Academic journal article The University of Memphis Law Review

A Framework for Analyzing the Constitutionality of Restrictions on Federal Court Jurisdiction in Immigration Cases

Academic journal article The University of Memphis Law Review

A Framework for Analyzing the Constitutionality of Restrictions on Federal Court Jurisdiction in Immigration Cases

Article excerpt

For almost a half century, the topic of Congress's ability to restrict federal court jurisdiction has engaged the best and the brightest among federal courts scholars. Henry Hart's famous dialogue set the terms of the debate in 1953,1 but the list of those who have written on the subject is a veritable who's who among constitutional law and federal courts professors.2

The issue truly relates to the very essence of separation of powers under the United States Constitution: What is the proper relationship between Congress and the federal judiciary? There also is an important federalism dimension to the debate. Restricting federal court jurisdiction means that cases must be heard, if anywhere, in state courts. Is this an adequate substitute for federal judicial review, especially if the Supreme Court is not available to ensure compliance with federal law? If state courts can ignore federal law without any check by the Supreme Court, does this not undermine the Supremacy Clause of Article VI? Moreover, basic issues concerning due process are at stake, especially if no court is available to hear a matter.

Countless scholars have developed many different positions on the issue of Congress's ability to restrict federal jurisdiction. Some believe that the Constitution clearly authorizes Congress to control federal jurisdiction and that this is an appropriate political check on the judiciary.3 Others contend that there are significant limits on Congress's ability to restrict federal court jurisdiction; they maintain that Congress cannot act with the purpose and effect of undermining constitutional rights and that due process requires a judicial forum.4

After decades of academic debate, the Court now is poised to decide the constitutional issue as a result of recent federal laws restricting federal court jurisdiction in immigration cases. Both the 1996 Antiterrorism and Effective Death Penalty Act5 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996[6] significantly restrict federal court jurisdiction over certain immigration matters.7

The Antiterrorism and Effective Death Penalty Act greatly restricts the ability of federal courts to review deportation orders. The Act provides: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered by [certain listed deportation provisions.]"8 Additionally, the Act expressly deletes the prior provision in federal law that permitted habeas corpus review of claims by aliens who were held in custody pursuant to deportation orders.9 The law thus appears to foreclose all judicial review of deportation orders.10

Congress further restrictedjudicial review in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This law repealed a long-standing provision that authorized judicial review in the circuit courts of appeals and guaranteed habeas corpus upon detention. Additionally, the Act limited review of removal orders directed at aliens by declaring that "all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section."11 The Act also limits court review of discretionary decisions by the Attorney General, stating that no court has jurisdiction to review such rulings by the Attorney General as cancellation of removal,12 voluntary departure,13 or adjustment of status.14

In 1999, in Reno v. American-Arab Anti-Discrimination Committee,15 the Supreme Court interpreted a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as precluding federal court review of decisions by the Attorney General to "commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act. …

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