Constitutional Law
Spring 2008
Professor Fischer
Class 7:
Limits on the Federal Judicial Power:
The Exceptions and Regulations
Clause and Jurisdiction Stripping
Review: Ripeness
• Supreme Court considers 2 issues to determine
whether a case is ripe:’
• 1. Hardship to parties of withholding court
considerations (seems constituional)
• 2. fitness of issues for judicial decision – if
issues are more factual will be denied
preenforcement review (seems prudential)
• Probably both requirements are required, but
not entirely clear how interrelated they are
Review: Mootness
• Exceptions:
• 1. Wrongs Capable of Repetition Yet
Evading Review
• 2. Voluntary Cessation – Friends of the
Earth v. Laidlaw (2000): narrow exception
• 3. Class Actions – Court has taken a
flexible approach to allow properly certified
class actions to continue even where
named plaintiff’s claims become moot
U.S. Parole Commission v. Geragty
• Prisoner denied parole based on Parole
Commission’s guidelines wanted to bring a
class action suit to challenge the
guidelines
• District court refused to certify class action
• Prisoner then released from prison
• Was the case moot even though a class
action was never certified?
JURISDICTION STRIPPING
• What is this?
• Why would Congress try to do it?
• It raises separation of powers concerns
Examples of jurisdiction-stripping
bills
Examples of jurisdiction-stripping
bills
•Pledge Protection Act of 2005 (passed by House 2006)
•Marriage Protection Act of 2004 (passed by House 2004)
•Detainee Treatment Act 2005 see Hamdan case
•Military Commissions Act of 2006 see Boumediene case
The Exceptions and Regulations
Clause
The Exceptions and Regulations
Clause
• Article III § 2: Supreme Court has
appellate jurisdiction “both as to Law
and Fact, with such Exceptions, and
under such Regulations as the
Congress shall make.”
• To what extent does the TEXT of this
provision authorize the Congress to
limit the Court’s appellate jurisdiction?
PRECEDENT: Ex parte McCardle
(1868) [C p. 25]
• Who was William McCardle?
• What were the substantive and
jurisdictional issues in his case?
Ex parte McCardle (1868) [C p. 25]
Substantive issue: Was the imprisonment
of McCardle under the Military
Reconstruction Act violate the
Constitution?
Ex parte McCardle (1868) [C p. 25]
Jurisdictional issue: Did the Supreme
Court have power to hear McCardle’s
appeal after the enactment in March
1868 (over President Johnson’s veto) of
a statute repealing the 1867 statute
giving federal courts the power to grant
habeas corpus relief to prisoners in
state or federal custody AND
authorizing Supreme Court appellate
review of writs of habeas corpus
Ex parte McCardle
• How did the Court
rule on the
jurisdictional issue?
• (Opinion of Chief
Justice Salmon
CHASE)
Ex parte McCardle (1868)
• Does this precedent
establish that
Congress can
preclude Supreme
Court review of
certain issues (eg
abortion, school
prayer)
Ex parte McCardle (1868)
• Why didn’t the Court review the
constitutionality of McCardle’s
imprisonment based on the 1789
Judiciary Act?’
• See ex parte Yerger (1868), decided
shortly after McCardle.
Ex parte Yerger (1869)
• What justiciability doctrine precluded
substantive review of Yerger’s
constitutional claims challenging
Reconstruction?
PRECEDENT: Ex parte Klein
(1871)
• Was the statute
providing that
pardons were
inadmissable as
evidence in claims
for return of seized
property
constitutional? Why
or why not?
Ex parte Klein (1871)
• Under Klein, can
Congress restrict
the Supreme Court’s
jurisdiction in
specific areas, such
as abortion or
school prayer?
Robertson v. Seattle Audubon
Society (1992)
• On what basis did the Court find Klein
distinguishable?
POLICY ARGUMENTS
• What policy arguments can be made in
support of the power of Congress to
limit Supreme Court jurisdiction under
the Exceptions and Regulations
Clause?
• What are competing policy arguments?