	Background

The authority of Congress to regulate the jurisdiction, procedures and remedies available infederal courts is principally found in Article III of the United States Constitution. Federal district courts and courts of appeal (the inferior federal courts) are authorized to consider most questions of federal statutory and constitutional law, with appeal to the SupremeCourt. In general, most modern "court-stripping" proposals appear to be intended to increase statecourt involvement in constitutional cases by decreasing federal court involvement. There are at leastthree possible variations to these proposals. (15) Second, there are proposals to vest theexclusive jurisdiction to hear such constitutional cases in the state courts without appeal to theSupreme Court. (17) To the extent that theseremedy limitations actually prevent the vindication of established constitutional injury, they wouldappear to fall under the same category as proposals that limit the jurisdiction of particular courts.Thus, for instance, the amendment noted above which would prohibit the use of funds forenforcement of a particular district court decision, (18) would seem likely to be analyzed similarly toan amendment limiting lower court jurisdiction over constitutional cases. The Congress does not have theauthority to establish the jurisdiction of state courts, and consequently those "court stripping"proposals that relate to the inferior federal courts do not generally specify that state courts willbecome the primary courts for vindication of specified constitutional rights. Limiting Consideration of Specific Constitutional Issues to State Courts with No Supreme Court Review

This scenario requires evaluation of two aspects of Article III: the power of Congress to allocate federal judicial power and the power of Congress to create exceptions to the Supreme Court'sappellate jurisdiction under the Exceptions Clause. This limit arises from the previously notedfact that some types of federal "judicial power" are extended by the text of the Constitution to "all"such cases, i.e., cases arising under either the Constitution, federal law, treaty, admiralty or maritimejurisdiction, or cases affecting an Ambassador or other public Ministers or Consuls. Under this textual analysis, the power to consider cases concerning the Constitution must be vested in some federal court. Various such proposals have been made,such as the previously noted amendment limiting funds available to the courts for enforcement ofa particular court decision. (53)
Constitutional considerations other than separation of powers could also be at issue if proposed legislation was intended to significantly burden a particular group or to impair a fundamental right.It is generally agreed that a law that limited a federal court's power for an illegitimate constitutionalpurpose could run afoul of provisions of the Constitution apart from Article III. Conclusion

Congress's authority to limit the jurisdiction of inferior federal courts appears relatively broad, so that limiting the jurisdiction of these courts to consider particular constitutional cases is arguablywithin its Article III authority. Finally, elimination ofreview of constitutional issues by any court, state or federal, seems the least likely to surviveconstitutional scrutiny. It should be noted, however, that various commentators have suggested that any limitation of jurisdiction for a particular class of constitutional cases raises questions regarding both the separationof powers doctrine and the Equal Protection Clause. Thus, a resolution of these broader questions would depend on further judicial developmentsin this area.
Over the years, various proposals have been made to limit the jurisdiction of federal courts to hear cases regarding particular areas of constitutional law such as busing, abortion, prayer in school,and most recently, reciting the Pledge of Allegiance. Several such proposals passed the House in the108th Congress, including an amendment to H.R. 2799 to limit the use of funds toenforce a federal court decision regarding the Pledge of Allegiance; H.R. 2028 , to limitthe jurisdiction of federal courts to hear cases regarding the Pledge of Allegiance; and H.R. 3313 , to limit federal court jurisdiction over questions regarding the Defense ofMarriage Act. Generally, proponents of these proposals are critical of specific decisions made bythe federal courts in that particular substantive area, and the proposals are usually intended to expressdisagreement with cases in those areas and/or to influence the results or applications of such cases. Proposals of this type are often referred to as "court-stripping" legislation. The label arises from thefact that many of these proposals invoke the Congress's power to regulate federal court jurisdiction,i.e., the courts' power to consider cases of a particular class and in a particular procedural posture.It should be noted, however, that some proposals characterized as "court-stripping," rather thanfocusing on jurisdiction, address what remedies are available to litigants or what procedures mustbe followed to bring constitutional cases. Although the United States Congress has broad authorityto regulate in all three of these areas of judicial power -- jurisdiction, procedure and remedies --this authority is generally used to address broader issues of court efficiency and resource allocation.This report, however, is limited to proposals to allocate judicial power in a way that affects orinfluences the result in cases concerning specific constitutional issues.
There are at least three different types of "court-stripping" proposals: (1) limiting the jurisdiction of the inferior federal courts, (2) limiting the jurisdiction of all federal courts, and (3)limiting the jurisdiction of both state and federal courts together. While the Congress has broadauthority under Article III of the Constitution to regulate the jurisdiction, procedures and remediesavailable in state and federal courts, this power is generally not used as a means to affect substantivelaw. Consequently, the federal courts have only rarely faced the question of what happens when theCongress acts under Article III to limit substantive litigation, and the Supreme Court has not squarelyfaced a modern law limiting jurisdiction to affect or influence litigation of constitutional questions.Thus, an analysis of these proposals relies to some extent on textual analysis and scholarlydiscussion. Congress's authority to limit the jurisdiction of inferior federal courts appears relativelybroad, so that laws limiting the jurisdiction of the lower federal courts would appear to raise fewerconstitutional issues. Significant constitutional questions arise, however, with regard to whetherCongress could eliminate both inferior federal court and Supreme Court review of constitutionalmatters. Further, elimination of review of constitutional issues by any court -- state or federal court-- seems the least likely to survive constitutional scrutiny. Various commentators, however, havesuggested that limiting jurisdiction for any court for a particular class of cases raises questionsregarding both the separation of powers doctrine and the Equal Protection Clause.