Congress will strip jurisdiction to bypass the court Donald S Dobkin attorney

Congress will strip jurisdiction to bypass the court

This preview shows page 355 - 356 out of 471 pages.

Congress will strip jurisdiction to bypass the court Donald S. Dobkin , attorney, “Court Stripping and Limitations in Judicial Review of Immigration Cases,” JUSTICE SYSTEM JURNAL v. 28 n. 1, 20 07 , p. 104. Congress has for years attempted to strip courts of their jurisdiction to review actions of federal law-enforcement agencies and state courts in order to reverse decisions they do not like, punish judges, or even avoid future rulings they may not like. Federal courts, which have been essential in expanding and preserving individual rights, are now being barraged by congressional attempts to strip the courts of their power to review. Congress’s decisions about the courts’ jurisdiction, including appellate jurisdiction, have considerable effects on their caseloads, although not always in ways that might have been anticipated. Nowhere has this trend been more apparent than in Congress’s legislation in the immigration area. With the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a Republican Congress and the Clinton administration fundamentally altered judicial review of immigration matters. Despite this legislation restricting judicial review, the caseload at the U.S. Court of Appeals has risen markedly, so much so that immigration cases now comprise 18 percent of the federal appellate civil docket. Stripping undermines the rule of law and judicial independence Michael J. Gerhardt , Professor, Law, William & Mary, “The Constitutional Limits to Court-Stripping,” LEWIS & CLARK LAW REVIEW v. 9 n. 2, 20 05 , p. 359-360. Another aspect of federalism, to which I have alluded, is that it is not just concerned with protecting the states from federal encroachments. It also protects the federal government and officials from state encroachments. In a classic decision in Tarble's Case, the Supreme Court held that the Constitution precluded state judges from adjudicating federal officials' compliance with state habeas laws. The prospect of state judges exercising authority over federal officials is not consistent with the structure of the Constitution. They could then direct, or impede, the exercise of federal power. The Act, however, allows state courts to do this. By stripping all federal jurisdiction over certain claims against federal officials, the Act leaves only state courts with jurisdiction over claims brought against those officials. It further leaves only to the state courts enforcement of the provisions of the Bill pertaining to federal officials. The popular will might lead state judges to be disposed to be hostile to federal claims or federal officials. Hostility to the federal claims poses problems with the Fifth Amendment, while hostility to federal officials poses serious federalism difficulties. Beyond the constitutional defects with the Act, it may not be good policy. It may send the wrong signals to the American people and to people around the world. It expresses hostility to our Article III courts, in spite of their special function in upholding constitutional rights and enforcing and interpreting federal law. If a branch of
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  • Winter '07
  • COOLEY

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