For several decades, the idea of legislation to remove some issues from the jurisdiction of the federal courts has circulated mostly on the right. During the George W. Bush administration, for example, the House twice voted to block federal courts from reviewing the constitutionality of state and local policies requiring the recitation of the Pledge of Allegiance.
Now, as David Yaffe-Bellany writes for Bloomberg Businessweek, the idea is winning favor on the Left — and some conservatives are calling it “extreme.”
This migration of interest is obviously a response to rising conservative strength on the federal bench. (I wrote about the phenomenon around the time of Justice Brett Kavanaugh’s confirmation.) I’m happy to welcome left-wingers to the cause of cutting the power of the federal courts down to size, and I believe the case that Congress can legitimately and sometimes should remove issues from their jurisdiction is a strong one.
I’d note, though, that there’s a limit to limits on jurisdiction. If Congress passes a statutory provision that requires federal judicial cooperation for its effect, I don’t see how Congress can then also make it impossible for the courts to review the constitutionality of that statute. In the case of a law that conflicts with the Constitution, requires the federal courts to give it to effect, and attempts to insulate the provision from judicial review, the courts would, I think, be duty-bound not to implement the provision — which limits the potential harm from jurisdiction-stripping.
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