Abstract
It is the thesis of this article that the growing trend in the federal courts to refuse to exercise their assigned jurisdiction violates the doctrine of the separation of powers, and that the federal judiciary's excuses for refusing to perform their tasks do not pass constitutional muster. Specifically, this article will demonstrate that those excuses either do not rise to a level of constitutional concern sufficient to justify the trend or are based on a perversion of the admittedly constitutional concept of federalism, a concept affording the individual citizen a structural protection against arbitrary government in additionto the structural protection flowing from separated powers, not a concept that properly can be used to deprive the individual of federal protection. After establishing the inadequacies of the courts' excuses for refusing to decide cases, this article then points to the provisions of article III and article I, section 8, clause 9, of the Constitution to show that, given Congress's power to create within constitutional limits the jurisdiction of the federal judiciary, 30 and given that judiciary's power to decide all cases properly arising pursuant to Congress's constitutional exercise of its powers, the federal courts abrogate the separation doctrine, in effect destroying their own jurisdiction, however the practice is couched in nonjurisdictional rubric, whenever they refuse to exercise such jurisdiction by not deciding those cases which Congress has determined should be decided. In short, the federal courts have a duty to decide.
Recommended Citation
Harlan S. Abrahams and Brian E. Mattis, The Duty to Decide vs. The Daedalian Doctrine of Abstention, 1 SEATTLE U. L. REV. 1 (1977).
