Academic journal article
By Dobkin, Donald S.
Justice System Journal , Vol. 28, No. 1
Congressional "court stripping," or the attempt to take jurisdiction away from courts to review matters of all types, is not new. Jurisdiction-stripping proposals were advanced in Congress as early as 1830. Between 1953 and 1968, over sixty bills were introduced into Congress to restrict federal court jurisdiction over particular topics. The 1970s and 1980s saw efforts to strip the courts of jurisdiction in busing, abortion, and school-prayer cases. Sen. Jesse Helms once proposed a bill to strip the federal courts of jurisdiction to review school-prayer cases. Barry Goldwater, upon learning of the Helms bill, dismissed the proposal as the equivalent of "outlawing the Supreme Court."
Congress has for years attempted to strip courts of their jurisdiction to review actions of federal law-enforcement agencies and state courts in order to reverse decisions they do not like, punish judges, or even avoid future rulings they may not like. Federal courts, which have been essential in expanding and preserving individual rights, are now being barraged by congressional attempts to strip the courts of their power to review.
Congress's decisions about the courts' jurisdiction, including appellate jurisdiction, have considerable effects on their caseloads, although not always in ways that might have been anticipated. Nowhere has this trend been more apparent than in Congress's legislation in the immigration area. With the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a Republican Congress and the Clinton administration fundamentally altered judicial review of immigration matters. Despite this legislation restricting judicial review, the caseload at the U.S. Court of Appeals has risen markedly, so much so that immigration cases now comprise 18 percent of the federal appellate civil docket.
The Legislation. The Supreme Court has suggested that "protecting the Executive's discretion from the courts. . . . can fairly be said to be the theme of the legislation." Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471, 486 (1997). The AEDPA eliminated judicial review for criminal aliens. It stated that "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against any alien who is removable by reason of having committed a criminal offense." In addition, the act deleted the prior provision in federal law that permitted habeas corpus review of claims by aliens who were held in custody pursuant to deportation orders.
The IIRIRA was an attempt by Congress to eliminate judicial review of nonfinal orders or rulings primarily involving aliens in removal proceedings. It also contained provisions to deport summarily aliens seeking political asylum, often at border entry points, with no hope of judicial review. The HRIRA further restricted judicial review by providing that only "final" removal orders directed at aliens were reviewable. In addition, Sec. 1252(a)(2)(B)(ii), titled "Judicial Review of Orders of Removal," provided:
Notwithstanding any other provision of law, no court shall have jurisdiction to review... (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.
A pivotal question posed by the Sec. 1252 is whether the elimination of judicial review of discretionary matters applies only to Judicial Orders of Removal, as the heading or title of the section would suggest, or whether it applies to all discretionary decisions of the attorney general. Put another way, does the elimination of review of "discretionary matters" apply only to the removal context or does it apply generally to all matters of discretion of the attorney general?
The history recounted in the House Conference Report (S. …