Art. III, Sec. 2, cl. 2 of the U.S. Constitution provides,
"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
In the Sixties and Seventies, there were proposals to strip the Federal courts of jurisdiction in busing and desegregation cases. Later, in abortion cases. Now, in cases involving firearms sales and most recently, in habeas and civil rights cases brought by foreigners held in U.S. custody (as at Gitmo or the recently officially-disclosed CIA prisons).
It seems to me that there’s a difference between Congress closing the courthouse doors before a particular type of litigant reaches it, and compelling the courts to throw out already-filed cases. Should there be some kind of grandfathering of pending cases? Is it a violation of equal protection to cut such cases short? What say you?
I don’t think either of those apply – the proposed action doesn’t criminalize any prior conduct; it’s strictly procedural.
I believe that Congress does not have this right, and I think that’s grounded in the innate power of what it means to be a court, which is (IMHO)a concept that exists in the Constitution by way of that document creating courts but not defining them – and ergo relying on the definition of a judiciary that everyone understood at the time, unlike the legislature, which was explicitly described in a way very different from the legislature which existed in English of the period.
Furthermore, the Fifth Amendment requires due process. No one can honestly make the argument that due process allows the executive to hold anyone, anywhere, for the rest of their lives, in secret, with torture, and with no opportunity for the victim of such deprivations to even be heard as to his innocence. (Which is why the Administration doesn’t even try – they just say they’re terrorist killersh, as if that had anything to do with the question at hand). Regardless of Congress’s authority to limit the jurisdiction of the courts, which is extensive, Congress does not have the authority to ignore the Fifth Amendment and violate due process – Amendments limit otherwise-proper application of governmental power. That’s just how Amendments work.
Concerning “stripping of jurisdiction”, the clause you’ve quoted is only half the story. It deals only with the jurisdiction of the Supreme Court, not lower federal courts.
With respect to lower courts, the relevant clauses are Section 1, which vests the federal judicial power in such courts as Congress shall “ordain and establish”, and Section 2 Clause 1, which specifies that federal judicial power “shall extend to” various classes of “cases” and “controversies”.
The consensus has been that Congress can limit federal jurisdiction despite the words “shall extend to”. For example, Congress has limited jurisdiction in diversity cases to lawsuits involving more than $75,000. You can read some commentary on this complicated subject in this article from the Brigham Young law review.
With respect to removal of already pending jurisdiction, the only case I’m aware of in which this happened was ex parte McCardle. In that case, the Court recognized Congress’ removal of jurisdiction in an already pending case. However, that again concerned only Supreme Court jurisdiction, not general federal jurisdiction.
Should we see an increase in politically motivated jurisdiction removals, I suspect that SCOTUS would revisit this issue. My personal preference would be for some restrictions along the line suggested by the review article.