C. The Constitutional Permissibility of Jurisdiction Stripping
Debates about the constitutional limits on Congress’s power to restrict the jurisdiction of the Supreme Court, the lower federal courts, and the state courts have generated an enormous literature that was described decades ago as already “choking on redundancy.”[54] Here we can do no more than highlight some areas of virtual consensus among scholars and identify some of the issues that different types of jurisdiction-stripping legislation would pose.
1. Sources of Congress’s Regulatory Power
In order to enact jurisdiction-stripping legislation, Congress must be able to point to a specific source of authority within the Constitution. Insofar as legislation restricting the appellate jurisdiction of the Supreme Court is concerned, power would come from the Exceptions Clause, as discussed in Section I.A, possibly in conjunction with the Necessary and Proper Clause.[55]
Where jurisdiction-stripping legislation also extends to the lower federal courts, a prima facie source of authority lies in Article III’s Judicial Vesting Clause, which provides that Congress “may from time to time ordain and establish” tribunals “inferior” to the Supreme Court.[56] Traditional understandings hold that the power to create lower courts includes a power to prescribe and limit their jurisdiction. If a further source of authority were needed, the Necessary and Proper Clause may provide it.
Insofar as Congress might seek to restrict state court jurisdiction in conjunction with a restriction on the appellate jurisdiction of the Supreme Court, its authority would rest solely on the Necessary and Proper Clause. Congress could deprive the state courts of jurisdiction to entertain a constitutional challenge to state or federal legislation only if doing so was “necessary and proper for carrying into Execution” one of the powers of the federal government,[57] which presumably would include making effective or viable Congress’s restraints on the Court’s appellate jurisdiction.
Finally, we note that jurisdiction-stripping legislation might have a spillover impact on the Supreme Court’s original jurisdiction. Because the Supreme Court’s Article III original jurisdiction extends to cases “in which a State shall be [a] Party,” any case brought by a state could potentially be filed under the Court’s original jurisdiction.[58] For instance, the landmark voting rights case of South Carolina v. Katzenbach,[59] which upheld the Voting Rights Act against a broad constitutional challenge, was brought within the Court’s original jurisdiction. We note that states have filed several high-profile challenges to federal policies in recent
