Federal Jurisdiction

28 September

• Controlling jurisdiction can be done by changing the substantive law, or by amending the scope of judicial power.
• The court isn't eager to make a final call about the scope of legislative or executive power over jurisdiction, but it will sometimes offer some interpretation (see the GTMO cases, e.g.) that can preview what that ruling might be.
• Klein
  Salmon Chase (interesting name!). Same judge as in Yerger and McCardle, incidentally, but the case seems to go the other direction. A notoriously incomprehensible case.

  As in McCardle this was legislation that targeted specific parties: hot cases. Congress was definitely trying to affect the outcome of a case (and-- duh-- make the government win). Now in McCardle congress was able to strip jurisdiction, and SCOTUS says they can't look into motives: that's pretty much a statement that "hey, Congress, go ahead and use your power."

  This case says some rather different things: the jurisdiction stripping is called "a means to an end" (p. 139). So what is the difference between these two cases? Why is a statute designed to do away with Klein, when congress got away with it in McCardle? Well, for one thing, this is less of an attack on the court, than an attack on presidential pardon power.

  It's also an intrusion on the court, though: the statute says that acceptance of amnesty means that you were disloyal, whereas SCOTUS precedent in Paddleford declared that amnesty meant that you were loyal (because your disloyalty was wiped out). It's kind of a rule of evidence question: when can you introduce evidence of amnesty, and what does it mean?

  So would this have been different if Paddleford had never been decided? Or if the statute said "one condition of getting your property back is that you never have accepted amnesty" (as opposed to trying to define what amnesty means)? So congress is dictating a rule of decision, and an interpretation of the constitution that goes against prior precedent.

  So maybe this stands for: congress can't dictate an interpretation of the constitution to the courts. Or congress can't dictate a rule of decision to the courts. That distinguishes this from McCardle: there the statute just said the court didn't have jurisdiction-- it didn't try to define the meaning of the substantive law to be applied. Saying that the court doesn't have power to decide the case is maybe less intrusive than supplanting the court's power (cf. Marbury) to say what the law is. There's a difference between a statute that takes a case away from the court and on that uses the court to reach a result that's unconstitutional.

  So this isn't a plain exercise of the "exceptions and regulations" clause (as McCardle was, and which was allowed), but rather an attempt to meddle with the merits. Because the case was already pending, and Klein had already won in the court below. So if SCOTUS doesn't have jurisdiction, Klein wins, and congress doesn't want that, so they have to not just stop SCOTUS affirming (and hope they'll reverse, especially since they've already got precedent saying what pardons mean), they need to dictate the outcome to SCOTUS, and use them to deprive Klein of his money.

  That's why the statute is so agressive, and why the court gets up in arms. You have a better chance of success, as congress, if you can just take the case away from the court, though.

  Note also that the holding here (Klein gets the money) is less politically charged that "the military reconstruction act is unconstitutional" (McCardle), so the court might feel more comfortable being contrary. Plus also, this is property rights, so that's something the court might not want to undermine.

• Plaut v. Spendthrift Farm
  Congress's statute compelling courts to re-open finally decided cases is unconstitutional.

  So specific constitutional clauses apply first. Then we worry about larger issues like separation of powers and other broader policies.

  Anyway, you can't force the court to re-open cases that have been decided. Even though the court has this power.

• Problem 3-3 (the Terri Schiavo case)
  So congress wants to use the federal courts to get around what has been done in the state courts, as a matter of state law. So they quickly make a statute. First question: should congress even get involved in these things, or leave them to the states? Was this just cynical posturing?

  Federal courts, after all, exist at the pleasure of congress, so what are they for? They're for what congress says they're for. Should congress have this power (is that what the "ordain and establish" clause is for)?

  The statute here doesn't go quite as far as Klein: it doesn't explicitly dictate the outcome. Now, congress can't give more standing than Article III permits (the injury-in-fact test), but there pretty much is injury-in-fact, but they're trying to clear out all the sub-constitutional outs that the court might have. (Rooker/Feldman doctrine: with the exception of habeas, you can't just get a federal district court to hear your case that has been decided in a state court-- you can't "appeal" to federal court, as a rule, in other words). So they are sweeping procedural barriers out of the way, but they don't attack the constitutional ones. Do they give her a federal right, or is it just a phantom right, designed either to get the outcome they like or put the blame on the judiciary?

  There is a history of personal bills, but it's strange that congress mobilizes itself just on behalf of one person. Still, in Wheeling Bridge a change to substantive law was held to be constitutional. That's not really what got done here: they just opened the door to the federal court so that rights could be argued.

  The court did take jurisdiction (it didn't try a facial attack on the legislation), but then rejects the suit on the merits. Still, is this-- like Klein-- an abuse of the courts (i.e., making them use altered constitutional law rules)?

  In the end, everyone says "well obviously what congress wanted to do was to save Terri, how could the court not have understood this?" But the bottom line is that congress didn't create an actual basis for saving her.

30 September

• So Art III says by default SCOTUS gets all the power, then § 2 enumerates the "headings" of power, and then we learn that the power can be limited by statute (i.e., regulations and exceptions).
• Congress sometimes talks about "grants" of jurisdiction, but really limiting is their only real power.
• 28 USC § 1331 is where we find jurisdiction for federal courts.
• So Congress can create the lower federal courts, and define their jurisdiction. The constitution defines the ceiling of jurisdictional power.
• Art III § 2 DOES NOT grant jurisdiction to lower federal courts. It just limits the extent of power they could be granted. We need to look at the statutes to see what the jurisdiction actually is.

  The headings of jurisdiction can be grouped into two categories:

  1. Law-based: admiral/maritime, arising under
  2. Party-based: ambassadors, etc.

  These powers were initially given to SCOTUS, but Congress could elect to distribute them to the lower courts.

• So what are the lower courts for, given that we've already got state courts? This tension is evident from the fact that no lower courts were created in the constitution. Maybe they're for whatever Congress wants, within the limits of the constitution. So with respect to lower courts, congress has the power to decide what they're for.

  Maybe they provide a non-state-centric way of resolving some disputes. State courts might be biased, or maybe hostile to federal law. So maybe federal courts provide a bit of an escape from courts tied to state interests. Of course: what's wrong with state interests-- shouldn't feds defer to them?

  Maybe there are times when the need for federal courts comes and goes ("...from time to time ordain and establish"). So, e.g., after the Civil War, there was a greater need for a strong interpretation of national law in southern states-- their governments had changed, but not their cultures. So the constitution puts congress in a position to take note of what's going on and take action.

  So expertise and sympathy with federal law are important, but they imply criticism of state courts. Uniformity is a stranger issue: state courts have concurrent jurisdiction, as a rule, and note that SCOTUS takes cases from state courts. Lower courts may or may not make for any strong kind of uniformity, given that they're situated in the states anyway.

  Maybe federal courts protect federal interests as well...

• Osborn v. Bank of the United States
  So is this act a jurisdiction-granting statute? Remember that we interpret statutes in such a way as to avoid constitutional quesions. But anyway, Justice Marshall certainly says it's a grant.

  Note that the "having competent jurisdiction" qualifier is not applied to the circuit courts (p. 243).

  So why do we think this grants jurisdiction? Because Congress knew the states didn't like the bank, and wanted to protect it from state courts where it wouldn't fare well. So this doesn't create exclusive jurisdiction, but it does give the bank access to an institution that is ostensibly less biased.

  So, then, can congress grant this jurisdiction in order to protect the national bank? Where is it on the list in Art. III? They're not a party listed there.

  So this is certainly imbued with federal interest, but is it really arising under federal law? The bank is a creature of federal law, that's true.

  We don't do isolated questions in federal court, we do cases. The case may have non-federal ingredient, but as long as there's a federal ingredient, the whole case can come in. Torts and contracts are not federal law, but this can be a federal case because it has a federal ingredient (p. 244).

  Even contract law (e.g. Planter's Bank) can make it in (p. 245). The bank is a creature of federal law, so its validity as a party to a lawsuit is an antecedent question to any case where it might be involved.

  Of course, after the first case, whether the bank is a valid party is res judicata, so it would be frivolous to raise it. How come you still get to bring those cases in federal court, if this isn't a question that a federal judge will ever have to decide? The federal issue most likely won't even come up. But Marshall is strong: whether or not it comes up, we can go to federal court, regardless of how remote that issue is.

  All this masks the real reason: congress is granting protective jurisdiction here.

• Problem 5-1 is easy. If Osborn is correct, the same thing happens with the Red Cross. In fact, the grant of jurisdiction is even clearer.
• So what about other parties that congress would like to protect by giving access to federal courts, but they did not create? Like unions, or foreign sovereigns.
• Textile Workers Union v. Lincoln Mills
  So how do we avoid the problem of protective jurisdiction here? He interprets the statute as a grant of authority to create federal common law. There's no codification of contract issues here (although congress could have made such a thing).

  If the statute were merely a grant of jurisdiction, that would be a problem: they're not a party under Art III § 2. The Eerie doctrine got rid of federal common law in most areas, but a few statutes are read as federalizing areas of common law, as here. That's a pretty creative reading of the statute. There would still have to be an enumerated power giving congress the ability to do this (and Eerie dealt with this: there was none in that case), but Interstate Commerce easily covers collective bargaining agreements.

  So suddenly the case is full of federal law, and it's therefore easy.

  What if you don't like this theory, though? We can just go with "protective jurisdiction" as the concurrence says.

  Frankfurter (dissent) doesn't buy this, though. See below:

• So we need to get a party-motivated case into law-based jurisdiction. There's a perfectly good reason to do this, but how do we make it constitutional?

  Wechsler says: congress could have made a substantive law under which this arises, a party-based grant is OK. Of course, the fact remains that in reality congress didn't do this. But the theory here is that the greater power includes the lesser, and it's actually a nice thing when congress is modest and restrained, and we shouldn't goad them into crafting broader and more burdensome federal law.

  The Mishkin idea is that if congress says that there's an articulated policy (i.e. there's federal law in the field), we can get arising-under jurisdiction, even where state law should govern. Again, though congress could have legislated here, so again it's unsatisfactory.

  Neither of these ideas pleased Frankfurter, of course. He rejects protective jurisdiction. Partly because these theories impugn the state courts. Of course, that position impugns congress.