In his law review article, Professor Henry Hart responded to the questions of whether Congress had unlimited control of federal jurisdiction and whether this control was consistent with other provisions in the Constitution. Though Professor Hart's article has been widely debated, his overarching thesis is generally accepted: Congress' power to restrict Supreme Court jurisdiction is bound by the requirement that the Court's “essential functions” may not be trammeled, but Congress' power to restrict lower federal court jurisdiction is broad. This Comment will build on Professor Hart's thesis, arguing that the essential functions of the federal judiciary are broader than what he and later commentators have purported. The federal judiciary's jurisdiction is protected by a three-tiered “essential functions” restriction. First, Congress may not abridge federal courts' essential functions within the tripartite system. Secondly, Congress may not abridge federal courts' essential functions as the “judicial power of the United States.” Finally, Congress may not violate any individual constitutional liberty in exercising its jurisdictional powers. Ultimately, by expanding Professor Hart's essential functions thesis, this Comment will demonstrate that this three-step test is necessary to analyze the constitutionality of any jurisdiction-stripping act within our tripartite system of government.Part II of this Comment will summarize the various theories of Congress' jurisdictional powers. Part III will examine the historical and philosophical roots of the Constitution and Congressional power. This section will illustrate that the framers' intent and the wording of the Constitution prevent Congress from altering the constitutional plan or preventing federal courts from performing its essential functions. Part IV will apply the preceding analysis to House Bill 3313 and ultimately conclude that Congress does not have the power to strip any federal court of the jurisdiction to hear same-sex marriage cases.
Jason J. Salvo, Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313, 29 SEATTLE U. L. REV. 963 (2006).