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Sunday, December 04, 2005

A Congress Obsessed With Federal Jurisdiction

My original thought for a fun Sunday afternoon bloawg topic was to have been the Bowl Championship Series, both in light of the announcement of the pairings (man, did Oregon get screwed!), and Friday's news that Congress plans to hold hearings this week on the BCS and the possibility of implementing some kind of playoff structure for Division I-A football.

But the more I thought about it (and the more annoyed I got with the thought that Congress surely has better things to do than this), the more I kept coming back to a completely different topic -- the 109th Congress's obsession with federal jurisdiction.

This is, of course, slightly tongue-and-cheek, but only slightly. After all, I certainly can't remember a recent Congress that devoted so much of its time, energy, and Public Laws to statutes primarily designed either to expand or contract federal jurisdiction, and this while the Graham Amendment is still in Conference!

A short list should hopefully prove the point: Four of the first 13 statutes enacted by the 109th Congress were at least largely jurisdictional. (Yes, we can fight about what "largely" means, but I think that classification for the Acts on this list is fairly uncontroversial):

Public Law No. 109-2
is better known as the Class Action Fairness Act of 2005, which dramatically expands the basis for federal jurisdiction over class actions based on state law.

Public Law No. 109-3
is the "Bill to Provide for the Relief of the Parents of Theresa Marie Schiavo." 'Nuff said.

Public Law No. 109-8 is the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which, although not as directly jurisdictional, significantly narrows the availability of federal bankruptcy protection, and therefore federal bankruptcy jurisdiction, for an entire class of debtors.

Finally, at least within the first wave, is the REAL ID Act of 2005, part of Public Law No. 109-13, the judicial review provisions of which [section 106 of division B] dramatically reorganize federal jurisdiction in immigration cases, and arguably strip habeas jurisdiction in entire classes of immigration appeals.

(Plausibly, one could also add Public Law 109-63 -- the "Federal Judiciary Emergency Special Sessions Act of 2005" to this list, except there probably isn't as much debate over the need for it as for the others noted above.)

Anyway, my point in all of this is that, at the same time as the Graham Amendment, with its attendant effects on habeas jurisdiction for Guantanamo detainees, makes its way through Conference, Congress also held hearings last month on the so-called "Streamlined Procedures Act of 2005," which, as proposed, would further narrow federal court jurisdiction over habeas petitions brought by state prisoners (especially in capital cases), and would impose time limits on action by the federal courts... [Hat Tip: Daily Kos].

The stated justification for the Streamlined Procedures Act, just like the justification for the Graham Amendment, and for the judicial review provisions of the REAL ID Act, is that the federal courts are simply too overworked, and habeas petitions and immigration cases are simply too high a percentage of the dockets of these courts, and take too long to decide. [As typified in Sen. Cornyn's testimony at the Senate Committee hearings.] In the main, these arguments provide good support for the notion that the particular obsession of the 109th Congress with federal jurisdiction is not only appropriate, but could redound to the benefit of the court system, and even individual litigants.

And I'm by no means immune to these arguments. Indeed, I agree with their basic premise -- that federal courts are too overworked, and that narrowing the class of cases in the federal courts is the most principled, systematic means of reducing the workload.

But at the same time, the Class Action Fairness Act significantly _expands_ federal jurisdiction (in a class of extremely complex cases), even though most plaintiffs would not need the Act to bring such suits under the Supreme Court's June decision in Exxon Mobil v. Allapattah Services. So, at least to some degree, the purported justification isn't reconcilable with Congress's own actions.

Also at the same time, we see the reports of the high error rate in at least one of the classes of cases Congress has targeted for elimination, or at least significant reduction -- immigration appeals -- and the absence of a serious flood of cases in Guantanamo-related litigation, the target of the Graham Amendment.

I guess my bottom-line point, then, is whether, if the real problem is workload, we would do well to have a serious conversation about how best to reduce it (and, oh, I don't know, maybe include the judges themselves in that conversation?) Maybe it's time to once again have a real fight about federal diversity jurisdiction. Maybe Will is right that we need more specialized courts to handle the more complicated cases. Maybe we need to accept that the federal judiciary needs to significantly expand in size. (Ugh.)

But to attack federal jurisdiction piecemeal, and by targeting habeas, immigration law, and other areas where the litigants are often quite unpopular in the public eye, the merits of their claims notwithstanding (and where state courts are almost never available, so the jurisdiction-stripping is absolute), strikes me as dangerously myopic. There's a good line in Hart & Wechsler about how the instances of congressional jurisdiction-stripping have been few and far-between in American history, and perhaps for very good reason.

Posted by Steve Vladeck on December 4, 2005 at 06:25 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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Comments

Dear Steve,

How, exactly, did "Oregon get screwed"?

Go Irish . . .

Posted by: Rick Garnett | Dec 5, 2005 7:48:03 PM

I take your point about CAFA; I guess it just seems inconsistent with the "the sky is falling on the federal courts" mentality underriding some of the other jurisdiction-limiting measures.

As for the Ninth Circut's "systematic attempt to abolish the death penalty," I guess I just take issue with your characterization of the opinions as "dishonest." If one accepts that the death penalty is fraught with at least the potential for serious constitutional difficulties, then a jurisprudence that is somewhat less deferential to the states than the states might themselves prefer hardly seems "dishonest." And even the so-called "liberal" judges on the Ninth Circuit routinely uphold the use of the death penalty, their own (fairly clear) personal feelings notwithstanding. [As typified, I think, by my former boss's concurrence in the Dennis case.]

Is there a bad opinion or two out there? For sure. But to call an entire lot of judges (and class of cases) "dishonest" strikes me as, itself, dishonest.

Posted by: Steve Vladeck | Dec 5, 2005 5:07:16 PM

All CAFA really adds is a requirement of only minimal diversity, which, at least thus far, has meant that it's been used more frequently as a basis for removal than as a basis for initial filing (although, to be fair, there may be selection bias based on timing).

You say this like it's a bug, rather than a feature.

I don't have any praise for the Fifth Circuit's refusal to follow precedent. I merely note that the Ninth Circuit's (and, to a lesser extent, the Third Circuit's) systematic attempt to abolish the death penalty through dishonest judicial opinions is directly responsible for the Congressional reaction. Congress's only other option to limiting judicial discretion is impeachment, which has its own flaws.

Posted by: Ted | Dec 5, 2005 4:57:42 PM

Ted -- I think you misunderstood my point about Allapattah; under Allapattah, all you need is one plaintiff who satisfies the amount in controversy. All CAFA really adds is a requirement of only minimal diversity, which, at least thus far, has meant that it's been used more frequently as a basis for removal than as a basis for initial filing (although, to be fair, there may be selection bias based on timing).

On a deeper level, I think there's an important difference between criminal habeas (so, what AEDPA and the SPA are aimed at), and habeas for immigrants and "enemy combatants," who have no means of redress in state courts. Or are you okay with that, too? I think I know what Hamilton's answer was...

Lastly, not that your attack on the Ninth Circuit is something I haven't heard before, but when you say "lawless in capital punishment cases," you may wish to clarify. The Fifth Circuit has been slapped around by the Supremes in death penalty cases at least as much as, if not more so than, the Ninth in recent years, and usually for taking the opposite position from the Ninth. Moreover, it's not as if the Ninth Circuit, for all of its flaws, invented the constitutional avoidance canon...

Posted by: Steve Vladeck | Dec 5, 2005 4:45:27 PM

even though most plaintiffs would not need the Act to bring such suits under the Supreme Court's June decision in Exxon Mobil v. Allapattah Services.

This reflects a fundamental misunderstanding about real-life class action practice in 2004, claims-shaving, and why the Class Action Fairness Act was passed. In any event, there will likely be no increase in workload (most class actions of any significant size were filed in both state and federal courts as the plaintiffs judge-shopped for the court most likely to certify), and a decrease in duplicative workload.

It's interesting that Congress is trying to put state tort lawsuits into federal court while preventing state criminal defendant's from going to federal court.

It's interesting that this is precisely what Hamilton suggested in Federalist No. 80. State criminal defendants who had been convicted didn't get to go to federal court until relatively recently.

It's worth noting that if the Ninth Circuit weren't so lawless in capital punishment cases, Congress wouldn't be tempted to fiddle with habeas to reduce the Ninth Circuit's discretion as a favor to the frustrated citizens of Arizona.

Posted by: Ted | Dec 5, 2005 4:36:44 PM

It's interesting that Congress is trying to put state tort lawsuits into federal court while preventing state criminal defendant's from going to federal court. Why are state courts good enough for criminal defendants, but not for majestic corporations? Majestic corporations, like criminal defendants, can review any adverse judgments to the state's highest courts. Shouldn't state appellate review be good enough for corporations?

Posted by: Mike | Dec 4, 2005 8:55:15 PM

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