Jurisdiction, Congressional power, and constitutional remedies

Georgetown Law Journal, Jul 1998 by Harrison, John

JOHN HARRISON*

Judicial implementation of the Constitution still operates through the forms of litigation. Indeed, constitutional law has become so entangled with ordinary private law that it is common to talk about constitutional remedies, as if the Constitution were a set of duties and the courts' job were to prevent governments from violating those duties and to undo the effects of any such violations. It is clear from the Constitution that Congress has significant authority to determine the types of lawsuits that may be brought before the courts, especially the federal courts, and the decrees that may be issued in those lawsuits. Hence we can inquire into the extent to which Congress controls constitutional remedies.

The first step in discussing this issue is to identify the different congressional powers that bear upon it. Those powers fall into two broad categories. Some specifically concern the federal judiciary; for the purposes of this discussion, I will call them structural powers. Others, which I will call substantive powers, are not related specifically to the federal courts.

In this schema, Congress has four kinds of powers, two structural and two substantive. One structural power concerns the cases that can be heard in the federal courts; the other concerns remedies that are available in those cases. While Congress's substantive capacity can be divided any number of ways, the division relevant here is between powers to enforce constitutional rules that apply to the states as such and powers that primarily implicate the regulation of private individuals. Special issues arise when Congress acts pursuant to Section 2 of the Fifteenth Amendment, for example, in order to require that the states comply with Section 1. While the enforcement powers are remedial in the sense that the Constitution requires that Congress act with a particular purpose, they are substantive in my sense because any remedy Congress creates can be sought in both state and federal court.1 After fleshing out these distinctions I will make some brief observations about structural powers and the nonremedial substantive powers. Then I will present my main claim, which is about Congress's enforcement authority. I suggest that it may well be the source of the anticipatory remedy familiar from Ex parte Young,2 and that Congress therefore has substantial discretion as to whether that remedy should be available.

Congress has two main structural powers that relate to the federal judiciary's ability to implement the Constitution. First is Congress's authority to determine the jurisdiction of the federal courts by deciding which lawsuits Article III courts can hear. Congress exercises this authority by granting jurisdiction to the lower federal courts and by excepting cases from the appellate jurisdiction of the Supreme Court.3 This power determines whether certain lawsuits shall be heard in federal court, and does not create or destroy causes of action. When Congress keeps a lawsuit out of federal court through the exercise of its jurisdictional powers, the suit remains in state court. This structural authority, therefore, is fundamentally about judicial federalism.4

The second structural power of Congress is its authority over federal judicial remedies. This encompasses the congressional power to determine what kind of decrees the federal courts can issue in lawsuits that are within their jurisdiction but that do not involve causes of action themselves created by Congress. Congress can do this when it constitutes inferior tribunals. (An interesting question is whether the Necessary and Proper Clause authorizes Congress to enact similar legislation with respect to cases in the Supreme Court's original jurisdiction.)

This power is structural and not substantive and hence is separate from any authority over remedies that Congress may have owing to its power over the applicable law. Congress exercises a structural power when it describes the circumstances under which injunctions will be available in diversity cases not involving federal substantive law.5 In contrast, Congress exercises a substantive power when it creates a cause of action under the Post Office Clause and entitles the plaintiff to double damages. This distinction is important because Congress has considerably more discretion when exercising substantive rather than structural power. In particular, the structural power over judicial remedies must take as given the substantive rules (often referred to as rights) that are being implemented; Congress's structural role is to choose means to enforce those rules. When exercising a substantive lawmaking power, Congress can determine the primary rule to which remedies are proportioned.

Congress's many substantive powers can also shape the role of the courts. It is, for example, with substantive and not structural power that Congress confers limited finality on the application of law to fact by nonjudicial federal officers. To put the point in more familiar terms, Congress creates "Article I courts," and may confer on them limited finality, with substantive powers. Congress can require that the courts give substantial deference to administrative decisions with respect to the adjudication of public benefits like Social Security, for example, because Congress, in establishing the program, can confide in the administrative decision makers discretionary power.6