62 Pages Posted: 18 Dec 2005
As interbranch tension reaches a fever pitch, legislators seek to tighten screws on the judiciary. Congressional backlash against disfavored court opinions includes threats to impeach judges, establish judicial inspectors general, weaken life tenure, and strip federal jurisdiction over certain constitutional cases. Two current jurisdiction-stripping bills seek to preclude all federal review of the Defense of Marriage Act and recitation of "under God" in the Pledge of Allegiance. The Senate recently approved a third bill that strips military prison detainees such as those at Guantanamo Bay of all but one civilian federal forum.
This Article explores separation-of-powers tension through an experiential meditation on a hypothetical conversation involving one representative of each branch of government. In the tradition of Professor Hart's seminal dialogue, this three-act play, set in a power-broker restaurant, addresses whether Congress possesses plenary power over federal jurisdiction and, if so, the wisdom of exercising it. Where pertinent, the restaurant server, "Vox Populi," injects an opinion reflecting perspectives of "the people." The characters engage in precedential battles, play scholarly trump cards, sound predictions of (dire) consequences, employ philosophical theories, and craft real-world solutions. Thematically, each branch constitutes a set of strings that, with the other two branches, forms one guitar-like instrument. One out-of-tune branch ruins the melody of government. If indelicate hands turn the tuners too tight, the strings could snap (i.e., constitutional crisis). The manner in which the branches conduct themselves in crisis moments will leave an indelible mark on the functioning of our democratic government. Thus, each branch must attune itself to the motivations of, and realities faced by, the other branches. All must retune their instrument when intense strife threatens ideal balance.
Keywords: jurisdiction stripping, separation of powers, federal jurisdiction, Article III, Constitution, constitutional crisis, interbranch tension, balance of powers, federal courts, government, judiciary, Congress, Executive
JEL Classification: K10, K19, K30, K39, K4, K40, K41, K42, K49
Suggested Citation: Suggested Citation
Roberts, Caprice L., Jurisdiction Stripping in Three Acts - Three String Serenade. Villanova Law Review, Vol. 51, 2006. Available at SSRN: https://ssrn.com/abstract=870868