Friday, March 2, 2007
Spencer on the Courts' "Lost" Judicial Power
Posted by Mary L. Dudziak
A. Benjamin Spencer, Univ. of Richmond, has posted a new paper, Stolen Power: Reclaiming the Lost Judicial Power of the United States. Here's the abstract: The Third Branch of our federal government has traditionally been viewed as the least of the three in terms of the scope of its power and authority. This view finds validation when one considers the extensive authority that Congress has been permitted to exercise over the federal judiciary. From the beginning, Congress has understood itself to possess the authority to limit the jurisdiction of inferior federal courts, to dictate the procedures that will govern the federal courts' conduct of judicial business, and to delegate some portion of this authority over judicial procedure to the courts themselves. The Supreme Court has acquiesced to this understanding of congressional authority without much thought or explanation, to the detriment of its own constitutional authority. Such a state of affairs is quite contrary to the history and text of Article III of the U.S. Constitution. The Judicial Power of the United States — which must be understood to include all authority necessary to its own exercise — is vested exclusively in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Besides the power to try impeachments and regulate the appellate jurisdiction of the Supreme Court, Congress enjoys no part of the Judicial Power — neither explicitly nor through implication. As the historical evidence reveals, delegates to the Federal Convention considered and rejected language that would have given Congress authority to manipulate the jurisdiction of inferior federal courts and to direct the manner in which federal courts exercised their judicial authority. This fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the complete independence of the Judicial Branch from each of the other branches was of paramount importance, support an understanding of the Judicial Power that Article III's text makes manifest: beyond constituting inferior federal courts, Congress has no authority to direct the manner in which judicial business will be conducted nor is Congress given any authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III. The implications of this analysis are stark. Congressional enactments pertaining to judicial procedure are unconstitutional as is the Rules Enabling Act. The Supreme Court is fully empowered to engage in prospective rulemaking concerning the conduct of judicial business and practice before the federal courts without the blessing of Congress. Finally, because inferior federal courts possess the Judicial Power in full and, once constituted, may not be denied cognizance of cases and controversies falling within the scope of Article III's Judicial Power, jurisdiction-limiting statutes are unconstitutional.