Jurisdiction-stripping reconsidered

Virginia Law Review

Volumn 96, Issue 5, 2010, Pages 1043-1135

  Fallon Jr , Richard H ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 77957853174     PISSN: 00426601     EISSN: None     Source Type: Journal    
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References (581)

1. See, e.g., Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499, 1500-01 (1990) [hereinafter Amar, Two-Tiered Structure] ("[T]he issues implicated by the jurisdiction-stripping debate go to the very heart of the role of the federal courts in our constitutional order.").
2. The Federalist No. 37, at 197-98 (James Madison) (Clinton Rossiter ed., 1999); see also Henry Paul Monaghan, Doing Originalism, 104 Colum. L. Rev. 32, 38 n.37 (2004) ("Neither Madison nor anyone else believed that the document set out, once and for all, a clear set of rules.").
3. The Federalist No. 37 (James Madison), supra note 2, at 197.
4. Proposals to strip the federal courts of jurisdiction have been introduced regularly since the early nineteenth century. See Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 895-97 (1984).
5. See, e.g., INS v. St. Cyr, 533 U.S. 289, 299-300, 314 (2001);
6. Webster v. Doe, 486 U.S. 592, 603 (1988).
7. Pub. L. No. 109-366, 120 Stat. 2600 (2006) (codified in scattered sections of 10, 18, 28, and 42 U.S.C.).
8. -28 U.S.C. § 2241(e)(1) (2006).
9. -128 S. Ct. 2229 (2008).
10. U.S. Const, art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
11. Boumediene, 128 S. Ct. at 2248 (explaining that '"at the absolute minimum' the [Suspension] Clause protects the writ as it existed when the Constitution was drafted and ratified" (quoting St. Cyr, 533 U.S. at 301)).
12. See Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and The Federal System 1301-03 (6th ed. 2009) [hereinafter Fallon et al., Hart & Wechsler] (discussing the custody requirement).
13. -128 S. Ct. at 2251.
14. Id.
15. Id. at 2248.
16. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1401 (1953).
17. The relevant articles include Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 271-72 (1985) [hereinafter Amar, Neo-Federalist View];
18. Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 487 (1989);
19. Akhil Reed Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. Pa. L. Rev. 1651, 1673 (1990);
20. Akhil Reed Amar, Taking Article III Seriously: A Reply to Professor Freedman, 85 Nw. U. L. Rev. 442, 445 (1991);
21. Amar, TwoTiered Structure, supra note 1, at 1502-05.
22. See Louise Weinberg, The Article III Box: The Power of "Congress" to Attack the "Jurisdiction" of "Federal Courts," 78 Tex. L. Rev. 1405, 1422-24 (2000) (arguing that the Due Process Clause imposes more salient limits on Congress's power to curb federal jurisdiction than does Article III).
23. See, e.g., Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 727-39 (1988).
24. Michael J. Perry, Interpretivism, Freedom of Expression, and Equal Protection, 42 Ohio St. L.J. 261, 287 (1981).
25. See, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 858 (1986);
26. Crowell v. Benson, 285 U.S. 22, 65 (1932).
27. See, e.g., Crowell, 285 U.S. at 50-51 (distinguishing "public" from "private" rights and characterizing withdrawal of judicial jurisdiction in private rights cases as presenting unresolved constitutional issues).
28. See Richard H. Fallon, Jr., Implementing the Constitution 134-35 (2001) [hereinafter Fallon, Implementing];
29. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1252-68 (1987) [hereinafter Fallon, Constructivist Coherence].
30. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 6-8 (1982) (identifying modalities of constitutional argument).
31. See Fallon, Constructivist Coherence, supra note 22, at 1238-39.
32. See id. at 1240-43.
33. See id.
34. See id. at 1198-99;
35. Monaghan, supra note 2, at 32, 38.
36. Especially when constitutional interpretation proceeds in this way, the search for the Constitution's meaning will sometimes yield only relatively vague conclusions. In such cases, a further aspect of the judicial function involves the crafting of doctrinal tests to implement the Constitution's meaning. See Fallon, Implementing, supra note 22, at 41-42. Familiar examples include tests that inquire whether legislation has a rational basis, is necessary to promote a compelling government interest, or reflects a forbidden purpose. See id. at 77-79.
37. See Hart, supra note 15, at 1372.
38. See Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2038-39 (2007).
39. See Ex parte Bakelite Corp., 279 U.S. 438, 452 (1929);
40. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284 (1856) (explaining that "there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them,... but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper").
41. For a history of the public rights doctrine, see Gordon G. Young, Public Rights and the Federal Judicial Power: From Murray's Lessee Through Crowell to Schor, 35 Buff. L. Rev. 765, 772-89 (1986). The notion that benefits disputes involve public rights and do not necessarily require judicial review appears to be rooted partly in the concept of sovereign immunity.
42. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67 (1982);
43. Murray's Lessee, 59 U.S. (18 How.) at 284;
44. cf. Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 583-84 (2007) (asserting that benefits disputes were historically understood to involve "privileges" rather than "rights"). Whatever the underlying explanation, claims against the United States for money have long been understood to involve public rights.
45. See, e.g., Crowell v. Benson, 285 U.S. 22, 51 (1932) (characterizing claims to veterans' benefits as involving public rights);
46. Bakelite, 279 U.S. at 452.
47. See Bakelite, 279 U.S. at 452;
48. Murray's Lessee, 59 U.S. (18 How.) at 284;
49. see also Crowell, 285 U.S. at 50-51.
50. -347 U.S. 497, 500 (1954).
51. See generally Fallon et al., Hart & Wechsler, supra note 11, at 305-14 (exploring the pertinence of substantive constitutional rights, rights to remedies, and immunity doctrines to Congress's power to control jurisdiction).
52. -128 S. Ct. 2229 (2008).
53. -80 U.S. (13 Wall.) 128 (1872).
54. See Daniel J. Meltzer, Habeas Corpus, Suspension, and Guantánamo: The Boumediene Decision, 2008 Sup. Ct. Rev. 1, 1.
55. Military Commissions Act, Pub. L. No. 109-366, 120 Stat. 2600 (2006).
56. U.S. Const, art. I, § 9, cl. 2.
57. See, e.g., Boumediene, 128 S. Ct. at 2251 ("Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention.").
58. Justice Kennedy's majority opinion was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Chief Justice Roberts and Justices Scalia, Thomas, and Alito all joined the two dissenting opinions, one authored by the Chief Justice and the other by Justice Scalia.
59. Boumediene, 128 S. Ct. at 2248 (quoting INS v. St. Cyr, 533 U.S. 289, 301 (2001)).
60. Id.
61. Id.
62. Id. at 2297 (Scalia, J., dissenting) ("If [the issue is ambiguous], the Court has no basis to strike down the Military Commissions Act, and must leave undisturbed the considered judgment of the coequal branches.").
63. Id. at 2251 (majority opinion).
64. Id.
65. Id. at 2253.
66. Id. at 2258.
67. Id. at 2259. These considerations are all subsumed within what Justice Kennedy characterized as: [A]t least three factors... relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ. Id.
68. Id. at 2262.
69. Id. at 2259 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
70. Id. at 2270.
71. Id. at 2275 ("The only law we identify as unconstitutional is MCA § 7.").
72. See id. at 2251.
73. Id. at 2248. The Court had previously reserved the same question.
74. See INS v. St. Cyr, 533 U.S. 289, 300-01 (2001).
75. See, e.g., John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203, 204 (1997) (defining congressional power over jurisdiction by "[f]ocusing on the language of the Constitution, and ignoring as much as possible the gloss that has developed").
76. See Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 10 (2009) (so labeling the thesis that "whatever may be put forth as the proper focus of interpretive inquiry (framers' intent, ratifiers' understanding, or public meaning), that object would be the sole interpretive target or touchstone").
77. See John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. 371, 378-79 (2007) (maintaining that "some of the best evidence of [originally understood] meaning would be the expected applications, especially when widely held").
78. Useful surveys include Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239 (2009);
79. Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085 (1989);
80. Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 926-40 (2009);
81. Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub Pol'y 599 (2004).
82. For discussion of examples, see infra notes 115-32 and 227-231 and accompanying text.
83. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 Yale L.J. 541, 553 (1994);
84. Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859, 875 (1992).
85. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 398 (2002) (explaining that objective public meaning originalism requires "a hypothetical inquiry that asks how a fully informed public audience, knowing all that there is to know about the Constitution and the surrounding world, would understand a particular provision");
86. McGinnis & Rappaport, supra note 59, at 374 (maintaining that "the focus of originalism should be on how a reasonable person at the time of the Constitution's adoption would have understood its words and thought they should be interpreted" even in the case of provisions that "may have seemed ambiguous").
87. See Fallon & Meltzer, supra note 30, at 2080.
88. See Richard H. Fallon, Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. Rev. 1107, 1147-48 (2008).
89. See Larry Kramer, Two (More) Problems with Originalism, 31 Harv. J.L. & Pub. Pol'y 907, 915 (2008);
90. Adrian Vermeule, The Supreme Court, 2008 Term, Foreword: System Effects and the Constitution, 123 Harv. L. Rev. 4, 54-58 (2009).
91. See supra notes 22-27 and accompanying text.
92. See Solum, supra note 60, at 926-40 (identifying varieties).
93. Among the possible routes to this conclusion, some originalists believe that the original understanding determines constitutional meaning, but that courts must perform a further role of "construction" to furnish tests or standards to be applied in adjudication when the semantic meaning of the constitutional text is vague, ambiguous, or indeterminate. See, e.g., Randy E. Barnett, Restoring the Lost Constitution 121-25 (2004);
94. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 5 (1999).
95. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 138-40 (1997);
96. Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis, 93 Va. L. Rev. 1437, 1441 (2007);
97. Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155, 159 (2006).
98. See, e.g., Fallon et al., Hart & Wechsler, supra note 11, at 8;
99. Michael G. Collins, Article III Cases, State Court Duties, and the Madisonian Compromise, 1995 Wis. L. Rev. 39, 42.
100. Although the delegates at the Constitutional Convention agreed from the outset that their Constitution should provide for one Supreme Court, see Fallon et al., Hart & Wechsler, supra note 11, at 7, their debates about lower federal courts exhibited a remarkable volatility. After initially adopting language that would have made the establishment of lower federal courts mandatory, the Convention subsequently reversed itself and voted tentatively to preclude the establishment of any national tribunals other than the Supreme Court. See 1 The Records of the Federal Convention of 1787, at 125 (Max Farrand ed., 1911). Madison then made the compromise proposal that resulted in the current language of Article III, Section 1, which provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, §1 (emphasis added).
101. See William F. Duker, A Constitutional History of Habeas Corpus 126-80 (1980);
102. see also Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1509-10 (1987) (adopting Duker's reading);
103. Todd E. Pettys, State Habeas Relief for Federal Extrajudicial Detainees, 92 Minn. L. Rev. 265, 308-21 (2007) (same).
104. See sources cited supra note 73.
105. Hart, supra note 15, at 1401. The implication of Hart's view would have been that the Military Commissions Act was unconstitutional only insofar as it divested the state courts of their habeas corpus jurisdiction over petitions such as Boumediene's. A partial embarrassment to Hart's view is the Supreme Court's decision in Tarble's Case, 80 U.S. (13 Wall.) 397 (1872), discussed infra at notes 192-93 and accompanying text. But just as the Boumediene Court did not discuss Hart's well-known view, neither did it refer to Tarble's Case.
106. -5 U.S. (1 Cranch) 137 (1803).
107. Boumediene, 128 S. Ct. at 2259 (quoting Marbury, 5 U.S. (1 Cranch) at 177).
108. See, e.g., United States v. Morrison, 529 U.S. 598, 616 n.7 (2000) ("No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text.");
109. Baker v. Carr, 369 U.S. 186, 211 (1962) (describing the Supreme Court as the "ultimate interpreter of the Constitution");
110. Cooper v. Aaron, 358 U.S. 1, 18 (1958) ("[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.").
111. See, e.g., Morrison, 529 U.S. at 616-17 n.7;
112. United States v. Nixon, 418 U.S. 683, 704 (1974).
113. See Martin J. Katz, Guantanamo, Boumediene, and Jurisdiction-Stripping: The Imperial President Meets the Imperial Court, 25 Const. Comment. 377, 378 (2009) (asserting that Boumediene "should be understood as a case about the Court's vision of separation of powers... in which federal courts serve to keep the political branches within the bounds of the Constitution and ... the political branches cannot evade judicial review by manipulating jurisdiction");
114. Stephen I. Vladek, Boumediene's Quiet Theory: Access to Courts and the Separation of Powers, 84 Notre Dame L. Rev. 2107, 2110 (2009) ("Reading Boumediene, one is left with the distinct impression that for Justice Kennedy, at least, the writ of habeas corpus is in part a means to an end - a structural mechanism protecting individual liberty by preserving the ability of the courts to check the political branches.").
115. Boumediene's apparent separation-ofpowers theory is not a complete innovation. The Court has cited similar concerns, see, e.g., Baker, 369 U.S. at 211, as supporting its near evisceration of the political question doctrine, which once acknowledged that the political branches, not the courts, should resolve a variety of legal and constitutional questions.
116. See Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 240 (2002).
117. See, e.g., Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 227-28 (2004) (explaining the Court's accession to that status as a modern development).
118. See, e.g., id. at 98-99, 109 (describing a view common in the 1790s that judicial review should be employed "only where the unconstitutionality of a law was clear beyond doubt" and judicial interpretations were not necessarily binding on other branches).
119. For the argument that it would and should have significant influence, see Vladek, supra note 80, at 2146-50.
120. See Gunther, supra note 4, at 895-96 (summarizing thirty jurisdiction-stripping bills introduced in 1981 and 1982).
121. See, e.g., S. 158, 97th Cong. (1981).
122. See, e.g., H.R. 4756, 97th Cong. (1981) (proposing to strip federal courts of jurisdiction over cases "arising from any statute ... of any state ... that permits or facilitates voluntary prayer in any public school or public building").
123. See, e.g., H.R. 2389,109th Cong. § 2 (2006) (proposing to strip federal courts of jurisdiction over constitutional challenges to the Pledge of Allegiance).
124. See, e.g., Eugene Gressman & Erik K. Gressman, Necessary and Proper Roots of Exceptions to Federal Jurisdiction, 51 Geo. Wash. L. Rev. 495, 502-06 (1983).
125. Article III, Section 1 gives Congress the power but not the obligation to create lower federal courts. See supra note 72 and accompanying text.
126. Article III, Section 2 provides that the Supreme Court's appellate jurisdiction shall be subject to "such Exceptions... as the Congress shall make."
127. Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569,1569 (1990);
128. James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 Nw. U. L. Rev. 191, 195, 234-35 (2007).
129. See, e.g., Fallon et al., Hart & Wechsler, supra note 11, at 287 (differentiating and separately analyzing jurisdiction-stripping issues).
130. U.S. Const, art. III, §1 (emphasis added).
131. See supra notes 71-72 and accompanying text.
132. Although the First Judiciary Act accepted the invitation of the Madisonian Compromise to establish a system of lower federal courts, it vested the lower federal courts with far less than all of the jurisdiction that Article III would have permitted them to have. See William R. Casto, The First Congress's Understanding of Its Authority Over the Federal Courts' Jurisdiction, 26 B.C. L. Rev. 1101, 1110 (1985). In perhaps its most striking omission, the 1789 Act made no provision for general federal question jurisdiction.
133. See, e.g., Fallon et al., Hart & Wechsler, supra note 11, at 22;
134. William R. Casto, An Orthodox View of the Two-Tier Analysis of Congressional Control Over Federal Jurisdiction, 7 Const. Comment. 89, 93 (1990). Absent some more specialized grant of jurisdiction, cases presenting federal questions had to be litigated in state court, subject to Supreme Court review. (The Supreme Court's jurisdiction over state court decisions of federal questions was limited to those cases in which the state court had denied a claim of federal right. See Act of Sept. 24, 1789, § 25, 1 Stat. 73, 85-87.) Apart from a brief interlude under a short-lived statute enacted in 1801 and repealed in 1802, see Fallon et al., Hart & Wechsler, supra note 11,
135. at 744, it was not until 1875 that Congress conferred a general authorization for the lower courts to entertain "suits of a civil nature" arising under the Constitution, laws, and treaties of the United States, and even then it attached a $500 amount-incontroversy requirement.
136. See Act of Mar. 3, 1875, §1, 18 Stat. 470. Even today, "federal questions" generally cannot be litigated in the lower federal courts unless a federal question appears on the face of the plaintiff's well-pleaded complaint.
137. See, e.g., Franchise Tax Bd. of Cal. v. Constr. Laborers' Vacation Trust, 463 U.S. 1, 9-10 (1983) (describing the well-pleaded complaint rule). Since 1789, the jurisdictional statutes have always vested the lower federal courts with diversity jurisdiction, but that grant has consistently been subject to an amountin-controversy requirement. In 1789, the amount-in-controversy requirement was $500.
138. Act of Sept. 24, 1789, §11, 1 Stat. 73, 78-79. Today, it is $75,000. 28 U.S.C. § 1332(a) (2006).
139. In addition, the early case of Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806), construed the 1789 Act as requiring "complete diversity" when there are multiple parties on one or both sides of a case, even though Article III does not mandate this limitation.
140. See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530-31 (1967).
141. -49 U.S. (8 How.) 441 (1850).
142. See Henry M. Hart, Jr. & Herbert Wechsler, The Federal Courts and the Federal System 288 (1st ed. 1953).
143. See Act of Sept. 24, 1789, §11, 1 Stat. 73, 79.
144. Sheldon, 49 U.S. (8 How.) at 449.
145. The other case on which Hart relied most heavily to establish Congress's power to exclude cases from the lower federal courts was Lauf v. Shinner, 303 U.S. 323 (1938).
146. See Hart, supra note 15, at 1363 (relying on Sheldon and Lauf).
147. In applying a provision of the Norris-LaGuardia Act, ch. 90, H.R. Res. 5315, 72nd Cong., 47 Stat. 70 (1932) (codified as amended and repealed in part at 29 U.S.C. §§101-115 (2006)), that barred lower federal courts from enforcing socalled "yellow dog" contracts and from issuing injunctions in labor disputes, the Court said summarily in Lauf that "[t]here can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States." 303 U.S. at 330.
148. See, e.g., Paul M. Bator, Congressional Power Over the Jurisdiction of the Federal Courts, 27 ViIl. L. Rev. 1030, 1034 (1982);
149. Günther, supra note 4, at 916.
150. See, e.g., Günther, supra note 4, at 916;
151. Lawrence Gene Sager, The Supreme Court, 1980 Term-Foreword: Constitutional Limitations on Congress's Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17, 26 (1981);
152. Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts, 16 Harv. C.R.-C.L. L. Rev. 129, 132 (1981).
153. Cf. Amanda L. Tyler, The Story of Klein: The Scope of Congress's Authority to Shape the Jurisdiction of the Federal Courts, in Federal Courts Stories 87, 112 (Vicki Jackson & Judith Resnik eds., 2010) (ascribing this result to the principle, apparently rooted in Article III, "that Congress may not employ the courts in a way that forces them to become active participants in violating the Constitution").
154. See Fallon et al., Hart & Wechsler,
155. supra note 11, at 292;
156. Günther, supra note 4, at 916-22.
157. See Günther, supra note 4, at 917-18.
158. But cf. Tribe, supra note 101, at 141-49 (arguing that selective jurisdictional withdrawals impermissibly burden constitutional rights).
159. See U.S. Const, art. VI, cl. 2.
160. There is no statutory provision for removal in most such cases, and the doctrine of Younger v. Harris, 401 U.S. 37, 45-49 (1971), bars federal injunctions against pending state criminal prosecutions.
161. See generally Fallon et al, Hart & Wechsler,
162. supra note 11, at 1083-128 (discussing Younger abstention doctrine).
163. See Fallon et al., Hart & Wechsler, supra note 11, at 776-78 (discussing implications of the rule that makes federal jurisdiction depend on the contents of the plaintiff's well-pleaded complaint).
164. U.S. Const, art. III, §2, cl. 2.
165. See United States v. More, 7 U.S. (3 Cranch) 159, 172-74 (1805) (holding that Congress's failure to provide for appellate jurisdiction over federal criminal matters in the 1789 Judiciary Act barred such jurisdiction).
166. See Act of Sept. 24, 1789, §25, 1 Stat. 73, 85.
167. See, e.g., Bator, supra note 100, at 1036-37;
168. Günther, supra note 4, at 919-20.
169. -74 U.S. (7 Wall.) 506, 514 (1869).
170. Id.
171. See, e.g., Amar, Neo-Federalist View, supra note 16;
172. Sager, supra note 101.
173. See sources cited supra note 16.
174. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 327-31 (1816).
175. Article III, Section 2, Clause 1 provides: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all cases of Admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. U.S. Const, art. Ill, §2, cl.1.
176. See Amar, Neo-Federalist View, supra note 16, at 240-46.
177. Id. at 255.
178. Id. ("Congress may make exceptions to the Supreme Court's appellate jurisdiction in the mandatory categories, but only if it creates other Article III tribunals with the power to hear all the excepted cases.").
179. Id. at 255-59.
180. Id. at 242-45.
181. Id. at 259-65.
182. See Amar, Two-Tiered Structure, supra note 1, at 1511-13.
183. Meltzer, supra note 91. For a comparably searching and comprehensive critique of Amar's arguments,
184. see Harrison, supra note 57.
185. Meltzer, supra note 91, at 1575 (citing William A. Fletcher, Exchange on the Eleventh Amendment, 57 U. Chi. L. Rev. 131, 133 (1990)).
186. Id. at 1585-99.
187. Id. at 1585-93 (discussing Section 25 of the First Judiciary Act).
188. Id. at 1582-85.
189. Id. at 1621-22.
190. Strongly corroborative of that judgment is William A. Fletcher, Congressional Power Over the Jurisdiction of Federal Courts: The Meaning of the Word "All" in Article III, 59 Duke L.J. 929, 952 (2010), which concludes that the historical significance of the word "all" in reference to particular jurisdictional categories in Article III was to authorize Congress to vest exclusive jurisdiction in the federal courts if it so chose, not to mandate that some federal court must have jurisdiction of every case within those categories.
191. See, e.g., McGinnis & Rappaport, supra note 59, at 378-79.
192. See generally Ronald Dworkin, Law's Empire 52-55 (1986) (discussing the partial dependence of interpretive judgments on normative values).
193. See Fallon et al, Hart & Wechsler, supra note 11, at 744.
194. See Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 147-244 (2005) (describing controversies surrounding the scope of judicial power in the aftermath of the 1800 presidential election).
195. See Fallon, Constructivist Coherence, supra note 22, at 1237-51.
196. Prominent among the reasons is that exclusive originalism does not "state a workable ideal for a polity with an aged constitution and a robust tradition of judicial review that has produced a large body of nonoriginalist precedents." Fallon, Implementing, supra note 22, at 24. For statements of more affirmative reasons for taking practical workability and normative attractiveness into account,
197. see id. at 45-55; Fallon, Constructivist Coherence, supra note 22, at 1262-80.
198. Fallon, Implementing, supra note 22, at 45-55;
199. Fallon, Constructivist Coherence, supra note 22, at 1213.
200. See Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1115-18 (1977). For a review of the literature on the question of state court "parity" or lack thereof with federal courts,
201. see Fallon et al., Hart & Wechsler, supra note 11, at 278-83.
202. United States v. Morrison, 529 U.S. 598, 616-17 n.7 (2000).
203. See, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850 (1986) ("Article III, §1, safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts 'to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating' constitutional courts... and thereby preventing 'the encroachment or aggrandizement of one branch at the expense of the other.'" (
204. quoting Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 644 (1949) (Vinson, CJ., dissenting)));
205. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982) (plurality opinion) ("The Federal Judiciary was... designed by the Framers to ... maintain the checks and balances of the constitutional structure ....")
206. Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam).
207. See Gressman & Gressman, supra note 88, at 502-03, 505.
208. See, e.g., State Oil Co. v. Khan, 522 U.S. 3,20 (1997);
209. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994);
210. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989);
211. Thurston Motor Lines v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam).
212. But cf. Frederic M. Bloom, State Courts Unbound, 93 Cornell L. Rev. 501, 502-06 (2008) (arguing that state courts not infrequently contradict Supreme Court precedent and that the Supreme Court sometimes condones such action).
213. See, e.g., Paul M. Bator, Withdrawing Jurisdiction from Federal Courts, 7 Harv. J.L. & Pub. Pol'y 31, 33 (1984);
214. Steven G. Calabresi & Gary Lawson, Equity & Hierarchy: Reflections on the Harris Execution, 102 Yale L.J. 255, 276 n.106 (1992);
215. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 869 (1994) (arguing that "Supreme Court precedents should continue to bind lower courts" even if Congress enacted jurisdiction-stripping legislation);
216. Michael C Dorf, Prediction and the Rule of Law, 42 UCLA L. Rev. 651, 672-73 (1995);
217. Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 Vill. L. Rev. 900, 925-26 (1982);
218. Herbert Wechsler, The Courts and the Constitution, 65 Colum. L. Rev. 1001,1006 (1965).
219. But see Amar, Neo-Federalist View, supra note 16, at 258-59 n.170;
220. Leonard Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 Vill. L. Rev. 929, 937 (1982);
221. Charles E. Rice, Congress and the Supreme Court's Jurisdiction, 27 Vill. L. Rev. 959, 985(1982).
222. See John Harrison, The Power of Congress Over the Rules of Precedent, 50 Duke L.J. 503, 513-30 (2000).
223. Id. at 505.
224. See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1596-97 (2000) (suggesting that a congressional abrogation of stare decisis limited to abortion cases might be constitutionally acceptable).
225. See Fallon, supra note 65;
226. Richard H. Fallon, Jr., Precedent-Based Constitutional Adjudication, Acceptance, and the Rule of Recognition, in The Rule of Recognition and the U.S. Constitution 47, 59-60 (Matthew D. Adler & Kenneth Einar Himma eds., 2009) [hereinafter Fallon, Precedent-Based Adjudication];
227. Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570 (2001) [hereinafter Fallon, Stare Decisis].
228. See Fallon, Stare Decisis, supra note 149, at 578-82.
229. See id. at 579.
230. See Fallon, supra note 65, at 1128.
231. See id.
232. For expressions of the contrary, outlier view that precedent can never lawfully displace the Constitution's originally understood meaning, see, e.g., Randy E. Barnett, Trumping Precedent With Original Meaning: Not as Radical as It Sounds, 22 Const. Comment. 257 (2005),
233. Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23 (1994), and Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment. 289 (2005). The arguments of Fallon, Precedent-Based Adjudication,
234. supra note 149, at 50-55, and Fallon,
235. supra note 65, aim to show that the view that the Constitution's originally understood meaning is always constitutionally authoritative rests on untenable jurisprudential assumptions.
236. See Fallon, supra note 65, at 1130 n.84.
237. See Fallon, Precedent-Based Adjudication, supra note 149.
238. See Fallon, Constructivist Coherence, supra note 22, at 1202-04, 1260-62 (treating precedent as a constituent element of constitutional meaning).
239. See Fallon, Stare Decisis, supra note 149, at 591-92.
240. Jed H. Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061, 1063 (2010). "Recent studies demonstrate that elected judges face more political pressure and reach legal results more in keeping with local public opinion than appointed judges do."
241. Id. at 1064.
242. See, e.g., Bator, supra note 100, at 1030-31, 1036-37.
243. -74 U.S. (7 Wall.) 506 (1869).
244. See id. at 515 ("Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from the Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised."). The Court subsequently exercised jurisdiction under the previously existing statute in Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869).
245. -80 U.S. (13 Wall.) 128, 145 (1872).
246. See Act of Mar. 3,1863, §3, ch. 120,12 Stat. 820 (providing for compensation for property seized "on proof to the satisfaction of [the Court of Claims]... that [the property owner] has never given any aid or comfort to the present rebellion").
247. Klein, 80 U.S. (13 Wall.) at 132-33;
248. United States v. Padelford, 76 U.S. (9 Wall.) 531, 542-13 (1870).
249. See Act of July 12,1870, ch. 251,16 Stat. 230,235.
250. The first strand suggested that the challenged statute, although framed as a limitation on judicial jurisdiction, was in fact more substantive than jurisdictional.
251. See Klein, 80 U.S. (13 Wall.) at 146 ("The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction."). Congress, the Court said, lacked power to "prescribe rules of decision to the Judicial Department of the government in cases pending before it."
252. Id. But this assertion flatly contradicts both prior and subsequent cases that clearly recognize Congress's power to enact statutes prescribing rules of decision applicable to pending cases.
253. See, e.g., United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) ("[I]f subsequent to the judgment and before the decision of the appellate court, [an otherwise valid] law intervenes and positively changes the rule which governs, the law must be obeyed ...."). A second strand asserted a clear and unexceptionable basis for the decision: the Court found that the challenged congressional statute was unconstitutional because it impaired the effect of a presidential pardon, as established by one of the Court's precedents, and thus "infringfed] the constitutional power of the Executive."
254. Klein, 80 U.S. (13 Wall.) at 147.
255. Klein, 80 U.S. (13 Wall.) at 145-46.
256. For provocative analyses, see Martin H. Redish & Christopher R. Pudelski, Legislative Deception, Separation of Powers, and Democratic Process: Harnessing the Political Theory of United States v. Klein, 100 Nw. U. L. Rev. 437 (2006)
257. Lawrence G. Sager, Klein's First Principle: A Proposed Solution, 86 Geo. L.J. 2525 (1998);
258. Tyler, supra note 102.
259. Klein, 80 U.S. (13 Wall.) at 145.
260. See supra note 114 and accompanying text.
261. See Caleb Nelson, Judicial Review of Legislative Purpose, 83 N.Y.U. L. Rev. 1784, 1790-91 & nn.17-22 (2008).
262. Id. at 1790-91.
263. Id.
264. See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 532-33 (1993) (Free Exercise Clause);
265. Washington v. Davis, 426 U.S. 229, 240-41 (1976) (equal protection component of the Due Process Clause).
266. See generally Fallon, Implementing, supra note 22, at 89-95 (discussing purpose tests in constitutional law).
267. See Fallon, Implementing, supra note 22, at 93-95.
268. See, e.g., Calvin Massey, The Role of Governmental Purpose in Constitutional Judicial Review, 59 S.C L. Rev. 1, 35 (2007) (criticizing the Supreme Court for its "fractured pattern of consideration of purpose").
269. See, e.g., United States v. Darby, 312 U.S. 100, 115 (1941) ("The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Court places no restriction ....").
270. According to Massey, supra note 177, at 23-24, it is "partly, but not universally, true" that "courts would think governmental purpose less relevant to the judiciary's role in policing federalism limits on federal power and more relevant to questions of the scope of constitutional individual liberties."
271. See, e.g., Sager, supra note 101, at 74-77;
272. Tribe, supra note 101, at 151.
273. -129 S. Ct. 2108, 2116 (2009).
274. Id. at 2117.
275. -478 U.S. 833, 851 (1986).
276. Id. at 847.
277. See id. at 850 (quoting N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982)).
278. Id. at 851.
279. Id. at 850
280. (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976);
281. Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 644 (1949)).
282. In recent years, many thoughtful commentators-whose otherwise diverse positions are often linked under the rubric of "popular constitutionalism"-have argued for one or another kind of public role in, or influence on, constitutional interpretation.
283. See Helen Norton, Reshaping Federal Jurisdiction: Congress's Latest Challenge to Judicial Review, 41 Wake Forest L. Rev. 1003,1014-18 (2006) (linking defenses of jurisdiction-stripping legislation to the "popular constitutionalism" movement). Although I am reasonably sympathetic to some versions of popular constitutionalism, for Congress to invite state judicial defiance of Supreme Court authority seems a crude and possibly self-defeating way of promoting ultimate, authoritative settlements of constitutional issues that reflect the values of what Dean Kramer has called "the People themselves." See generally Kramer, supra note 81.
284. The question was presented but avoided in Elk Grove Unified School District v. Newdow, 542 U.S. 1, 5 (2004). The Court held that Newdow, who was a non-custodial parent suing on his daughter's behalf, lacked prudential standing to bring suit in federal court. Id. at 17-18.
285. -5 U.S. (1 Cranch) 137 (1803).
286. See, e.g., United States v. Morrison, 529 U.S. 598, 616-17 n.7 (2000);
287. Cooper v. Aaron, 358 U.S. 1, 18 (1958).
288. Hart, supra note 15, at 1363-64. Although Hart affirmed that state courts might sometimes be the ultimate guarantors, he appeared to believe that there were limits- which he did not pause to specify-to Congress's power to strip Supreme Court jurisdiction.
289. See Hart, supra note 15, at 1363-65 ("[T]he exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan.").
290. See, e.g., Morrison, 529 U.S. at 616-17 n.7;
291. Cooper, 358 U.S. at 18.
292. -80 U.S. (13 Wall.) 397 (1872).
293. See, e.g., Amar, supra note 73, at 1509-10; Collins, supra note 71, at 101-02;
294. Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 Colum. Hum. Rts. L. Rev. 555, 596 (2002);
295. see also Fallon et al, Hart & Wechsler, supra note 11, at 402-06.
296. See Fallon et al, Hart & Wechsler, supra note 11, at 407;
297. Martin H. Redish & Curtis E. Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. Pa. L. Rev. 45, 89 (1975).
298. See, e.g., Amar, supra note 73, at 1509;
299. see also Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L.J. 2537,2565 (1998).
300. See, e.g., Meltzer, supra note 197, at 2567 n.160 (observing that "the difficulties with... an interpretation [of Tarble's Case as holding that the Constitution forbids state courts to grant relief against federal officials even in the absence of federal court jurisdiction] are well known ... as is the possibility of interpreting the decision as a sub-constitutional one, resting on the existence (and implied exclusivity) of federal court habeas jurisdiction").
301. See supra Subsection II. A.3.
302. See supra Subsection II. A.2.
303. See supra notes 194-97 and accompanying text.
304. See supra notes 76-83 and accompanying text.
305. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 941 (1988) (observing that the Constitution "set[s] a higher fairness standard for the courts of the national government than it imposes on state courts").
306. Charles L. Black, Jr., The Presidency and Congress, 32 Wash. & Lee L. Rev. 841, 846 (1975).
307. U.S. Const, art. III, §2, cl. 2.
308. See Fallon et al., Hart & Wechsler, supra note 11, at 276-77.
309. See id. ("From 1789 to 1914, the Supreme Court had jurisdiction to review state court decisions of federal questions only if the state court had denied a claim of federal right.").
310. U.S. Const. art. III, §1, cl. 2.
311. U.S. Const, art. III, §1, cl. 1.
312. See Fallon et al., Hart & Wechsler, supra note 11, at 276-77.
313. See supra notes 78-79.
314. The term "legitimacy" has moral as well as legal and sociological dimensions.
315. See generally Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787 (2005) (distinguishing legal, moral, and sociological senses of legitimacy).
316. Black, supra note 204, at 846.
317. Hart, supra note 15, at 1365.
318. In an effort to give content to Hart's vaguely formulated standard, Leonard Ratner argued that Congress must not preclude the Supreme Court from assuring the supremacy and uniformity of federal law.
319. See Ratner, supra note 145, at 957.
320. But fed- eral supremacy is not much threatened in cases in which the lower federal courts retain their jurisdiction, even if the Supreme Court does not, and the conjunction of constitutional text-in the form of the Exceptions Clause-and history makes it hard to argue that the Supreme Court must have appellate jurisdiction to exercise de novo review of all lower court decisions of federal law. Among other pertinent evidence, the First Judiciary Act gave the Supreme Court no appellate jurisdiction in federal criminal cases.
321. See supra note 210. Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002, 1005, 1038 (2007), argue that the original public understanding of Article III would have required the Supreme Court to have either original or appellate jurisdiction of all cases arising under the Constitution, laws, and treaties of the United States. According to the authors, the Exceptions Clause was originally understood to permit exceptions to the Court's appellate jurisdiction only in cases in which Congress gave the Court original jurisdiction instead.
322. Id.
323. But Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803), decisively rejected the authors' view that Congress could permissibly add cases to the Court's original jurisdiction. In my view, it would be preposterous for the Court to overrule Marbury on this point, which has been settled for over two hundred years, on the basis of a disputable claim about the original understanding of Article III that would also entail the unconstitutionality of provisions of the 1789 Judiciary Act excepting cases from the Supreme Court's appellate jurisdiction.
324. See Hart, supra note 15, at 1364-66.
325. James E. Pfander, Jurisdiction-Stripping and the Supreme Court's Power to Supervise Inferior Tribunals, 78 Tex. L. Rev. 1433, 1435 (2000).
326. Id. at 1459-60 (equating "appellate" jurisdiction with "as-of-right" jurisdiction).
327. Id. at 1459-65.
328. Id. at 1441-42.
329. -518 U.S. 651 (1996).
330. PUb. L. No. 104-132, 110 Stat. 1217 (codified as 28 U.S.C. §2244(b)(3)(A) (2006)).
331. Id. (codified as §2244(b)(3)(E)).
332. Felker, 518 U.S. at 662.
333. The availability of habeas corpus review, Rehnquist said, "obviate[d]" the argument that AEDPA's jurisdictional withdrawal violated Article III. Felker, 518 U.S. at 661.
334. Id. at 667 (Souter, J., concurring).
335. David E. Engdahl, What's in a Name? The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L.J. 457,466-68 (1991).
336. Id. at 475.
337. Amar, Neo-Federalist View, supra note 16, at 221 n.60.
338. Calabresi & Lawson, supra note 215, at 1005, 1038-39.
339. Id. at 1005.
340. See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567 (2008).
341. See supra note 145 and accompanying text.
342. See Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. Pa. L. Rev. 741, 776 (1984).
343. See Fallon et al., Hart & Wechsler, supra note 11, at 290-91.
344. See Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 Yale L.J. 498, 501 (1974).
345. Id. at 507-10.
346. Id. at 510-13.
347. See generally Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993).
348. Subject only to rare exceptions, the statutory scheme generally makes no provision for removal, and the abstention doctrine of Younger v. Harris, 401 U.S. 37, 43-54 (1971), bars suits to enjoin pending state criminal prosecutions.
349. See Fallon et al., Hart & Wechsler, supra note 11, at 1083-128 (discussing Younger and related doctrines of equitable restraint).
350. See Fallon et al, Hart & Wechsler, supra note 11, at 777.
351. Examples include the Tax Injunction Act, 28 U.S.C. §1341 (2006), which limits federal courts' authority to issue injunctions in disputes about state taxes: the Johnson Act, 28 U.S.C. §1342 (2006), which similarly limits injunctions of state public utility rate orders;
352. and the abstention doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 31718 (1943), which holds that federal courts as a matter of sound equitable discretion should abstain from interfering with decisions of state administrative agencies involv- ing matters of special importance or sensitivity to the states. On the notoriously elusive contours and rationale of the Burford doctrine,
353. see Fallon et al, Hart & Wechsler, supra note 11, at 1075-79.
354. See Eisenberg, supra note 236, at 514-18.
355. Id. at 518-30.
356. See supra note 196 and accompanying text.
357. But cf. Fallon et al, Hart & Wechsler, supra note 11, at 405 (suggesting that Tarble's Case, 80 U.S. (13 Wall.) 397 (1872), which provides the lynchpin for the argument that state courts cannot compel certain official actions by federal officers, could be read as holding only that the affirmative conferral of federal court jurisdiction impliedly barred state court jurisdiction).
358. See Fallon et al, Hart & Wechsler, supra note 11, at 390-91.
359. See id. at 396-97.
360. -29 U.S.C. §§ 251-62(2006).
361. -29 U.S.C. § 252(a), (b) (2006).
362. -29 U.S.C. § 252(d) (2006).
363. This case is closely modeled on Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948).
364. This case is based on the holdings of Phillips v. Commissioner, 283 U.S. 589 (1931), and
365. Snyder v. Marks, 109 U.S. 189 (1883).
366. This case is based on Cary v. Curtis, 44 U.S. (3 How.) 236 (1845).
367. This case is based on Boumediene v. Bush, 128 S. Ct. 2229 (2008).
368. Cf. United States v. Erika, Inc., 456 U.S. 201, 211 n.14 (1982) (declining to entertain a constitutional challenge to the preclusion of all review of certain claims under the Medicare statute on the ground that they had not been raised properly under applicable Supreme Court rules).
369. See Fallon et al., Hart & Wechsler, supra note 11, at 392 ("Arguments in favor of exclusive federal jurisdiction frequently invoke the desirability of uniform interpretation of federal law.").
370. See id. at 397 ("Congress has provided since 1815 for the removal of state actions or prosecutions against federal officials likely to encounter sectional or state hostility.").
371. See Phillips v. Commissioner, 283 U.S. 589, 595-97 (1931);
372. Snyder v. Marks, 109 U.S. 189, 193-94 (1883).
373. As Part II also emphasized, however, the identification of prohibited motives can be tricky. I thus assume that Congress might preclude some remedies, such as injunctions against tax collection in Case 2, not because it wants to invite unconstitutional conduct by non-judicial officials, but to further important government interests such as those in the efficient administration of important government policies.
374. See Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1779 n.244 (1991).
375. See id. at 1779.
376. Hart, supra note 15, at 1366.
377. Indeed, for a federal court to pronounce on constitutional issues in a context in which it was evident from the outset that it could not order a remedy would violate the Article III prohibition against advisory opinions. See generally Fallon et al., Hart & Wechsler, supra note 11, at 52-58 (discussing advisory opinions).
378. See Fallon, supra note 203, at 962 (noting broad congressional power under the "public rights" doctrine to determine when and against whom a constitutional "case" arises);
379. James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. L. Rev. 643, 737 (2004) (interpreting dicta asserting congressional power to deny jurisdiction over suits against the government and its officers as "concerning the power of Congress to regulate the timing of judicial review in ways that permissibly advance the proprietary interests of the government").
380. Boumediene v. Bush, 128 S. Ct. 2229, 2259 (2008)
381. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
382. -169 F.2d 254 (2d Cir. 1948).
383. The Hart & Wechsler case book treats Battaglia as the leading case on congressional power to bar the exercise of jurisdiction over constitutional claims by any court. Fallon et al., Hart & Wechsler, supra note 11, at 305.
384. See Battaglia, 169 F.2d at 257 (citing cases).
385. Id.
386. Id. at 261-62.
387. Hart, supra note 15, at 1374-75 (discussing Crowell v. Benson, 285 U.S. 22 (1932)).
388. See, e.g., Redish & Woods, supra note 196, at 93 ("There exists a due process right to an independent judicial determination of constitutional rights.");
389. Vladek, supra note 80, at 2132 ("Battaglia suggested a model for how courts could decide... cases [involving total strips of judicial jurisdiction]: first reach the question whether the underlying legal claim has merit, and only then reach the possible unconstitutionality of the foreclosure of jurisdiction.").
390. See Bell v. Hood, 327 U.S. 678, 681-83 (1946).
391. See Fallon et al., Hart & Wechsler, supra note 11, at 308.
392. United States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872).
393. Hart, supra note 15, at 1366.
394. Id. at 1367-70.
395. Id. at 1369.
396. See Fallon et al, Hart & Wechsler, supra note 11, at 845 ("[I]t was historically taken for granted that sovereign immunity did not always or perhaps even typically bar suits against governmental officers.").
397. See id. at 312-13.
398. Hart, supra note 15, at 1367-68 (discussing Cary v. Curtis, 44 U.S. (3 How.) 236 (1845)).
399. See id. at 1369.
400. -44 U.S. (3 How.) 236 (1845).
401. Id. at 250 ("The claimant had his option to refuse payment... [and] was not without other modes of redress, had he chosen to adopt them.").
402. Hart, supra note 15, at 1369.
403. Id.
404. -5 U.S. 137, 163 (1803). Chief Justice Marshall wrote: The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.... The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. Id.
405. See Fallon & Meltzer, supra note 261, at 1778-79.
406. On official immunity doctrine, see generally Fallon et al, Hart & Wechsler, supra note 11, at 986-1011. Such doctrines seldom if ever preclude the issuance of injunctions against officials performing executive functions, other than the President of the United States.
407. See id. at 1009-11.
408. See Fallon & Meltzer, supra note 261, at 1779-86.
409. See id. at 1787-91.
410. See id. at 1789 ("[T]he aspiration to effective individual remediation for every constitutional violation represents an important remedial principle, but not an unqualified command.").
411. See id. at 1790.
412. See id. at 1789 ("What would be intolerable is a regime of public administration that was systematically unanswerable to the restraints of law.").
413. See Hart, supra note 15, at 1373.
414. See Yakus v. United States, 321 U.S. 414, 443-18 (1944);
415. cf. United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987) (holding that a court could not predicate criminal liability on a prior administrative determination where there had not been a meaningful opportunity for judicial review of the administrative rule).
416. See Hart, supra note 15, at 1378-79.
417. Professor Monaghan has dubbed the rule that a court cannot be required to enforce a constitutionally invalid rule the "valid rule requirement." Henry P. Monaghan, Harmless Error and the Valid Rule Requirement, 1989 Sup. Ct. Rev. 195 (1989);
418. Henry P. Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 4-14;
419. cf. John Harrison, Jurisdiction and Remedies: Congressional Power and Constitutional Remedies, 86 Geo. L.J. 2513, 2521-23 (1998) (arguing that nullification by an enforcement court is the only constitutionally necessary remedy for constitutional violations).
420. -128 S. Ct. 2229, 2248 (2008) (noting that '"at the absolute minimum' the [Suspension] Clause protects the writ as it existed when the Constitution was drafted and ratified" (quoting INS v. St. Cyr, 533 U.S. 289, 301 (2001))).
421. Absent a suspension of the writ, the status of habeas corpus as a constitutionally necessary remedy, when joined with the Marbury principle that a constitutionally invalid assertion of authority is not law at all, refutes the suggestion of Eugene Kontorovich, Liability Rules for Constitutional Rights: The Case of Mass Detentions, 56 Stan. L. Rev. 755, 813-32 (2004), that the constitutional rights that would be violated by mass detentions could be treated as "liability rules," which mandate post-deprivation compensation, rather than as "property rules," which presumptively authorize injunctive relief. On a petition for habeas corpus, the detaining officer must show legal justification for a detention, and if the purported justification is not a legally valid one, then the court must issue the writ.
422. S13 U.S. 106,111-14 (1994). To largely the same effect are a series of pie-Reich cases holding that state courts could not invoke non-retroactivity principles to deny refunds of tax payments exacted under laws subsequently held to be unconstitutional.
423. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 100 (1993);
424. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991);
425. Am. Trucking Ass'ns v. Smith, 496 U.S. 167, 188 (1990).
426. Alden v. Maine, 527 U.S. 706,712 (1999) (holding that a state may invoke sovereign immunity to preclude non-consented suits against it by private parties for violations of federal law in state as well as federal court).
427. See id. at 740.
428. -482 U.S. 304, 314-16 (1987).
429. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714 (1999).
430. -403 U.S. 388, 397 (1971).
431. Although 42 U.S.C. §1983 creates a cause of action against state officials who violate federal constitutional rights, there is no comparable statutory provision creating a cause of action against federal officials who violate the Constitution.
432. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
433. Id.
434. (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)).
435. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).
436. -209 U.S. 123 (1908).
437. See Fallon et al., Hart & Wechsler, supra note 11, at 891.
438. Young, 209 U.S. at 148.
439. Fallon et al, Hart & Wechsler, supra note 11, at 891.
440. The requisites for injunctive relief also include an equitable calculus involving the balance of public and private interests. See, e.g., United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 496-97 (2001);
441. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982).
442. John Harrison, Exparte Young, 60 Stan. L. Rev. 989, 990 (2008).
443. See id. at 998-1000. Although Professor Harrison cites a number of treatises supporting his claim on this point, he does not identify any square rulings by the Supreme Court prior to Ex parte Young that actually upheld an anti-suit injunction.
444. See supra note 312 and accompanying text.
445. See, e.g., United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 457, 480 (1995) (upholding injunctive relief to protect government employees' First Amendment rights);
446. Flast'v. Cohen, 392 U.S. 83, 103 (1968) (upholding plaintiffs' standing to sue to enjoin an alleged Establishment Clause violation).
447. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 653 (1975) (gender discrimination);
448. Boiling v. Sharpe, 347 U.S. 497, 500 (1954) (race discrimination).
449. See, e.g., United States Dep't of Agric, v. Murry, 413 U.S 508, 514 (1973).
450. See Hart, supra note 15, at 1366.
451. -347 U.S. 483 (1954).
452. See Fallon et al, Hart & Wechsler, supra note 11, at 724; Kontorovich, supra note 299, at 818-20 (discussing "the obscure origins" of the "injunctive essentialis[t]" assumption that injunctions are the normal and mandatory remedy for constitutional rights violations).
453. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1947-18 (2009).
454. -347 U.S. 497, 500 (1954).
455. -515 U.S. 200, 235 (1995).
456. Hart, supra note 15, at 1371.
457. See, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988);
458. Bowen v. Mich. Acad, of Family Physicians, 476 U.S. 667, 681 n.12 (1986);
459. Johnson v. Robison, 415 U.S. 361, 366-67 (1974).
460. See Webster, 486 U.S. at 611-12 (Scalia, J., dissenting).
461. See id. at 611-14.
462. -347 U.S. 483, 493 (1954).
463. E.g., Pickering v. Bd. of Educ, 391 U.S. 563, 565 (1968).
464. E.g., Goldberg v. Kelly, 397 U.S. 254, 261 (1970).
465. See, e.g., Ex parte Young, 209 U.S. 123, 155-56 (1908) ("[Individuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.").
466. Crowell v. Benson, 285 U.S. 22, 87 (1932) (Brandeis, J., dissenting).
467. See, e.g., Amar, Neo-Federalist View, supra note 16, at 212-16;
468. Günther, supra note 4, at 914-16.
469. See generally Fallon et al., Hart & Wechsler, supra note 11, at 36-47 (collecting data on non-Article III and on Article III judges and dockets). In perhaps the most striking indication of the current practical significance of adjudication by non-Article III federal tribunals, "the Social Security Administration alone conducts roughly 650,000 hearings per year - a caseload larger than the civil docket of all Article III courts combined."
470. Id. at 39.
471. See, e.g., Judith Resnik, Rereading "The Federal Courts": Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vand. L. Rev. 1021, 1027-31 (1994).
472. Louis Jaffe, Judicial Control of Administrative Action 320 (1965) (noting that judicial review is a "necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid").
473. See Richard J. Pierce, Jr. et al., Administrative Law and Process 133 (4th ed. 2004) ("Congress has expressly provided a statutory right to judicial review of most agency actions, either by including such a right in the organic act that authorizes the agency to take the challenged action or by making the agency's action subject to the judicial review provisions of the Administrative Procedure Act.");
474. see also Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986) ("We begin with the strong presumption that Congress intends judicial review of administrative action.").
475. Many statutes specifically authorize judicial review of administrative action at the be- hest of aggrieved private parties. The Administrative Procedure Act, 5 U.S.C. §§551 59, 701-06 (2006), which Congress enacted in 1946, provides a more general authorization, albeit one subject to some exceptions. These include exceptions for cases in which "statutes preclude judicial review,"
476. id. §701(a)(1),
477. and "agency action is committed to agency discretion by law,"
478. id. §701(a)(2).
479. -467 U.S. 837, 838, 844 (1984).
480. See generally Pierce et al., supra note 341, at 119-26 (describing how courts "typically review three aspects of agency decisions- Conclusions of law, findings of fact, and procedures used in the decision-making process").
481. See Fallon et al, Hart & Wechsler, supra note 11, at 36-39 (surveying legislative courts).
482. Fallon, supra note 203, at 917.
483. Id. at 918, 933.
484. See id. at 943-49.
485. Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008).
486. See Pfander, supra note 265, at 749-57, 775.
487. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51-55 (1989).
488. See generally Fallon et al., Hart & Wechsler, supra note 11, at 367-73 (surveying issues presented by United States participation in treaties and conventions that contemplate use of non-Article III international tribunals).
489. See generally id. at 363-67 (discussing powers of magistrate judges and surrounding constitutional questions).
490. My reason for not discussing territorial courts is that they play a role that is partly, though not wholly, analogous to that of state courts.
491. See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984) ("Article III of the Constitution confines the federal courts to adjudicating actual 'cases' and 'controversies.'").
492. See, e.g., Bernard Schwartz, Administrative Law 98-99 (3d ed. 1991).
493. -163 U.S. 228, 229, 237-38 (1896).
494. Id. at 238.
495. See Pfander, supra note 265, at 715-17.
496. See David J. Bederman, Article II Courts, 44 Mercer L. Rev. 825, 834-35 (1993).
497. Apart from habeas, the provisions for judicial review of courts martial are quite limited. Following review within the military chain of command, current law provides for review by an Article I Court of Appeals for the Armed Forces,
498. see 10 U.S.C. §§ 941-42 (2006), the decisions of which are reviewable on certiorari by the Supreme Court, 28 U.S.C. §1259 (2006).
499. See generally Note, Military Justice and Article III, 103 Harv. L. Rev. 1909, 1912-18 (1990) (describing provisions for and history of judicial review of decisions of military courts). Under Boumediene, the requisite scope of habeas review may vary with the extent of the procedural safeguards that a military tribunal provides.
500. See Boumediene v. Bush, 128 S. Ct. 2229, 2267-69 (2008).
501. For a pre-Boumediene analysis of the minimal requisites of habeas review of detentions authorized by military commissions, see Fallon & Meltzer, supra note 30, at 2095-111.
502. -128 S. Ct. at 2248.
503. See id. at 2266-71 (noting that "common-law habeas corpus was, above all, an adaptable remedy" and surveying a variety of historical and modern authorities in discussing the necessary scope of review of decisions by military tribunals).
504. See Fallon & Meltzer, supra note 30, at 2067.
505. See Thomas Alexander Aleinikoff et al., Immigration Process and Policy 582-629 (3d ed. 1995) (describing administrative procedures for removal of aliens).
506. See Boumediene v. Bush, 128 S. Ct. 2229, 2269-77 (2008);
507. see also INS v. St. Cyr, 533 U.S. 289, 308-14 (2001).
508. -533 U.S. at 308-14 (2001).
509. Many questions about the necessary scope of habeas review remain unanswered, partly because of historical uncertainties and partly because Boumediene, in particular, suggested that context matters greatly.
510. See 128 S. Ct. at 2267-71.
511. -285 U.S. 22, 50-65 (1932).
512. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851-52 (1986).
513. -285 U.S. at 51.
514. See Fallon et al, Hart & Wechsler, supra note 11, at 334-35.
515. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984);
516. Pierce et al., supra note 341, at 383-88.
517. See, e.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231-36 (1994).
518. See, e.g., Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284 (1856)
519. ("[W]e do not consider [that] congress can ... withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty ....").
520. The central case is Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 857 (1986),
521. which upheld the constitutionality of the exercise of pendent jurisdiction over a state law claim by the Commodity Futures Trading Commission, but did so only after, first, relying on the parties' consent to obviate fairness concerns,
522. id. at 848-50,
523. and second, conducting an elaborate multi-factor analysis to assure itself the scheme under review posed no undue threat to separation-of-powers values,
524. id. at 850-57.
525. The decision left it entirely unclear whether pendent jurisdiction would be constitutionally acceptable in the absence of consent.
526. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 50 (1989);
527. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 52 (1982).
528. The best defense of an originalist or quasi-originalist approach of which I know is Nelson, Adjudication, supra note 31, which reads Article III through the lens of nineteenth-century legal categories. According to Professor Nelson, legal thought and doctrine of that era drew a sharp distinction between "private rights" disputes, any adjudication of which was an inherently judicial act that Congress could assign only to Article III courts, and disputes involving "public rights" and "privileges," the adjudication of which could be viewed as "execution" of the law assignable to administrative agencies.
529. Id. at 566-72.
530. Although Nelson appears to believe that continued adherence to the nineteenth-century framework would be functionally beneficial in categorically barring Congress from diminishing judicial protection of "private rights,"
531. see id. at 609,
532. his formalist quasi-originalism grows selective when he acknowledges that "[statutory entitlements" that would historically have fallen in the category of privileges "trigger the modern doctrine of procedural due process" that might sometimes require judicial review of administrative action.
533. See id. at 626, 626 n.259.
534. In addition, Nelson can rationalize agency adjudication in private rights cases such as Crowell v. Benson only by adopting the plain fiction that agency decisionmakers function as "adjuncts" to Article III courts rather than as independent adjudicators. See id. at 601-02. Although Nelson makes an impressive case that residues of nineteenth-century legal thought exert a continuing, often unrecognized influence on modern doctrine,
535. see id. at 613-24,
536. I fail to understand why that influence should be categorically conclusive in some cases, such as those involving pendent agency jurisdiction over state law claims, but not in others.
537. See Fallon et al, Hart & Wechsler, supra note 11, at 362-63.
538. See Schor, 478 U.S. at 851.
539. The question whether an action before an agency is a "suit at common law" subject to the Seventh Amendment can itself be an intricate one.
540. See Fallon et al, Hart & Wechsler, supra note 11, at 361-62 (summarizing leading cases).
541. Cf. N. Pipeline Constr. Co., 458 U.S. at 90 (Rehnquist, J., concurring) (concluding that Congress could not assign to an Article I bankruptcy court common law claims that "are the stuff of the traditional actions... tried by the courts at Westminster in 1789"). There should be no practical ground for concern that Congress threatens the constitutionally central role of the Article III courts when it provides for agency adjudication of a small set of state law claims, many of which, because they do not arise under federal law, would afford no independent basis for original jurisdiction in an Article III court anyway.
542. -320 U.S. 549, 554 (1944).
543. -327 U.S. 114, 119-20 (1946).
544. Id. at 122.
545. See Nelson, supra note 31, at 596-98.
546. -481 U.S. 828,838 n.15 (1987).
547. Cf. Lockerty v. Phillips, 319 U.S. 182, 189 (1943) (citing statutory severability as a ground for not needing to rule on whether the Constitution mandates the availability of interlocutory relief pending final adjudication of the validity of regulations enforceable by criminal penalties and treble damages).
548. See supra note 342 and accompanying text. Chevron deference can apply even in cases in which statutes impose criminal penalties for the violation of regulations and the validity of regulations under a statute is the question in issue.
549. See Sanford N. Greenberg, Who Says It's a Crime? Chevron Deference to Agency Interpretations of Regulatory Statutes That Create Criminal Liability, 58 U. Pitt. L. Rev. 1, 40 (1996).
550. See, e.g., Phillips v. Comm'r, 283 U.S. 589, 595-97 (1931);
551. Snyder v. Marks, 109 U.S. 189, 194 (1883).
552. See, e.g., Phillips, 283 U.S. at 599;
553. Springer v. United States, 102 U.S. 586, 593-94 (1880).
554. See Ex parte Bakelite Corp., 279 U.S. 438, 458 (1929).
555. -59 U.S. (18 How.) 272, 284 (1856).
556. Id.
557. See Fallon et al., Hart & Wechsler, supra note 11, at 332-33.
558. Peter L. Strauss, The Place of the Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 632 (1984) (original emphasis omitted).
559. See Pfander, Article I Tribunals, supra note 265, at 731-38.
560. See supra notes 275-294 and accompanying text.
561. The Administrative Procedure Act provides that agency decisions are unreviewable when a statute expressly precludes judicial review, 5 U.S.C §701(a)(1) (2006), and when a decision is "committed to agency discretion by law," id. §701(a)(2).
562. See Fallon et al., Hart & Wechsler, supra note 11, at 735-40 (describing "retrenchment" from Bivens).
563. Such preclusion would be consistent with early historical practice. For example, the first Congress established a scheme for the payment of pensions to veterans of the Revolutionary War.
564. See Act of Sept. 29, 1789, ch. 25, 1 Stat. 95. Although the Constitution would have permitted the assignment of disputed claims to Article III courts for authoritative resolution, early Congresses consistently withheld federal jurisdiction of cases in which the government would have been a defendant.
565. See Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 430 (1990) ("Congress' early practice was to adjudicate each individual money claim against the United States, on the ground that the Appropriations Clause forbade even a delegation of individual adjudicatory functions where payment of funds from the Treasury was involved.");
566. Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 Geo. Wash. Int'l L. Rev. 521, 576 n.206 (2003) (citing William Cowen et al., The United States Court of Claims, a History Part II: Origin, Development, Jurisdiction, 1855-1978, at 5 (1978)).
567. See, e.g., Heckler v. Mathews, 465 U.S. 728, 744-46 (1984);
568. U.S. Dep't of Agric, v. Moreno, 413 U.S. 528, 534-35 (1973).
569. See, e.g., Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality opinion).
570. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 261-63 (1970).
571. Boiling v. Sharpe, 347 U.S. 497, 500 (1954).
572. See, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988);
573. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986);
574. Johnson v. Robison, 415 U.S. 361, 366-67 (1974).
575. See Richard H. Fallon, Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev. 309, 333-37 (1993).
576. -128 S. Ct. 2229 (2008).
577. -80 U.S. (13 Wall.) 128, 147 (1872).
578. -74 U.S. (7 Wall.) 506, 514 (1869).
579. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring).
580. Hart, supra note 15, at 1366.
581. Boiling v. Sharpe, 347 U.S. 497, 500 (1954).