Issue 5

Jurisdiction-Stripping Reconsidered

The literature exploring Congress’s power to “strip” jurisdiction from the federal courts has focused too narrowly on the text and original understanding of Article III. Even when analysis can profitably begin there, it is it often a fallacy to believe that it can terminate without consideration of other factors. Exclusively originalist analyses of Congress’s powers over jurisdiction cohere badly with, and often make little sense in light of, non-originalist doctrines defining substantive constitutional rights. The Supreme Court’s recent decision in Boumediene v. Bush, invalidating a jurisdiction-stripping provision under the Suspension Clause, provides a partial template for reconsideration of jurisdiction-stripping issues. As Boumediene illustrates, participants in jurisdiction-stripping debates need to reckon with issues of constitutional theory involving the appropriate synthesis of original understandings, when they are identifiable, with non-originalist doctrines and functional considerations. 

The synthesis advocated in this Article reflects three broad themes. First, notwithstanding contrary language in a nineteenth century precedent, Congress’s purpose in enacting jurisdiction-stripping legislation may matter crucially to the question of constitutional validity. Legislation enacted for the purpose of inviting lower court defiance of Supreme Court precedents should be held unconstitutional under modern authorities that make constitutional permissibility depend on legislative motives. Second, Congress cannot use its power to control jurisdiction to preclude the award of constitutionally necessary remedies. In many cases, constitutional rights first recognized in the twentieth and twenty-first centuries entail rights to injunctions when no other remedy is available. Third, issues involving congressional preclusion of judicial jurisdiction are often bound up with issues involving the permissible use of non-Article III federal tribunals such as administrative agencies. Even when initial adjudication by a non-Article tribunal is permissible, as it was inBoumediene, the Constitution typically requires some mode of access to a constitutional court. 

The Foreign Commerce Clause

This Article is the first scholarly work to comprehensively address Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s power. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and offers a doctrinally and conceptually sound approach to the Clause based on the text, structure and history of the Constitution. It also engages broader legal and policy questions triggered by the Clause involving federalism, separation of powers, foreign affairs, and individual rights. As I show, the Clause is crucial to how Congress constitutionally may project U.S. law around the world.

The Article advances two key limits on Congress’s foreign commerce power and reformats the Supreme Court’s three-category commerce framework for the Foreign Commerce Clause in light of these limits. The first is the nexus requirement, which derives from the Constitution’s grant of power only to regulate commerce “with foreign Nations,” not a general, global power to regulate commerce “among foreign Nations.” Foreign commerce that is the subject of federal regulation therefore not only must be “with” foreign nations, but also “with” the United States—that is, there must be a U.S. nexus. The second limit I refer to as the foreign sovereignty concern. It holds that Congress has no more power and, in some contexts, has less power to regulate inside foreign nations under the Foreign Commerce Clause than it has to regulate inside the several U.S. states under the Interstate Commerce Clause. For example, Congress cannot create comprehensive global regulatory schemes over international markets or prevent races to the bottom among the world’s nations the same way it can create comprehensive national regulatory schemes over domestic markets and prevent races to the bottom among the states. Because Congress lacks authority to create such global schemes in the first place, it cannot claim authority to reach local foreign conduct that threatens to undercut those schemes the same way it can reach local intrastate conduct in order to effectuate regulation “among the several States.”

The Hapless Ecosystem: A Federalist Argument in Favor of an Ecosystem Approach to the Endangered Species Act

The Endangered Species Act (ESA), first passed in 1973, is possibly the most wide-ranging of the protective environmental statutes. Grounded in Congress’s ability to regulate interstate commerce, it purports to protect biodiversity by keeping animal species from going extinct. Although there have been numerous challenges to the ESA on the basis that it goes beyond Congress’s power under the Commerce Clause, all of these were narrowly defeated in the Courts of Appeals. With the recent appointments to the Supreme Court, however, the Act remains vulnerable. Shifting the Act to focus on ecosystems, rather than on individual species, could insulate it from additional federalism challenges. Ecosystems are more directly tied into interstate commerce and the economy than individual species through a number of factors, including “ecosystem services.” Since biodiversity is important to maintaining ecosystem health, Congress could still protect endangered species as a part of ecosystems while maintaining a link to interstate commerce. Although this could lead to some changes in scope to the Act, it remains the most faithful way to keep Congress’s intention of protecting biodiversity, but still avoiding constitutional concerns. 

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