« Jordan Rubin on Justices Gorsuch and Scalia
Michael Ramsey
| Main | New Book: "The Heart of the Constitution" by Gerard Magliocca
Michael Ramsey »

02/12/2018

Michael Dorf: Affirmative Power to Strip State Courts of Jurisdiction
Michael Ramsey

Michael C. Dorf (Cornell Law School) has posted Affirmative Power to Strip State Courts of Jurisdiction on SSRN.  Here is the abstract:

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. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal statutory claims and challenges to federal statutes, Congress exercises whatever affirmative power authorizes the substantive statute. However, Congress lacks affirmative power to strip all courts of the power to hear constitutional challenges to state laws. That conclusion is important in its own right but also complements views — such as Henry Hart’s contention that the Supreme Court must have such jurisdiction as necessary to play its “essential role” in our constitutional system — about the scope and limits of congressional power under the Exceptions Clause of Article III. The limit on affirmative congressional power to strip state courts of jurisdiction to hear constitutional challenges to state laws ensures that there will be cases over which the Supreme Court can exercise its appellate jurisdiction in order to play its essential role.

An interesting set of puzzles, and an approach that is not really originalist but sensitive to text and history.

(Via Dorf on Law).