Josh Chafetz asserts that H.R. 3313 IS NOT CONSTITUTIONAL (his capitalization). His reasoning is all well and good but it does seem to omit any sort of explanation of how US federal courts that are not the Supreme Court get any judicial power whatsoever. If a court is created by statute, the Congress is the body granting jurisdiction, no? And Whatsoever Congress grants, Congress can take away. A court created by Congress, could even be closed up and done away with entirely so what makes this lesser reduction of authority somehow illegitimate?
You could have some sort of argument about the (male) ambassador of the UK getting married to another man and applying for some sort of spousal benefit in Virginia and suing for original jurisdiction remedy in the USSC but that's not what people are worried about here.
The reality is that the judicial power of a subsidiary court to take up a question is either based in the Congressional authorizing statute which lays out their jurisdiction (and thus amendable by act of Congress, like HR 3313) or it flows from the Supreme Court itself, which can only grant to its subordinate bodies what powers it already has. If it can't do something, what Constitutional power does a lesser court have that is denied to the highest judicial body in the US?
If you were to take this argument seriously, what stops the 9th Circuit from hearing appeals outside its territory? The only thing that stops it is the Congressional authorizing statute that says you don't have jurisdiction. But if Congress' assertions of limits on jurisdiction are not legitimate in the case of gay marriage cases, why are they legitimate in the case of territory or other subject matter, like special courts for terrorism, maritime law, etc?
The idea that Congress cannot amend jurisdiction is both ahistorical and simply unworkable. Amendments of jurisdiction according to territory are no different than amendments of jurisdiction according to subject matter and both have been done in the past without major controversy. The major difference is that this measure strips jurisdiction without providing another federal body to take it up. It thus remains in the hands of the states, something that the anti-federalists who demanded the 9th and 10th amendments would no doubt find very satisfying.
Posted by TMLutas at July 24, 2004 06:26 PM