Document Type

Working Paper

Publication Date

3-24-2011

SSRN Discipline

Economics Research Network; Legal Scholarship Network; PSN Subject Matter eJournals; Public Choice & Political Economy eJournals; Administrative Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; ERN Subject Matter eJournals; Political Institutions eJournals; Political Science Network

Abstract

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary Scholars have thus overlooked the important and surprising role that the executive branch has played in these jurisdictional struggles I seek to fill that void Drawing on two strands of social science research I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdictionstripping measures Notably this structural argument has considerable historical support The executive branch has repeatedly opposed jurisdictionstripping proposals in Congress That has been true even when the President was otherwise deeply critical of the federal courts' constitutional jurisprudence such as during the Franklin Roosevelt and Reagan Administrations Furthermore even when jurisdictionstripping measures do become law the executive branch controls the enforcement of that law The Department of Justice has repeatedly used this enforcement authority to urge the courts to interpret jurisdictional restrictions narrowly in order to preserve jurisdiction over constitutional claims This executive branch practice has important implications for the Obama Justice Department as it litigates cases brought by current and former detainees in the war on terror One provision of the Military Commissions Act of 2006 appears to preclude any court from examining a detainee's challenge to his "conditions of confinement" during his detention The executive branch could substantially limit the impact of this law by conceding as it has in prior administrations that the federal courts retain jurisdiction over constitutional claims

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