Jurisdictional Quandaries: A Way Forward

Abstract

From the founding, the authority of Congress to delineate the jurisdiction of the federal courts occasioned debate. And for good reason. The power to define jurisdiction is the power to determine which categories of cases will or will not be heard by the federal courts. And it turn it is the power to determine which laws will be enforced and which rights protected. It has long been recognized that Congress may regulate jurisdiction, not only by specifying the particular categories of cases that federal courts may hear, but also by regulating the manner and timing in which those cases come before the federal courts. Whether or not Congress intended a particular precondition to suit to operate jurisdictionally is not always clear, however, and the Supreme Court’s method of interpretation has fluctuated wildly. The early Court adopted in effect a presumption in favor of jurisdictional treatment and dismissed nonconforming cases. In a one-hundred-and-eighty-degree shift, the current Court has adopted a presumption against finding a precondition to suit to be jurisdictional. As the Court now has it, a precondition is jurisdictional only where Congress so “clearly states.” This sea-change in approach has led to a sea-change in outcome with the Court finding that it has jurisdiction in nearly every recent case. The Court’s new method for interpreting preconditions to suit has significant practical and theoretical implications. As a practical matter, the single most important question in a lawsuit is whether the court has jurisdiction. For a jurisdictional bar is absolute: It may not be waived, meritorious excuses are irrelevant, and courts must consider the question sua sponte. The theoretical question is just as important, implicating foundational separation of powers issues. The Supreme Court’s current thumb on the scale in favor of federal court jurisdiction results in an expansion of Art. III and intrudes upon Congress’s Art. I power to define jurisdiction. This Article argues for a return to first principles of statutory interpretation. Part I analyzes the Supreme Court’s treatment of preconditions to suit. The approaches taken by the Marshall, Taney, and current Courts are examined in detail. Part II considers the doctrinal and theoretical underpinnings of the Court’s current approach and concludes that the approach is wrong-headed. First, the Court’s use of the claims processing, substantive, and jurisdictional labels are unhelpful and divert the Court from the proper question of congressional intent. Second, the Supreme Court’s occasional application of stare decisis and purpose creates significant tension with the clear statement rule. Finally, the Court’s clear statement rule lacks theoretical justification. Given that such substantive canons alter the ordinary rules of statutory interpretation and impose a clarity tax on Congress, they are ordinarily reserved for weighty constitutional concerns. Yet the only justification proffered for the Court’s current clear statement approach is efficiency. Efficiency is an insufficient ground upon which to expand Article III jurisdiction. Moreover, the constitutional concerns cut in the opposite direction; within constitutional limits, it is for Congress to determine the federal courts’ jurisdiction. The Court’s clear statement approach, however, requires federal courts to load the dice in favor of their own jurisdiction rather than engage in more ordinary statutory interpretation. Part III thus proposes a way forward in interpreting preconditions to suit and identifies key factors in determining whether such preconditions are in fact jurisdictional. Part III also demonstrates that the mode of interpretation matters, applying a proper jurisdictional analysis to recent Supreme Court cases and to the Anti-Injunction Act with surprising results.