Withdrawal of jurisdiction

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Withdrawal of jurisdiction refers to the power of Congress or state legislatures to limit the authority of federal and/or state courts,[1] to hear disputes over certain issues.

The first major bill passed by the First Congress, which included many of those who had drafted the Constitution, was the Judiciary Act of 1789 to establish the federal courts. Even though Article III, Sec. 2 of the U.S. Constitution states that "The Judicial Power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States," Congress withheld from the federal courts much jurisdiction.

In modern times, Congress has precluded courts from reviewing a challenge brought by "an alien who is removable by reason of having committed" an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), or a challenge to the agency's denial of discretionary relief, see 8 U.S.C. § 1252(a)(2)(B)(ii). See also Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006) ("[W]e lack jurisdiction over motions to reopen and reconsider in cases where we lack jurisdiction to review the underlying order."); Patel v. U.S. Att'y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003) (When a jurisdiction-stripping provision deprives the court of jurisdiction over the underlying order, "it strips us of jurisdiction to entertain an attack on that order mounted through filing of a motion to reopen."); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997) ("[W]here Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn.").

However, the jurisdiction-stripping provisions on which the government relies are both subject to the exception set forth in 8 U.S.C. § 1252(a)(2)(D), which restores our jurisdiction to review "constitutional claims or questions of law." See, e.g., Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 324 (2d Cir. 2006). As we explained in Xiao Ji Chen, we have "not determine[d] the precise outer limits of the term 'questions of law.'" Id. at 328. We have, however, suggested that a question of law arises "where a discretionary decision is argued to be an abuse of discretion because it was ... based on a legally erroneous standard." Id. at 329. We have also indicated that a "question of law" might "arise for example in fact-finding which is flawed by an error of law, such as might arise where the IJ states that his decision was based on petitioner's failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did testify to that fact." Id. (citing Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004)).

Complete Withdrawals of Jurisdiction

Perhaps the most complete federal withdrawal of jurisdiction was from ALL courts, federal and state:

26 USCS § 7421(a). Prohibition of suits to restrain assessment or collection.

(a) Tax. Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), and 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

Its constitutionality was upheld against a challenge in Schildcrout v McKeever, 580 F.2d 994 (9th Cir. 1978).

The "bailout" package proposed at the level of $700B, on or about September 19, 2008, contained this clause withdrawing jurisdiction:[2]

Sec. 8. Review. Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.

Withdrawals of Jurisdiction When There is a State Remedy

The Tax Injunction Act is a complete withdrawal of jurisdiction from federal court when there is a remedy in state court.

Withdrawal of Jurisdiction over Constitutional Challenges

Some have questioned whether Congress may withdraw jurisdiction completely from courts over constitutional issues. Studies of this issue have been inconclusive due to the lack of precedents precisely on point.[3] But there is no reason to expect limitations on this power of Congress. Indeed, many withdrawals of jurisdiction implicitly include constitutional challenges.

A more established approach is to withdraw pre-enforcement challenges to statutes, which would work regardless of constitutionality.

Other Withdrawals of Jurisdiction

12 U.S.C. § 1821(d)(13)(D) (Supp. II 1990) purportedly withdraws jurisdiction from all courts to hear claims against the RTC as receiver, except as provided elsewhere in section 1821(d). Section 1821(d)(13)(D) reads, in pertinent part:

"(D) Limitation on judicial review

Except as otherwise provided in this subsection, no court shall have jurisdiction over --

(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the Corporation has been appointed receiver, including assets which the Corporation may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the Corporation as receiver." (12 U.S.C. § 1821(d)(13)(D) (Supp. II 1990).)

The RTC argues that section 1821(d)(13)(D) acts as a jurisdictional bar which precludes any judicial action until a claimant has exhausted the administrative claims process.

Not all state courts have agreed with this withdrawal of jurisdiction. See, e.g., Armstrong v. Resolution Trust Corp., 157 Ill. 2d 49 (1993).

Jurisdiction has been withdrawn from courts over many orders of removal of aliens, by 8 U.S. Code § 1252.[4]

Contrary View

“Congress may not ‘withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity.’” Stern v. Marshall, 564 U.S. 462, 484 (2011) (emphasis added) (quoting Murray’s Lessee, 59 U.S. at 284).

See also


  1. See City of New York v. Beretta U.S.A. Corp. (2d Cir. 2008).
  2. https://www.reuters.com/article/bondsNews/idUSN2034655520080920
  3. http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-8144:1
  4. http://www.law.cornell.edu/uscode/text/8/1252