Jurisdiction stripping cases. Jurisdiction Stripping and the Presumption of Judicial Review: Who Gets to Make the Call in 2020 By Patrick M. Cases interpreting Klein have held that Congress cannot impede the judiciary’s power to decide cases independently, for example, by Mar 21, 2023 · Complex Concepts Simplified Jurisdiction-Stripping Jurisdiction-stripping refers to legislative provisions that limit or remove the authority of courts to hear certain types of cases. In 2017, shortly after the FERC certificate was awarded, opponents of that decision, including the Sierra Club, sought rehearing from FERC. Congress attempts to remove habeas jurisdiction over prisoners from Guantanamo by giving exclusive jurisdiction to military courts. 1252 (a) (2) (B), which provides that "no court shall have jurisdiction to review" "any judgment regarding the granting of relief" for certain enumerated categories of discretionary relief. -- (1) Notwithstanding any other provision of law, no court shall have jurisdiction to review any action taken by the Secretary of the Army, the Federal Energy Regulatory Commission Sep 26, 2017 · Congress sometimes exercises this power by “stripping” federal courts of jurisdiction to hear a class of cases. U. A case study of jurisdiction stripping statutes in a single policy area, Forest Service wilderness designations, augments the empirical analyses. Appellants argued that the Act’s jurisdiction-stripping provision is unconstitutional and therefore, that their claims against Sudan may be heard in federal court. LDS CONGRESS STRIPPED JURISDICTION TO HEAR PIPELINE CHALLENGE. Supreme Court Ex parte McCardle, 74 U. Jurisdiction stripping, also called curtailment of jurisdiction or court stripping, refers to the congressional practice of defining the jurisdiction of the United States federal judiciary as to eliminate its ability to hear certain classes of claims, thereby making certain legislative or executive actions unreviewable by the federal judiciary, but still potentially reviewable by state Mar 15, 2018 · Jurisdiction Stripping: When May Congress Prohibit the Courts from Hearing a Case? May 9, 2025 · An immigration law didn’t strip federal courts of jurisdiction over immigration cases. They can decide to strip a federal court of the power to hear a specific class of cases. In the Fiscal Responsibility Act of 2023, the following text can be found: (e) Judicial Review. Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U. Rev. Dawn M. Aug 1, 2024 · Chuck Schumer’s ambitious plan to take the Supreme Court down a peg Schumer wants to engage in jurisdiction stripping, a rarely used tactic that can shrink the Supreme Court’s authority. Jurisdiction stripping is seen as a nuclear option. When Congress strips federal courts of jurisdiction, it exercises a valid legislative power. Kinnally February 2020 To many practitioners, including myself, Congress’s authority to strip federal courts of jurisdiction to hear certain cases, emanates in our politic because Congress does not like what federal judges might rule, or more probably it wants to control the outcome In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases. ” “At the end of the day, Congress passed a body of (1) Jurisdiction - OCAHO generally has jurisdiction to hear and adjudicate cases involving allegations of: (A) Knowingly hiring, recruiting, or referring for a fee, or continuing to employ, unauthorized aliens, or failing to comply with employment eligibility verification requirements in violation of INA § 274A (employer sanctions); Ex parte McCardle, 74 U. Legislators and commentators have also advanced other proposals to change the Supreme Court’s jurisdiction or procedures. Brief Fact Summary. Although Congress periodically considers bills stripping federal courts of jurisdiction in one way or another,1 such at-tempts almost always fail, and so debate outside the academy focuses much more on how the federal courts ought to decide cases than if they may de-cide them at all Hamdan argued in the Supreme Court that to read the Detainee Treatment Act to strip jurisdiction over pending habeas cases, as Justice Scalia did, would raise constitutional questions about Congress's power to limit the Supreme Court's appellate jurisdiction. Oct 26, 2020 · Stripping the Supreme Court of jurisdiction over certain classes of cases, such as abortion cases, would not mean that Americans would not have access to a judicial tribune for resolving cases. In this panel, academic commentators and amici from the case will discuss the careful distinctions between amendments to substantive law and case-specific jurisdiction stripping, sharing insights on the separation-of-powers questions both behaviors raise. Mar 6, 2019 · At issue is the scope of a jurisdiction-stripping provision in the Immigration and Nationality Act, 8 U. Congress can use jurisdiction-stripping to prevent the courts from hearing certain types of cases, such as those related to national security, immigration, or economic policy. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. Congress has gone so far as to eliminate a court’s jurisdiction to review a particular case in the midst of litigation. 4th 71 (4th Cir. Unit-ed States held that a jurisdiction-stripping provision of the Immigration and Na-tionality Act does not preclude judicial review of damages claims brought by noncitizens. Dec 30, 2019 · Here, Congress’s intent to preclude judicial review is “fairly discernible. ” Jul 18, 2019 · THEODORE J. Aug 9, 2018 · This report highlights a series of Supreme Court rulings that have examined separation-of-powers-based limitations on the Exceptions Clause, congressional jurisdiction stripping, and the ability of Congress to amend laws with the purpose of directly impacting litigation. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. May 1, 2017 · By stripping federal courts of jurisdiction over actions “relating to” the Bradley Property, section 2 (b) changed the law and is a jurisdiction-stripping statute. . Such a divestiture is known today as “jurisdiction stripping,” and, despite Jurisdiction-stripping – Art III § 2 (exceptions clause) gives Congress the power to make exceptions to SCOTUS appellate jurisdiction over cases & can strip their jurisdictional Jurisdiction stripping isn't a magic wand, but if Congress had passed a law on Day 1 of the Biden Administration stripping SCOTUS of jurisdiction of any cases about guns or abortion, things would be very different right now. Jun 24, 2019 · In that case, the Court evaluated the effect of various allegedly jurisdiction-stripping provisions, including the predecessor to §1252 (a) (2) (C). § 805. As Amicus will explain, implied jurisdiction stripping is contrary to our constitutional design, violates due process, and—at least in the case of the Securities and Exchange Commission—creates a nondelegation issue. The Respondent, Klein (Respondent), brought suit in the United States Court of Claims, seeking compensation for property taken during the Civil War. But the Supreme Court has held that Sep 2, 2005 · Court-stripping measures of this kind eliminate one of the most important of the checks and balances that prevent any of the three branches of government from becoming too powerful. The appellate jurisdiction of this court is conferred by the Constitution, and not derived from acts of Congress, but is conferred "with such exceptions, and under such regulations, as Congress may make," and, therefore, acts of Congress affirming such jurisdiction have Although the Supreme Court has rarely addressed the possibility of limitations on congressional jurisdiction-stripping power, the few determinative cases to go before the Court reveal an acceptance of the orthodox view of plenary power. Jul 1, 2024 · This Essay begins, in Part I, by describing the existing Supreme Court case law on jurisdiction channeling and section (b) (9) and explaining how district courts should decide whether to allow affirmative challenges under that case law. It passed a number of laws that say that the Article III courts aren't even allowed to be involved in immigration cases. May 10, 2025 · He pointed to a key piece of legislation, the Immigration and Nationality Act, which includes what’s known as “jurisdiction stripping. Mar 13, 2025 · Despite these broad jurisdiction-stripping provisions, the immigration laws also include a jurisdictional “safe harbor” that allows us to review certain questions even in this waiver context. Supreme Court of its appellate jurisdiction. Feb 28, 2024 · The jurisdiction-stripping action occurred seven years ago. In United States law, jurisdiction-stripping (also called court-stripping or curtailment-of-jurisdiction) is the limiting or reducing of a court's jurisdiction by Congress through its constitutional authority to determine the jurisdiction of federal courts and to exclude or remove federal cases from state courts. Synopsis of Rule of Law. 1 And lately, it has taken on a renewed salience with political progressives calling to strip the federal courts of jurisdiction to re Nov 1, 2021 · Jurisdiction stripping is seen as a nuclear option. ” Pursuant to the Jurisdiction-Stripping Provision, we are deprived of jurisdiction to review any claim challenging a “determination, finding, action, or omission” under the CRA. But even assuming that is true, that does not help Bouarfa here, because unlike the discretionary determina-tion at issue in Patel, §1155’s revocation authorization has no threshold requirements. Madison holds that Congress cannot grant the federal courts more jurisdiction than Article III allows; that is, Article III is the ceiling of possible federal judicial power. Congress used jurisdiction stripping to expedite completion of Mountain-Valley pipeline. 70, No. See Gerald Gunther, Congressional Power to Cur-tail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. Constitution vests the judicial power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and Aug 12, 2024 · Suppose one rejects the Story view. All other cases reach the Supreme Court, if at all, on appeal. Special thanks to Mahrah Taufique for help on the legal issues concerning translation of the asylum application Aug 5, 2024 · 93. Mar 24, 2020 · The court has determined that Congress did not strip circuit courts of authority to review the application of law to settled facts in any removal appeals brought by noncitizens with certain criminal convictions, not just removal appeals involving equitable tolling. Abstract: On August 9, 2018, the Ninth Circuit Court of Appeals in Arce v. The Court's jurisprudence largely begins with the Reconstruction-era case, United States v. I was only able to find a single poll that asked about the subject of jurisdiction stripping, (which I cite in footnote 101) although the poll didn’t even use the words jurisdiction stripping, but rather explained its function. Patchak ultimately upheld th e Gun Lake Trust Land Reaffirmation Act (Gun Lake Act) against a Jun 28, 2021 · Patel v. Constitution. Mar 19, 2025 · DeSantis posted Wednesday on X: “Congress has the authority to strip jurisdiction of the federal courts to decide these cases in the first place. Zinke, a case implicating a host of difficult legal issues concerning the respective powers of Congress and the judiciary. (7 Wall. [2] Nov 22, 2024 · In the United States, jurisdiction-stripping (also called court-stripping or curtailment-of-jurisdiction), refers to Congress ' constitutionally-granted authority to determine the jurisdiction of federal and state courts. Marbury v. Garland, the court found that it lacks jurisdiction to review the Board of Immigration Appeals’ discretionary hardship determination. 7 Wall. 4 (Oct. Nov 1, 2021 · Jurisdiction stripping is seen as a nuclear option. 5 U. To its critics, it poses a grave threat to the separation of powers. Congress may not strip the U. Mar 19, 2025 · “Congress has the authority to strip jurisdiction of the federal courts to decide these cases in the first place,” DeSantis said. Supreme Court of jurisdiction over those cases that fall under the Court's original jurisdiction defined in the U. Supreme Court recently issued its decision in Patchak v. C. Jul 24, 2010 · Part IV will apply the preceding analysis to House Bill 3313 and ultimately conclude that Congress does not have the power to strip any federal court of the jurisdiction to hear same-sex marriage cases. Cyr, a case about the scope of a jurisdiction-stripping statute aimed at preventing […] s not to register as “jurisdiction stripping” at all. To its proponents, it ofers the ultimate check on unelected and unaccountable judges. Jun 10, 2025 · Jurisdiction Stripping: A legislative mechanism by which Congress removes the power of certain courts to hear specified types of cases, funneling them through specialized administrative procedures. Dec 16, 2024 · The Court’s preservation of this issue is thanks in part to an amicus brief that the Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and our firm, Van Der Hout LLP, authored and filed in the case in July 2024, arguing that the jurisdiction-stripping provision is limited to the removal context. The term “jurisdiction stripping” is used throughout this Article to refer to efforts to restrict federal jurisdiction over a class of cases (such as cases involving school prayer). May 9, 2025 · So Congress actually passed what's called jurisdiction-stripping legislation. WEIMAN† On July 22, 2004,1 the House of Representatives passed the Mar-riage Protection Act of 2004, a bill that would strip the federal courts of jurisdiction over cases challenging the constitutionality of the 1996 Defense of Marriage Act. Aug 9, 2018 · Congress sometimes exercises this power by “stripping” federal courts of jurisdiction to hear a class of cases. Jurisdiction stripping has long been controversial. Oct 30, 2024 · The grant of Supreme Court original jurisdiction over cases affecting ambassadors and cases where a state is a party means that those types of cases may be commenced in the Supreme Court in the first instance. Jul 14, 2024 · Judges and scholars have assumed that determining the extent of jurisdiction-stripping statutes requires answering questions of law. This report examines a series of Supreme Court rulings that have considered separation-of-powers-based limitations on the Exceptions Clause, congressional jurisdiction stripping, and the ability of Congress to amend laws with the purpose of directly impacting existing litigation. Just how many cases will fall within this category is unknown. The Respondent now argues for affirmation on appeal. Even so, stripping all courts, both state and federal, of jurisdiction over some particular category of cases raises further questions. However, the case remains good law, and Klein and its progeny provide some useful guideposts for Congress in fashioning jurisdiction-stripping legislation and measures that target pending litigation. May 9, 2025 · At the end of the day, Congress passed a body of law known as the Immigration Nationality Act which stripped Article III courts, that’s the judicial branch, of jurisdiction over immigration cases. Both sides agree, though, that Feb 28, 2018 · Jurisdiction-Stripping Precedent Strengthened: By upholding the Gun Lake Act, the Court established a clear example of how legislation can validly strip courts of jurisdiction without crossing constitutional lines. Most of the commentators to address the case so far have seen it as a case about the war on terror, or about the reach of habeas corpus. Jurisdiction-stripping is a way for the legislative branch to limit the judiciary's ability to review and potentially overturn the actions of the executive branch. Jurisdiction-stripping proposals were advanced in Congress as early as 1830. , 2008), pp Dec 27, 2019 · The Ninth Circuit affirmed the district court's dismissal of a Truth in Lending Act (TILA) claim for lack of subject matter jurisdiction based on the jurisdiction-stripping provisions of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA). Garland: Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings concerning removal or adjustment of immigration status. L. Jul 21, 2023 · But in 2020, Congress enacted the Sudan Claims Resolution Act, which stripped the federal courts of jurisdiction to hear most terrorism-related claims against Sudan. 2 Two months later, the House passed a simi-lar bill that would curtail federal court jurisdiction for challenges to the constitutionality of Jan 19, 2024 · Cases since Klein have limited the reach of that decision. Aug 11, 2023 · Can Congress, with particular pending litigation in mind, strip a particular court of jurisdiction to hear a certain type of cases when it disagrees politically with the view of the law that court has taken in the past? Apr 1, 2025 · Congress can strip federal courts of all or some of its jurisdiction, channel jurisdiction over a particular class of cases into one particular court, and even strip the U. May 9, 2022 · So, jurisdiction stripping is when Congress decides to limit a court’s jurisdiction. May 5, 2021 · Article III of the Constitution gives Congress the power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judges when they stand in the way of change that a substantial and enduring political majority wants. Mar 21, 2021 · Jurisdiction stripping is one such way to do this, and Congress has used jurisdiction stripping to essentially force the Judiciary's hand on a number of active cases throughout history. So Congress actually passed what’s called jurisdiction stripping legislation. This case presents the Court with a chance to reclaim the courts’ Article III jurisdiction over such cases. Proposals to strip the federal courts of jurisdiction have been introduced regularly since the early nineteenth century. My own view is that Congress's Exceptions Clause power is broad, but *not* plenary. Although Congress has power to limit the appellate jurisdiction of the federal courts, it may not use this power to effectively prescribe a rule for Mar 19, 2025 · “Congress has the authority to strip jurisdiction of the federal courts to decide these cases in the first place. Prominent proposals include making changes to the Court’s motions docket (which some commentators call the “shadow docket”); limiting the Court’s appellate jurisdiction over certain categories of cases (sometimes called “jurisdiction stripping”); imposing This essay argues that the Supreme Court’s recent decision in Boumediene v. ) 506 Syllabus 1. “The sabotaging of President Trump’s agenda by ‘resistance’ judges was predictable — why no jurisdiction-stripping bills tee’d up at the onset of this Congress?” In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases. Jul 2, 2022 · Congress might be able to prevent the Supreme Court from striking down the Voting Rights Act, for example, by stripping the Court of jurisdiction to hear voting rights cases. Jurisdiction-Stripping and the Supreme Court A new reform bill raises an old question about how far Congress can go to keep appeals away from the Supreme Court. Between 1953 and 1968, over sixty bills were introduced into Congress to restrict federal court jurisdiction over particular topics. Sep 27, 2022 · But, the Real ID Act of 2005 restored our jurisdiction over “constitutional claims or questions of law” presented in cases subject to the jurisdiction-stripping provision. And in Lynch v. It has very recently happened. Featuring: Congressional “court stripping,” or the attempt to take jurisdiction away from courts to review matters of all types, is not new. Mar 19, 2025 · Citing jurisdiction-stripping provisions in 8 U. [1] The entirety of the Court's appellate jurisdiction is determined by federal law. Courts still rule on the constitutionality of a president’s immigration actions. St. Congress can strip federal courts of all or some of its jurisdiction, channel jurisdiction over a particular class of cases into one particular court, and even strip the U. May 1, 2013 · Introduction Usually, only legal scholars routinely consider federal court jurisdic-tion-stripping a hot topic. Both sides agree, though, that In United States law, jurisdiction-stripping (also called court-stripping or curtailment-of-jurisdiction) is the limiting or reducing of a court's jurisdiction by Congress through its constitutional authority to determine the jurisdiction of federal courts and to exclude or remove federal cases from state courts. The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. 1 And lately, it has taken on a renewed salience with political progressives calling to strip the federal courts of jurisdiction to rein in a perceived conservative judiciary. To its proponents, it offers the ultimate check on unelected and unaccountable judges. Mar 15, 2018 · Legal Sidebari Jurisdiction Stripping: When May Congress Prohibit the Courts from Hearing a Case? March 15, 2018 The U. Klein, and leads to Patchak v In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases. 2023). How would jurisdiction-stripping work? Another potential constraint on the federal courts' constitutional judicial review power is Congress's authority to strip courts of their subject matter jurisdiction. Dec 2, 2019 · It has been 18 years since the Supreme Court’s decision in Immigration & Naturalization Service v. Chutkow a, Jurisdiction Stripping: Litigation, Ideology, and Congressional Control of the Courts, The Journal of Politics, Vol. Bush, its latest pronouncement on the detainees in Guantanamo Bay, should be understood as a jurisdiction-stripping case. In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases. In this article, Shay and Kalb argue that Woodford and Jones exemplify “jurisdiction-stripping by con-sent,” in which courts relinquish jurisdiction over disfavored categories of cases by adopting facially neutral procedural rules. S. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise […] Jurisdiction stripping has long been controversial. United States Department of the Interior, 78 F. — Appalachian Voices v. 506 506 (1868) Ex parte McCardle 74 U. §§ 1252 and 1182, and contrasting this case with precedent from Wilkinson v. 895, 895–97 (1984). In this case, plaintiff sought rescission of a mortgage loan under TILA, claiming that the lender provided him with defective notice It is the fact that here Congress was exercising its commerce power, which, we think, primarily serves to distinguish the cases relied upon by appellants. The research is based upon two newly created databases which identify all such jurisdiction stripping public laws enacted from 1943 to 2004. I argue that this decision takes significant steps toward First case since Klein to hold jurisdiction stripping unconstitutional. ) 506 (1869), was a United States Supreme Court decision in which the Court held that Congress has the authority to withdraw the Supreme Court's appellate jurisdiction to review decisions of lower courts at any time. That predecessor (which today is modified by the Limited Review Provision) essentially barred judicial review of removal orders based on an alien’s commission of certain crimes. Bouarfa ar-gues that, because the jurisdiction-stripping provision at is-sue here lacks similar language, its scope must be nar-rower. Accordingly, all of the interesting cases involving congressional stripping of jurisdiction from state courts involve simultaneous stripping of jurisdiction from federal courts (as indicated in the mere parenthetical references to federal court B. But determining whether Congress has withdrawn jurisdiction often raises * Assistant Professor, University of California – Berkeley School of Law. The sabotaging of President Trump’s agenda by ‘resistance’ judges was predictable — why no jurisdiction-stripping bills tee’d up at the onset of this Congress?” the governor and former GOP presidential candidate wrote. There is really only one case on point, the 1948 Second Circuit decision in Battaglia v. Mar 15, 2018 · The Chief Justice further maintained that, even if the plurality was correct that the Gun Lake Act was best read as a jurisdiction-stripping statute, the law would still be unconstitutional because separation-of-powers principles prohibit Congress from “manipulat[ing] jurisdictional rules to decide the outcome of a particular pending case. The Joliffe, Ettor, Forbes Pioneer Boat Line, and Coombes cases, supra, all dealt with state statutes or constitutional provisions repealing prior state laws. 2 Article III of the U. The plurality read Congress's power under the Exceptions Clause of the Constitution broadly, suggesting that Congress has nearly unlimited power to strip jurisdiction from the federal courts, even if the result is to terminate a pending case in favor of an identifiable party. bdxhvfh zdw4ftx tww 3hygu unte tjix 7xm6 nhrrfx at4bl ngb