1. Constitutional Law Spring 2008 Professor Fischer Class 7: Limits on the Federal Judicial Power: The Exceptions and Regulations Clause and Jurisdiction Stripping

2. Review: Ripeness Supreme Court considers 2 issues to determine whether a case is ripe:’ 1. Hardship to parties of withholding court considerations (seems constituional) 2. fitness of issues for judicial decision – if issues are more factual will be denied preenforcement review (seems prudential) Probably both requirements are required, but not entirely clear how interrelated they are

3. Review: Mootness Exceptions: 1. Wrongs Capable of Repetition Yet Evading Review 2. Voluntary Cessation – Friends of the Earth v. Laidlaw (2000): narrow exception 3. Class Actions – Court has taken a flexible approach to allow properly certified class actions to continue even where named plaintiff’s claims become moot

4. U.S. Parole Commission v. Geragty Prisoner denied parole based on Parole Commission’s guidelines wanted to bring a class action suit to challenge the guidelines District court refused to certify class action Prisoner then released from prison Was the case moot even though a class action was never certified?

5. JURISDICTION STRIPPING What is this? Why would Congress try to do it? It raises separation of powers concerns

6. Examples of jurisdiction-stripping bills

7. Pledge Protection Act of 2005 (passed by House 2006) Marriage Protection Act of 2004 (passed by House 2004) Detainee Treatment Act 2005 see Hamdan case Military Commissions Act of 2006 see Boumediene case

8. The Exceptions and Regulations Clause

9. Article III § 2: Supreme Court has appellate jurisdiction “both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” To what extent does the TEXT of this provision authorize the Congress to limit the Court’s appellate jurisdiction?

10. PRECEDENT: Ex parte McCardle (1868) [C p. 25] Who was William McCardle? What were the substantive and jurisdictional issues in his case?

11. Ex parte McCardle (1868) [C p. 25] Substantive issue: Was the imprisonment of McCardle under the Military Reconstruction Act violate the Constitution?

12. Ex parte McCardle (1868) [C p. 25] Jurisdictional issue: Did the Supreme Court have power to hear McCardle’s appeal after the enactment in March 1868 (over President Johnson’s veto) of a statute repealing the 1867 statute giving federal courts the power to grant habeas corpus relief to prisoners in state or federal custody AND authorizing Supreme Court appellate review of writs of habeas corpus

13. Ex parte McCardle How did the Court rule on the jurisdictional issue? (Opinion of Chief Justice Salmon CHASE)

14. Ex parte McCardle (1868) Does this precedent establish that Congress can preclude Supreme Court review of certain issues (eg abortion, school prayer)

15. Ex parte McCardle (1868) Why didn’t the Court review the constitutionality of McCardle’s imprisonment based on the 1789 Judiciary Act?’ See ex parte Yerger (1868), decided shortly after McCardle.

16. Ex parte Yerger (1869) What justiciability doctrine precluded substantive review of Yerger’s constitutional claims challenging Reconstruction?

17. PRECEDENT: Ex parte Klein (1871) Was the statute providing that pardons were inadmissable as evidence in claims for return of seized property constitutional? Why or why not?

18. Ex parte Klein (1871) Under Klein, can Congress restrict the Supreme Court’s jurisdiction in specific areas, such as abortion or school prayer?

19. Robertson v. Seattle Audubon Society (1992) On what basis did the Court find Klein distinguishable?

20. POLICY ARGUMENTS What policy arguments can be made in support of the power of Congress to limit Supreme Court jurisdiction under the Exceptions and Regulations Clause? What are competing policy arguments?