Stripped: Congress and Jurisdiction Stripping

By Heise, Nicole A. | Faulkner Law Review, Fall 2011 | Go to article overview

Stripped: Congress and Jurisdiction Stripping


Heise, Nicole A., Faulkner Law Review


Conventional wisdom suggests that jurisdiction stripping positively correlates with differences between judicial and congressional political preferences. An alternative school of thought suggests that administrative concerns are more directly related to jurisdiction stripping than ideological concerns. This study analyzes the accuracy of these competing explanations with the benefit of a database that includes all district court filings naming the United States as a defendant and all administrative appeals between the years 1943 and 2004. Analyses were performed that tested for relations between the amount of jurisdiction stripping and the number of case filings, political ideology, and economic strength. Findings from this study suggest that Congress's decision to remove jurisdiction is related to administrative concerns, but not political ideology or economic power.

I. INTRODUCTION

In the myriad of checks and balances that each branch of the government maintains over the others, Congress possesses the power to strip jurisdiction from the courts, thereby preventing courts from hearing certain legal disputes. (1) Jurisdiction stripping occurs when Congress classifies specific legislative or administrative actions as unreviewable by the courts. (2) Congress's power to remove jurisdiction from the courts has various implications, some of which are potentially troubling. (3) Removing jurisdiction may be viewed as a way for Congress to limit and restrict judicial power. (4) Additionally, when certain governmental actions are removed from judicial review, citizens cannot access the courts and petition for redress against the government. (5) Recent research suggests that jurisdiction stripping is designed by Congress to do just that--limit litigation against the government. (6) This study seeks to further examine the factors that might cause Congress to remove judicial review. This study concludes that the amount of litigation against the federal government strongly corresponds with congressional jurisdiction-stripping activity.

Much of the prior scholarship addressing jurisdiction stripping focuses on political ideology as the motivating factor behind instances of Congress removing court jurisdiction. (7) Proponents of this view argue that jurisdiction stripping is a tool used by Congress to help ensure that its political goals are met. (8) The theory is that when Congress and the courts share similar politics, ideology, or preferences, court decisions comport with Congress's goals and aims. (9) However, if the courts and Congress differ ideologically, court decisions may undermine and contradict Congress's agenda. (10) Consequently, when the courts and Congress differ ideologically, Congress may strategically strip courts' jurisdiction to prevent them from undercutting Congress's legislative objectives. (11)

Recent empirical studies of jurisdiction stripping, however, emphasize practical concerns--like the administrative burdens created by litigation against the government--as the motivating forces behind jurisdiction stripping. (12) Over the past few decades, litigation against the federal government has steadily increased. (13) This increase in litigation has not been matched by a similar increase in the number of federal judges. (14) Consequently, federal judges face increased caseload pressures. (15) Litigation also typically involves a consequential drain on government resources, both in terms of time and money. (16) Finally, litigation--even unsuccessful litigation-can frustrate policy implementation by imposing delays. (17) Congressional concern with the resource drain and policy delays imposed by litigation may help explain why jurisdiction stripping is used to limit litigation against the government. (18)

Leading empirical studies linking jurisdiction stripping to administrative concerns caused by the growing amount of litigation concentrate on two primary independent variables: an ideological variable (designed to capture the distance between court and congressional preferences) and a litigation variable (designed to capture the burden of litigation against the federal government), (19) This study seeks to improve and expand upon previous empirical research in two main ways. …

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