This article argues two related propositions. First, if Congress were to eliminate all funding for lower federal courts, its constitutional authority to regulate those courts would become as meaningless as the empty courthouses. Second, Congress breaches its duty to furnish a forum at a point short of full defunding, and with that breach, Congress's regulatory power over private civil disputes otherwise litigable in state courts-preempted and removable state law claims-becomes constitutionally invalid. The first fact setting of full defunding is hypothetical; the second has been underway for several years.
I. THE DEFUNDING OF FEDERAL COURTS
For the past two decades, Congress has undermined the operation of federal courts with a combination of inadequate budget increases and remarkable expansions of federal jurisdiction. As explained in the following section, the budget shortfalls are greater than apparent on the face of the budget because of the unique, constitutionally-mandated allocation of fixed costs and so-called discretionary operating costs within the federal judiciary.
A. The Judicial Budget
Federal courts are in an unprecedented funding crisis for which there is, as of now, no end in sight and no plausible solution. Funding shortages are not new to the judiciary-Congress short-funded the jury allocation in 1986,1 and even declined funds for purely political reasons in its 1802 attempt to unseat Federalist judges appointed by President Adams.2 But the current crisis, now several years underway, is of a magnitude that if unchecked may well redistribute the power balance among the government's three branches. The judiciary's most recent and most pointed response is Chief Justice Rehnquist's commissioning of a study that resulted in the Cost-Containment Strategy for the Federal Judiciary: 2005 and Beyond,3 a report that both quantifies and places in context the judiciary's crisis and provides a number of good faith contingency plans to deal with deteriorating support.
Tight funding from a tax-cutting Congress is not the only problem. The fact of lagging funds is aggravated by the judiciary's unique distinction between mandatory or fixed costs and "discretionary" costs. Examples of fixed costs are salaries for judges and their immediate staffs (secretaries and judicial clerks) and rent paid to the General Services Administration. All other expenses are discretionary-these include the salaries for all other employees (district clerks and their staffs, probation office, federal public defender), and the purchase of equipment.4
Recent judicial budgets have been flat or modestly increased,5 with Congress justifying its denials of needed new funds as the result of lean times for all government departments.6 But the problem is growing worse more quickly than we might speculate from these modest budget increases. Fixed costs have risen at a far greater rate than the annual percentage increases, leaving a dwindling allotment for the so-called discretionary costs.7 In describing these allocations, it is important to understand that the term "discretionary" does not mean that these services can be eliminated; rather, it means the local district has discretion to allocate this money depending on local needs, while the local district does not have discretion in paying judicial salaries or rent to the Government Services Administration. The mandatory or fixed expenses will increasingly eat up the federal court budget while essential employees are terminated and essential court services cut.
Within these fixed expenses, two components must be distinguished-judicial salaries and rent. Judges' salaries account for nine percent of the total budget, and studies show they are significantly underpaid.8 Rent is the other major fixed-cost component. That federal courts even pay rent will be a surprise to most lawyers, but they do. The Government Services Administration, that is, the executive branch, "owns" the buildings housing the federal courts. …