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Constitutional law can be at times...how can I say this eloquently?  Dry?  Boring?  But I promised in valabor's diary to touch a bit on HR 418, which states that the Secretary of Homeland Security can suspend "all laws" he deems necessary to ensure prompt construction of the San Diego border fence.  Under Section 102 of that proposed bill, there "shall be no judicial review."  The comments to that diary were understandable, ranging from "What the hell is going on?" to "That's clearly unconstitutional!"

Well, it may not be unconstitutional.  Or maybe it just has to be read in context of some piping hot case law and a side of Georgia's home-baked Article 3 analysis (yes, it's almost dinnertime, and I have supper on the mind, as you can tell).

OK, gather `round, grab a pillow in case you doze off, and let's jump right in.

"Notwithstanding any what?"
First, as KagroX and others pointed out on that thread, the key phrase in HR 418 is "not withstanding any other provision of law..."  As KagroX pointed out, that's the bullshit factor. It's incorporated as boilerplate language in many bills.  Thus, decoding legislative speak, this:
"Not withstanding any other provision of law..."  

Becomes this:

"I can't possibly sit here and analyze two hundred years of case & statutory law on this issue, so just to cover your ass, put this phrase in and let the court sort it out later."

So that phrase should be a red flag of sorts, not a major one though, that someone somewhere in some tiny basement office in the Capitol knows they're reaching on this one.

No Review?  No way!
Yes, way.  Congress has incredible power when it comes to limiting (or creating) the jurisdiction of the federal courts.  As background, let's look at Article III of the United States Constitution.  Does everyone have a copy or should I pass one out? (wow, the Constitution is still available to the public!  I guess George hasn't gotten `round to censoring the internets yet.)

Here is the relevant section we'll be working with the judge the constitutionality of HR 418:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. [...]

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United Stats, and Treaties made, or which shall be made, under their Authority [...]; --to Controversies to which the United States shall be a Party [....]

    In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction.  In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The first thing we should be readily cognizant of is that lower federal courts are a creature of statute, specifically, the Judiciary Act of 1789.  It was then that Congress said, hey, might as well set up some lower federal courts!  So Congress created the district and appellate courts in the federal system, and gave them jurisdiction. But what Congress giveth, Congress can taketh away?  

In a word:  Yes.  Congress can limit the jurisdiction of the federal courts, including the Supreme Court.  This is because of the "with such Exceptions, and under such Regulations as the Congress shall make" language of Art. III, Sec. 2.  Most of the time, the limit is because Congress prefers the given claim to be adjudicated in a state court. Preclusion of federal jurisdiction while still leaving open state jurisdiction is, if I read the statute correctly, an issue here, because it appears by the plain text of the bill that both federal and state review are prohibited. But can Congress preclude all judicial review, both state and federal, as it appears to be the case here?

Let's check out the precedent for this, shall we?  

The Portal-to-Portal Act of 1947 :  "No court of the United States, of any State...or of the District of Columbia, shall have jurisdiction of any action or proceeding...to enforce liability or impose punishment [for an employer's falure to pay minimum wage or overtime]."  

The statue was challenged, and in Battaglia v. General Motors Corp. (2d Cir. 1948) Judge Chase wrote:

[W]hile Congress has the undoubted power to give, withhold, and restrict the jurisdiction of courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law..."

Due Process is encompassed under the 5th Amendment. But we want Article III analysis, dammit! The problem is, the Supreme Court has never squarly been faced with the question of whether Congress could prohibit BOTH federal & state jurisdiction for constitutional matters.  

But lookey here, we have some pretty good hints that HR 418 cannot preclude constitutional claims:

Webster v. Doe, 486 U.S. 592 (1988):  The Supreme Court ruled that Congress could preclude non-constitutional claims in that case, but that Congress did not demonstrate its intent to preclude constitutional claims.  Such preclusion, the Court wrote, demands a "heightened showing" of intent to deny review of constitutional challenges.  The Court has been extremely cautious in this area of law, classifying the preclusion of review of constitutional matters as a "serious constitutional question."

More cases!  More cases!

Bowen v. Michigan Academy of Family Physicians (1986): The Court found that Congress did not intend to bar constitutional challenges in that case.

Johnson v. Robison (1974): The Court held that a law making determinations of Vet's benefits "final" and "nonreviewable" did NOT apply to constitutional challenges to the validity of the classification.  The Court wrote that such preclusion would "raise serious questions concerning the constitutionality of the provision barring judicial review."

The key then, in evaluating HR 418, is to remember that the Constitution is the Supreme Law of the land--not what Congress passes, not what 125 Republican co-sponsors think should be the law.  

In Sheldon v. Sill, Justice Story (big shot Supreme Court Justice, for all you non-law folks) wrote that a statute limiting jurisdiction (which is essentially what a statute precluding review does) "cannot be in conflict with the Constitution."  

There are limits to Congressional power over jurisdiction and its ability to preclude review; they are at times call "external" restraints because they exist outside of Article III.  Namely, these restraints are the Bill of Rights, the rest of the Amendments, and any other Constitutional provision.  So no matter how much Rep. Sensenbrenner  wants the Secretary to be completely insulated in whatever decision he makes, he's just plain wrong.  If the DHS Secretary decides to halt labor laws or take people's property, those are very valid constitutional claims, and could be brought under judicial review.

Still awake?  Great.  I hope this helped clarify things a bit.  

Originally posted to Georgia Logothetis on Mon Feb 07, 2005 at 05:26 PM PST.

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Comment Preferences

  •  Tip bowl? (4.00)
    Look ma!  No typos!

    If the people lead, the leaders will follow.

    by Georgia Logothetis on Mon Feb 07, 2005 at 05:25:16 PM PST

  •  Still awake (none)
    Great diary, Misssion Clarification Accomplished.
    Thanks!
  •  Due process of law (none)
    You got it.

    It's unconstitutional.

    "Just say no to torture." -Semi-Anonymous Blogger.

    by Armando on Mon Feb 07, 2005 at 05:59:54 PM PST

    •  I was reading over the full text of the bill (none)
      and the "no judicial review" is the least of its problems.

      There is a HUGE just compensation problem that will be the fatal flaw of the bill, methinks.

      If the people lead, the leaders will follow.

      by Georgia Logothetis on Mon Feb 07, 2005 at 06:13:36 PM PST

      [ Parent ]

      •  I'm in it, therefore, it is awesome. (none)
        What's the compensation problem? Are conservative Republicans abandoning their "takings" dogma? Horrors!
      •  It is Geared Toward Environmental Law (none)
        According to the bill analysis "The measure would mandate the completion of a fence on the Mexico border near San Diego that has been delayed because of environmental concerns. There is now a three-mile gap."

        This bill is intended as an end-run about legal challenges to the Border Patrol's plan to fill in an environmentally senstive area known as "Smuggler's Gulch.  According to one news article


        To complete a three-and-a-half-mile fence system connecting the ocean with a point west of Interstate 5, the U.S. government intends to cut nearly 2 million cubic yards of earth out of Border Highlands and Spooner's Mesa and pour it into Smuggler's Gulch. The installment is part of a greater 14-mile so-called "triple border fence" that U.S. Customs and Border Protection (CBP) wants to build from the base of the San Ysidro Mountains to the Pacific. Nine miles of the fencing project has already been built.

        The entire area is protected land that falls under the Multiple Species Conservation Plan, a multi-jurisdictional vehicle for enforcing laws that protect endangered and threatened species.  Smuggler's Gulch is the home of the California gnatcatcher, an endangered bird.

        There are also concerns that Filling in the gulch will ruin the downstream Tijuana Estuary, a mineral-rich brackish marsh that provides riparian habitat for native plants and endangered birds such as the California least tern, western snowy plover, light-footed clapper rail, least bells vireo and Belding's savannah sparrow.

        And miracle of miracle, the California Coastal Commission, the state agency charged with managing conservation and development along the coast, wants to enforce the law!

        Coastal Commission Executive Director Peter Douglas reminds CBP that he is obligated by the state Coastal Act of 1976 to protect the environment in what's known as the coastal zone. "It the law," he says. "They just don't get it."

        And THAT is the immediate reason why this new bill gives HHS unfettered discretion to waive any laws necessary to build this fence.

        So the real question is whether the public would have standing to challenge this law as violating due process.  Maybe not, as the rights here are statutorily-created rights that are now, by statute, being subjected to administrative waiver by fiat.  Ordinarily, agency administrative action is subject to limited judicial review under the Administrative Procedures Act (5 U.S.C. something), but the "notwithstanding any other provision of law" provision means that the APA would be inapplicable.

        What comes next, of course, will be an unfettered grant of authority to the military to "waive" environmental laws that are proving inconvenient in its weapons (lead and other metals pollution) and sonar testing (dead dolphins and beached whales).

        Fuzzy only works for pets.

        by NotFuzzy on Tue Feb 08, 2005 at 09:47:36 AM PST

        [ Parent ]

  •  I love Article III analysis! (none)
    We definitely need more discussion of Article III, not to mention other aspects of Constitutional Law, in our every-day lives, and so I thank you for bringing it up.

    This attempt to deprive the courts of jurisdiction is so bogus.  I'm glad that the Supremes generally hate it when Congress tries to tell them what they can and can't adjudicate.

  •  Excellent work (none)
    I really like the Our Documents web site.
  •  Georgia10 = Excellent Job (none)
    Georgia10 is synonymus with "Thorough Research".  Once again quality work.  By the way, its worth mentioning that history shows that no matter which party put them on the bench, SC Judges hate to be told by Congress that they have no jurisdiction.  Its not in their nature to accept that out of hand.
  •  georgia (none)
    a lot of us had more of a problem with the delegation of law-suspending powers to one individual (DHS Sec). i think the delegation issue is on shakier legal footing than the "no review" clause. but, like you pointed out, the "no review" clause is, in itself, reviewable.
  •  Constitutional Law... (none)
    ...is the thing that slightly tempted me to pursue the law as a career. Fortunately for all concerned, the temptation quickly passed.

    But I still enjoy the mental exercise, so thank you for a great diary.

    "What is wanted is not the will to believe, but the wish to find out, which is the exact opposite." - Bertrand Russell

    by Mad Dog Rackham on Mon Feb 07, 2005 at 07:00:34 PM PST

  •  However ... (none)
    doesn't this all rest on the presumption that the Supreme Court will continue to hold in accordance with the precedents cited?

    Haven't some areas of the law undergone significant reversals in interpretation, like the commerce clause?

    And of course, the make up of the Court is always subject to future changes.

    Virtue cannot separate itself from reality without becoming a principle of evil.

    by badger on Mon Feb 07, 2005 at 08:27:47 PM PST

    •  Stare decisis (none)
      Is the concept you're refering to.

      But it is impossible that the Court would EVER allows Congress to preclude all Constitutional claims from judicial review.  The Court's very purpose is to interpret the Constitution.  To deny it it's basic, constitutional duty is a blatant violation of separation of powers, and would render the judicial branch useless.

      The Court, of course, would never allow that to occur, no matter how right-wing it may be.

      If the people lead, the leaders will follow.

      by Georgia Logothetis on Tue Feb 08, 2005 at 10:23:56 AM PST

      [ Parent ]

  •  It's unconstitutional (none)
    I'm not saying the courts would definitely see it that way, but it's pretty plain from reading Article III that the 'no judicial review' (presumably including constitutional challenges) makes the bill unconstitutional.

    Why?  The "with such exceptions as the Congress shall make" language of Article III only applies to the Supreme Court's appellate jurisdiction.  That's what Congress may alter.  

    The key is that "the judicial power...shall be vested" in SCOTUS and other, inferior courts, and that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..."  The Constitution, in mandatory language, requires that at least one federal court be there to hear ALL constitutional cases.  Congress can strip SCOTUS of its ability to review the lower court decision, but Congress cannot pass a statute denying any judicial review of a constitutional case.

    The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

    by Categorically Imperative on Tue Feb 08, 2005 at 12:37:34 AM PST

  •  Tip of the hat (none)
    Great job; I've bookmarked this one.

    You won't believe this, but when I was in law school 30 years ago, one of the Con Law profs put an Article III "court stripping" question on the final. My reaction: That could never happen. How wrong I was.

    In politics, sometimes the jackasses are on your side.

    by Dump Terry McAuliffe on Fri Feb 11, 2005 at 08:28:00 PM PST

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