Affirmative Power to Strip State Courts of Jurisdiction

47 Pages Posted: 30 Jan 2018 Last revised: 2 Feb 2018

Michael C. Dorf

Cornell Law School

Date Written: January 29, 2018

Abstract

The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal statutory claims and challenges to federal statutes, Congress exercises whatever affirmative power authorizes the substantive statute. However, Congress lacks affirmative power to strip all courts of the power to hear constitutional challenges to state laws. That conclusion is important in its own right but also complements views — such as Henry Hart’s contention that the Supreme Court must have such jurisdiction as necessary to play its “essential role” in our constitutional system — about the scope and limits of congressional power under the Exceptions Clause of Article III. The limit on affirmative congressional power to strip state courts of jurisdiction to hear constitutional challenges to state laws ensures that there will be cases over which the Supreme Court can exercise its appellate jurisdiction in order to play its essential role.

Keywords: Constitutional law, federal courts, federal jurisdiction, jurisdiction stripping

Suggested Citation

Dorf, Michael C., Affirmative Power to Strip State Courts of Jurisdiction (January 29, 2018). Cornell Legal Studies Research Paper No. 18-06. Available at SSRN: https://ssrn.com/abstract=3112673

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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