Congress in the Judiciary Act of
Whether the argument has independent constitutional force against a
Congressional denial of jurisdiction has yet to be adjudicated.
It may also be that the Senate amendment possesses some of the
constitutional infirmity the Court found in United States v. Klein, supra.
As in Klein, the Senate amendment would make the exercise of the Supreme
Court's appellate jurisdiction depend on a determination as to whether "a
certain state of things exists."
is a finding of fact-the
As in Klein, the jurisdictional predicate
grant and acceptance of a pardon in Klein, the
voluntariness of the prayer in the Senate amendment. As in Klein, the
Senate amendment gives to that finding of fact an effect on the legal
rights iwolved contrary to earlier decisions of the Court. That is, in
Klein the Court had held the grant and acceptance of pardon to be conclusive proof that the statutory conditioas for recovery of the proceeds
of captured and abandoned property were met. Congress by statute gave
it the opposite effect and required jurisdiction to cease if the Court
found a claim was based on a pardon.
Similarly, in Engel and Schempp
the Court has held the voluntariness of state-sponsored prayer in the
public schools to be irrelevant to the issue of constitutionality,bur the
Senate amendment would make voluntariness the determinative factor for jurisdiction. Finally in Klein the jurisdictional predicate was legislated
in order to produce a particular outcome in pending and future case;
the Senate amendment similarly has as its purpose the production of a
particular judicial result.
The a n a l o g y i s n o t p e r f e c t , however.
The c o n s t i t u t i o n a l v i c e i n
K l e i n was t h a t t h e d e p r i v a t i o n o f j u r i s d i c t i o n had t h e e f f e c t o f d e c i d i n g
a pending c a s e a s w e l l a s f u t u r e o n e s i n f a v o r o f one o f t h e p a r t i e s ,
namely t h e government, and t h i s , t h e Court s a i d , "passed t h e limit which
s e p a r a t e t h e l e g i s l a t i v e from t h e j u d i c i a l power."
c o u l d have a s i m i l a r e f f e c t :
The S e n a t e amendment
I f a d e c i s i o n were r e n d e r e d by a s t a t e ' s
h i g h e s t c o u r t i n f a v o r of s t a t e - s p o n s o r e d p r a y e r and i f t h e Supreme Court
were t h e n f o r c e d t o d i s m i s s an a p p e a l f o r want o f j u r i s d i c t i o n on t h e b a s i s
o f a f i n d i n g t h a t t h e p r a y e r i n q u e s t i o n was v o l u n t a r y , t h e e f f e c t would b e
s i m i l a r , t h a t i s , t h e government would p r e v a i l .
But i t would p r e v a i l f o r a
d i f f e r e n t r e a s o n t h a n i n K l e i n , namely, b e c a u s e i t had p r e v a i l e d i n t l . ? s t a t e
c o u r t , n o t b e c a u s e t h e r e had been a s t a t u t o r y change i n t h e s i g n i f i c a n c e t o b e
given c e r t a i n evidence.
The c o n s t i t u t i o n a l v i c e i n t h i s , i f t h e r e be one,
would seem t o be more a k i n t o t h e supremacy c l a u s e and e s s e n t i a l f u n c t i o n s
argument d e t a i l e d above t h a n t o t h e u s u r p a t i o n o f t h e j u d i c i a l power s t r u c k
down i n K l e i n .
Thus, t h e c o n s t i t u t i o n a l i t y o f t h e S e n a t e amendment c a n n o t be conc l u s i v e l y d e t e r m i n e d on t h e b a s i s o f e x i s t i n g p r o c e d e n t s .
The f o r c e of t n e
supremacy c l a u s e and e s s e n t i a l f u n c t i o n s argument, p a r t i c u l a r l y i n l i g h t o f
S e n a t o r Helms s t a t e d on o f f e r i n g h i s amendment:
The l i m i t e d and s p e c i f i c o b j e c t i v e o f t h i s amendment,
t h e n , i s t o r e s t o r e t o t h e American p e o p l e t h e
fundamental r i g h t o f v o l u n t a r y p r a y e r i n t h e p u b l i c
s c h o o l s . 125 Cong. Rec. S4130 ( A p r i l 5 , 1979)
the Klein holding that Congrress' power over the Supreme Court's appellate
jurisdiction is limited by the separation of powers doctrine, would seem,
at the least, to cast some doubt on its constitutionality. But the paucity
of past Congressional action so extensively limiting federal court jurisdiction over a particular class of cases and of consequent judicial interpretations of Congress' power makes that conclusion necessarily tentative.
avid M. Ackerman
American Law Division
April 27, 1979
THE LIBRARY OF CONGRESS
C o n g r e s s i o n a l Research Service
WASHINGTON, D.C. 20540
BIBLIOGBAPHY OF L A W REVIEW ARTICLES
Brant, "Appellate Jurisdiction: Congressional Abuse of the Exceptions
Clause," 53 Oregon Law Review 3 (1973).
Eisenberg, "Congressional Authority to Restrict Lower Federal Court
Jurisdiction," 83 Yale Law Journal 498 (1974).
Hart, "The Power of Congress to Limit the Jurisdiction of Federal
Courts: An Exercise in Dialectic," 66 Harvard Law Review
Merry, "The Scope of the Supreme Court's Appellate Jurisdiction:
Historical Basis," 41 Minnesota Law Review 53 (1962).
Nagel, "Court-Curbing Periods in American History ," 18 Vanderbilt Law
Law Review 925 ( 19651.
Note, "Congressional Power over State and Federal Court Jurisdiction:
The ill-~urton and Trans-Alaska Pipeline Examples," 49 New York
University Law Review 131 (1974).
Note, "The Constitutional Implications of the Jurisdictional Amount
Provisions in Injunction Suits Against Federal Officers," 71
Columbia Law Review 1474 (1971).
Note, "Limitation on the Appellate Jurisdiction of the Supreme Court ,I'
20 University of Pittsburqh Law Review 99 (1953).
Note, "The Nixon Busing Bills and Congressional Power," 81 Yale Law
Journal 1542 (1972).
Ratner, "Congressional Power over the Appellate Jurisdiction of the
Supreme Court,'I 109 University of Pennsvlbania Law Review 157
Redich and Woods, "Congressional Power to Control the Jurisdiction of
Lower Federal Courts: A Critical Review and a New Synthesis,"
124 Universitp of Pennsplvania Law Review 45 (1975).
Rotunda, "Congressional Power to Restrict the Jurisdiction of the
Lower Federal Courts and the Problem of School Busing," 64
Georgetown Law Journal 839 (1976)
Thompson and Pollitt, "Congressional Control of Judicial Remedies:
President Nixon's Proposed Moratorium on 'Busing' Orders", 50
North Carolina Law Review 809 (1972).
Van Alstyne, "A Critical Guide to Ex Parte McCardle," 15 Arizona
Law Review 229 (1973).
Wechsler, "The court; and the Constitution," 65 Columbia Law Review