The One Court that Congress Cannot Take Away: Singularity, Supremacy, and Article III
University of San Diego School of Law
Georgetown Law Journal, Vol. 96, 2007
This article makes a constitutional case against the jurisdiction-stripping provisions of the Military Commissions Act of 2006, including a new analysis of what the suspension clause tells us about the proper interpretation of Congress's power to make Exceptions to the Supreme Court's appellate jurisdiction. A voluminous existing scholarship has sought to curtail the reach of Congress's Exceptions power through structural arguments that do not directly contest the decision-precluding character of the power. This article directly and in detail makes the textual case for concluding that Congress's Exceptions power does not authorize jurisdiction stripping at all. Any limited tolerance for use of the Exceptions power to stop the Supreme Court from deciding Article III matters derives not from the most coherent understanding of the Constitution's text, but from the contorted history of Congress's provision for federal jurisdiction. This article analyzes that history and seeks to reconcile it with the most coherent vision of Article III's text. This article concludes that neither text nor founding-era history supports letting Congress remove matters from the Supreme Court's jurisdiction by reference to the legal issues at stake in those matters. Neither text nor founding-era history supports letting Congress use the Exceptions power to stop the Supreme Court from ultimately determining the legality of all aspects of federal detentions. To the extent that the Military Commissions Act of 2006 purports to stop the Court from ultimately determining the legality of any aspect of any federal detention, it is unconstitutional.
The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, read together, purport to invest power to have the last word on some Article III issues in bodies other than Article III's one supreme Court. This article makes the case that supremacy means ultimacy, and that Article III locates ultimacy on Article III issues in only one place - the one supreme Court that Article III creates. Congress's power to remove matters from that one Court's appellate jurisdiction is not a power to deprive the Court of ultimacy, but merely a power to re-route Article III matters of particular sensitivity to the one supreme Court's original jurisdiction. This article is the first systematic presentation of the case for reading Congress's Exceptions power not as a power to remove the Supreme Court's jurisdiction over particular matters, but merely as a power to turn the Court's appellate jurisdiction over those matters into original jurisdiction. A minority of scholars have favorably considered that possible construction of the power, but none has made a detailed textual and historic case for it. This article makes that case, explains why it has never been the orthodoxy, and shows why it leads to the conclusion that Congress cannot deprive the Supreme Court of pre-existing jurisdiction to determine the legality of federal detentions.
Number of Pages in PDF File: 82
Keywords: Military Commissions Act 2006, federal jurisdiction, Supreme Court, Article III, United States Constitution, Exceptions, Suspension Clause, habeas corpusAccepted Paper Series
Date posted: October 8, 2006
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