[Texas Federalist]

There is no authority for the proposition that Congress cannot remove a constitutional question from the jurisdiction of the federal courts altogether, although the topic is a subject of much debate. In the only case that directly addressed this issue, the Supreme Court upheld Congress's power to restrict the Court's appellate jurisdiction. In Ex Parte McCardle (1869), the Court unanimously upheld Congress's power to limit its jurisdiction, stating that "the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction, the court cannot proceed at all in any case." Although scholars argue that Congress cannot restrict the Supreme Court's jurisdiction to the extent that it intrudes upon the Court's "core functions," there is no question that Congress has more authority under the Constitution to act than it has recently exercised.

Also, I disagree that if it were easy to remove issues from the jurisdiction of the federal judiciary, that the liberals would have done so long ago. We all know that the liberals have benefitted more from a strong judiciary and would not want to travel down the slippery slope of limiting its power. I think the conservatives have just been too timid to do so.

[steve-b]

It boils down to the description of original jurisdiction versus appellate jurisdiction. By the description of the judicial power in Article III, "all Cases, in Law and Equity, arising under this Constitution" must fall within the original jurisdiction of some federal court, either the Supreme Court or a lesser court created by Congress (Congress can decide which, except for a list later in Article III that are specifically reserved to the Supreme Court). Congress can constrain the appellate jurisdiction of the Supreme Court, and the original and appellate jurisdiction of lesser courts, which would have the effect of making the highest court that did have jurisdiction over a given case the "last word" setting precedents on the matter for its district of jurisdiction.