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

As one who believes that there are significant constitutional limits on Congress's ability to restrict federal court jurisdiction, I am troubled that the issue is presented to the Court in the area of immigration law. There is a long history of judicial deference to Congress in matters of immigration. The "plenary powers" doctrine provides for an "extremely deferential standard that courts will apply in considering the constitutionality of government conduct in this area."25 I worry that the Court's desire to defer to Congress in matters of immigration law might lead to a decision that accords Congress broad authority to restrict federal court jurisdiction.

My goal in this Essay is to describe the general principles that should guide analysis of the constitutionality of jurisdiction restrictions in the immigration law area and elsewhere. I do not seek to provide a detailed analysis of the constitutionality of the recently adopted immigration laws. Others, such as Professors Gerald Neuman and Lenni B. Benson, have done a superb job of this already.26 Rather, this Essay is an attempt by a federal courts professor to explain the murky and confused law concerning jurisdiction stripping.

I suggest that the law should be understood in light of the following four principles. I will attempt to be explicit about where the law is clear and where I am offering my own opinion and normative analysis.

1. Unless federal statutes completely preclude all federal jurisdiction, Congressional restrictions on jurisdiction likely will be upheld.

The Supreme Court has clearly indicated that Congress has authority to limit the jurisdiction of the Supreme Court and of lower federal courts. It has upheld jurisdiction-stripping laws in the past; however, none of these laws involved the complete preclusion of all federal court review. Hence, based on these cases, it seems accurate to say that unless federal statutes completely preclude all federal jurisdiction, congressional restrictions on jurisdiction likely will be upheld.

As to congressional restrictions on Supreme Court jurisdiction, Article III, Section 2, states: "[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."27 Indeed, the first Congress did not vest the Supreme Court with appellate jurisdiction over all types of cases and controversies enumerated in Article III. For example, under the Judiciary Act of 1789, the Supreme Court had authority only to review decisions of a state's highest court that ruled against a federal constitutional claim.28 It was not until the twentieth century that the Supreme Court was accorded power to review decisions of a state court that ruled in favor of a constitutional right.29

In fact, the Supreme Court has upheld federal laws restricting jurisdiction, but none of these cases involved complete preclusion of all Supreme Court review. Ex parte McCardle30 is a key ruling in this regard. McCardle was a newspaper editor in Vicksburg, Mississippi, who was arrested by federal officials for writing a series of newspaper articles that were highly critical of Reconstruction and especially of the military rule of the South following the Civil War.31 McCardle filed a petition for a writ of habeas corpus pursuant to a statute adopted in 1867 that permitted federal courts to grant habeas corpus relief to anyone held in custody in violation of the Constitution or laws of the United States by either a state government or the federal government. Under the 1867 law, the Supreme Court was empowered to hear appeals from lower federal courts in habeas corpus cases. Before 1867, under the Judiciary Act of 1789, which was supplemented but not replaced by the 1867 law, federal courts could hear habeas petitions only of those who were held in federal custody.32