A framework for analyzing the constitutionality of restrictions on federal court jurisdiction in immigration cases

University of Memphis Law Review, The, Winter 1999 by Chemerinsky, Erwin

The prior three points were descriptive; this final one is normative. Frequently, scholars appraising the constitutionality of jurisdictional restrictions approach them from two perspectives: separation of powers and due process. However, I think that it is a mistake to see these two constitutional arguments as distinct rather than interrelated. Why, and when, does Congress's curtailing of federal jurisdiction offend separation of powers? The clearest explanation was offered by Professor Hart almost a half century ago: "The exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan."102 Other commentators as well have argued that Congress cannot use its power to interfere with the Court's essential functions under the Constitution.103

When does jurisdiction-stripping keep federal courts from performing their essential functions? One key way is when it prevents them from providing due process of law. Without a doubt, a central function of the federal judiciary is upholding the Constitution of the United States. Due process, of course, is at the very core of the judicial mission.

The complete preclusion of jurisdiction should be viewed as offending separation of powers and due process. First, providing independent and impartial decision making is a key characteristic of the federal judicial power and a core aspect of due process. Complete preclusion of federal jurisdiction offends both of these notions. In the immigration law context, foreclosing all federal judicial review leaves the matter entirely in the hands of administrative proceedings; state courts cannot review federal immigration proceedings or order relief against the federal government.104

An administrative proceeding is not an adequate substitute for a federal judicial proceeding. A federal administrative adjudicatory proceeding is essentially an Article I court. The Supreme Court has made it clear that Congress's ability to substitute an Article I tribunal for an Article III federal court is limited by the Constitution.105 In Commodity Futures Trading Commission v. Schor,p106 the Court made it clear that Congress cannot create Article I courts in a manner that offends separation of powers and due process. In Schor, the Court acknowledged the benefits of an administrative alternative to federal court litigation in terms of efficiency and expertise.107 At the same time, the Court said that these interests had to be balanced against "the purposes underlying the requirements of Article III."108 The Court considered two goals of Article III: ensuring fairness to litigants by providing an independent judiciary and maintaining the "structural" role of the judiciary in the scheme of separation of powers.

As to separation of powers, the Court declared: "In determining the extent to which a given congressional decision to authorize the adjudication of Article III business in a non-Article III tribunal impermissibly threatens the institutional integrity of the Judicial Branch, the Court has declined to adopt formalistic and unbending rules."109 Justice O'Connor, writing for the majority, said that, instead, the Court focused on several factors including: