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To: AuH2ORepublican
Article III, Section 1 says that the federal judicial power shall extend to all cases arising under federal laws or the U.S. Constitution, and thus a court may conclude that Congress violated Article III, Section 1 if it took the power to review "arising under" cases from all federal courts.

Congress has already done this at least once before. In 2002, it stripped all federal courts of jurisdiction to hear suits challenging brush clearing in the Black Hills. So far the courts haven't stricken that down.

But looking beyond that, I think the words of Article III are clear in that they're defining the full extent of the judicial power of the United States. But the fact that the power exists doesn't mean it must be exercised, and Congress was given power over whether it shall be exercised.

It wasn't even a foregone conclusion when the Constitution was ratified that there even would be lower federal courts. During the drafting of it, there was a sharp debate between those who wanted there to be no lower federal courts at all, and those who wanted the Constitution to mandate their existence. The compromise that was adopted was for Congress to be given the power to decide the question. Since there was a very distinct possibility that there wouldn't be lower federal courts at all, it's hard to imagine that there was some kind of implied limitation to Congress's power to restrict SCOTUS's appellate jurisdiction, that said that they must transfer it to some lower court that might not even have been created. It seems pretty clear that if such a limitation had been intended, it would have been explicit.

63 posted on 05/13/2005 7:08:29 AM PDT by inquest (FTAA delenda est)
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To: inquest

"Since there was a very distinct possibility that there wouldn't be lower federal courts at all, it's hard to imagine that there was some kind of implied limitation to Congress's power to restrict SCOTUS's appellate jurisdiction, that said that they must transfer it to some lower court that might not even have been created."



The argument is that, if Congress had not created any "inferior courts," then it could only limit the Supreme Court's appellate jurisdiction by adding the type of case to the Court's original jurisdiction.

I hadn't heard about the Black Hills law, but I'm surprised that environmental groups haven't challenged it.

I hope a state court doesn't rule that clearing brush from the Black Hills violates the U.S. Constitution, because if it does there will be no way to take the case to federal court.


68 posted on 05/14/2005 1:33:34 PM PDT by AuH2ORepublican (Extremism in the defense of liberty is no vice, moderation in the pursuit of justice is no virtue.)
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