Interesting Law Rev: Articles I & III on Enumeration

September 30th, 2009

In my second post today involving Seinfeld, Professor Gil Seinfeld from Michigan Law has posted an interesting article on SSRN

Legal Theory Blog: Seinfeld on Articles I & III on Enumeration.

    Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.

I’ve always been fascinated by Article III, § 2, and the scope of Congress’s powers to limit the jurisdictions of the Court. This became a huge hullabaloo after Lujan, when Cass Sunstein slammed Nino in What’s Standing After Lujan? Of Citizen Suits, Injuries, and Article III. Whenever Congress attempts to limit the Court’s jurisdictions, as this author puts it, “Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional.” Convenient, eh?

Just a thought, but wouldn’t these statutes by definition be political questions? Or at least, on separation of powers grounds, shouldn’t the Court avoid these. The correct answer, of course, is no, because the Supreme Court is the final arbiter of these matters, and they saw what the law is. I look forward to perusing this article, nonetheless.

H/T Legal Theory Blog