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July 27, 2004

Jurisdiction, Confidence, and Exceptions

Josh Chafetz declares — with a bit more confidence than circumstances (or the law) merit — that the Marriage Protection Act, already passed by the House, is unconstitutional:

Congress cannot strip the federal judiciary of the ability to hear or decide any question pertainint to the interpretation of, or the validity under the Constitution of, the Defense of Marriage Act. Sorry, guys.

As you can probably glean from Chafetz's response to it and its name, the Marriage Protection Act specifically removes the Defense of Marriage Act — defining marriage for federal purposes and affirming states' right to reject the same-sex marriages of other states — from the federal judiciary's jurisdiction. And as you can glean from the fact of the act, many in the U.S. Congress apparently disagree with Josh's constitutional analysis. The reality is that the question of Congress's power over the judiciary is very much open to debate, with legal precedent to support both claims, right down to varying interpretations allowed by the Constitution itself.

Before I delve into that mire of nuance, however, it might be helpful for me to ease into the discussion by addressing a burden that Chafetz supposes those who disagree with him to have:

People who disagree with me also need to explain the Eleventh Amendment. After all, the Eleventh Amendment is just a jurisdiction stripping measure. (It strips diversity jurisdiction rather than federal question jurisdiction, but I can't see why that would be relevant.) If Congress can constitutionally strip jurisdiction at any time, then why go to all the trouble of passing a constitutional amendment for the purpose? To put it differently, if you disagree with my analysis above, then, assuming the Eleventh Amendment hadn't passed, why, on your theory of Article III, couldn't Congress simply have passed the Eleventh Amendment as an ordinary statute? And if they could have, why didn't they in the first place?

The first paragraph of an annotation from Chafetz's own source for constitutional text points the way to a response. Not only did the Eleventh Amendment follow a Supreme Court assertion of jurisdiction (thus being reactionary rather than preemptive), but it dealt with a matter of "original jurisdiction," around which the Constitution does not provide for congressional regulation.

Already, you see, we're in the thickets of legal jargon. Article III, Section 2 of the Constitution lists the matters to which the judiciary's power "shall extend" and describes the form of jurisdiction — original or appellate — that the Supreme Court will have. Cases falling under original jurisdiction go directly to the Supreme Court, and Congress has no statutory power; those falling under appellate jurisdiction reach the Supreme Court through appeal, "with such Exceptions, and under such Regulations as the Congress shall make."

Although the case that sparked the Eleventh Amendment had to do with matters of assumpsit and process about which my knowledge is too limited to comment, the need for the amendment in order to accomplish its end is clear. Cases "in which a State shall be Party" fall under original jurisdiction, so for Congress to remove cases in which a state is the defendant against citizens of another state or a foreign state, as the Eleventh Amendment does, the Constitution itself had to change. In contrast, claims against DOMA — with the U.S. government as defendant — would fall under appellate jurisdiction.

Now, consider the conclusion of the above-mentioned annotation:

There thus remains a measure of doubt that Congress' power over the federal courts is as plenary as some of the Court's language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the practice since 1789 and the holdings of many Court decisions. That its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution nor from the cases.

Even here, the Marriage Protection Act seems to fall on an interpretable line. I continue to believe that DOMA is constitutional, and I'm not at all persuaded that the least accountable branch of the federal government ought to be empowered to demand an interpretation at odds with those expressed by the other two branches, particularly if subsequent iterations of those branches reaffirm the constitutionality of the law through a removal of jurisdiction.

That, however, is more a political assessment than a legal one. To come to the objective conclusion that the Marriage Protection Act is constitutional, one must clear the highest hurdle that Chafetz notes:

People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2's statement that the federal judicial power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" doesn't actually mean that the federal judicial power shall extend to all such cases.

The crux of Chafetz's preceding analysis is that the Constitution extends powers to the judiciary as a whole, such that "some federal court is given jurisdiction over those questions"; where appellate jurisdiction is impossible, it transforms into original jurisdiction. At the very least, one can opine that, had that reading been their intention, the Founders could have phrased the concept in much more direct terms. As it is, hinging on the phrase "shall extend," I don't think the language justifies such a sweeping interpretation.

As I see it, Article III, Section 2, is structured to describe the reach of the judiciary and then to specify how that reach applies. The jurisdiction of the only court created by the Constitution extends to Set A inalienably and to Set B subject to regulation and exception. Chafetz emphasizes that "shall extend" is different from "may extend," but as important a distinction as that may be, it does not mean that "shall" is equivalent to "under all circumstances and with no exceptions." That the Constitution lists all areas of reach need mean only that the Court's jurisdiction over them is meant to be the negatable default, not that it is sacrosanct.

It would certainly have obviated this debate had the authors included language saying, essentially, that appellate jurisdiction becomes effectively null when there are no lower courts or when the lower courts exist with limited authority. On the other hand, it would have been similarly helpful for the authors to have included language clarifying Josh's contention that the reduction of jurisdiction to appellate is contingent upon the existence of other federal courts. Even something as simple as "the supreme Court shall maintain original Jurisdiction" would have sufficed.

I'll concede that the matter is legitimately arguable, and it will be interesting to see what happens should the Supreme Court assert jurisdiction over a statute that claims to be free of its jurisdiction. But given the legitimacy of debate, which no honest disputants can deny, I'm inclined to err in the direction that favors the two branches of government manifested in hundreds of elected officials, rather than the one with nine life-tenured judges. Frankly, I continue to marvel at the general inclination — which I see as anathematic to the spirit of our representative democracy — to err in the other direction.

Posted by Justin Katz at July 27, 2004 2:40 AM
Marriage & Family

Well, there is certainly one thing that leans toward the MPA not working. We are relying on the Supreme Court to curtail its own power, to some extent. Putting aside any legal reasoning, it is inevitable that the SCt. will have to decide whether or not the MPA can restrict its jurisdiction. If (when) it decides the MPA is unconstitutional, then what? What can Congress do? What can the Presidency do? I suppose individual states can continue to enforce laws against SSM, but what it will end up in the courts. Do the jailers ignore the courts' pronouncements? Do the lower courts continue to write orders? How many divisions has the S. Ct.?

Posted by: c matt at July 27, 2004 5:30 PM

Eve quoted this post at

I love this bit of logic by Chafetz:

"After all, the Eleventh Amendment is just a jurisdiction stripping measure. (It strips diversity jurisdiction rather than federal question jurisdiction, but I can't see why that would be relevant.) If Congress can constitutionally strip jurisdiction at any time, then why go to all the trouble of passing a constitutional amendment for the purpose?"

On his thinking, there was no need to guarantee freedom of speech in the First Amendment, because Congress could simply have not passed any laws restricting speech. The major difference in possibility of repeal doesn't seem to dawn on him.

Posted by: Ben Bateman at July 28, 2004 2:12 AM