It’s almost a truism that the resources of the federal judiciary are precious, and not to be squandered needlessy. In habeas review of state convictions, for example, we bend over backwards to keep potentially duplicative litigation out of the federal courts, in deference to cost, and notions of federalism. But what of those latest paradigms of judicial uselessness, the “birthers”? Despite nearly a dozen suits filed, no such suit questioning President Obama’s eligibility to serve has gone anywhere, but the birthers keep coming back, and the federal bench is rightly losing patience. Can we do anything to kick them out of court, all of them, once and for all?
Yes — we can. Although traditional notions of issue & claim preclusion (barring relitigation between equivalent parties) won’t stop new birther “attorneys” from taking up arms after their comrades fall, we could solve the issue by getting Congress to withdraw from the jurisdiction of the lower federal courts all claims arising out of the “natural born citizen” clause. U.S. Const., Art. II, § 1, cl. 5.
Recall that although the Constitution requires the creation of a Supreme Court, it does not require the creation of federal courts, at all. U.S. Const., Art. III, § 1:
The judicial power of the United States shall be vested in one Suprme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
This was the Madisonian Compromise — a way to assuage antifederalists by postponing until a later date the question of the nature of the federal judiciary. As such, there’s an argument that the greater power (Congress need not have created, and may therefore eliminate, the lower courts) includes the lesser power (the power to limit the lower courts’ jurisdiction). See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). Therefore, subject to external limits, Congress could bar the lower federal courts from hearing claims questioning the president’s citizenship, a conclusion confirmed with additional supporting reasoning in Sheldon v. Sill, 49 U.S. 441 (1850).
We generally see arguments in favor of “jurisdiction stripping,” as the practice is known, from the right, when hard-line conservatives argue for Congress to bar the federal courts from hearing any lawsuit that would establish a right to an abortion, to gay marriage, or to be free from religious indoctrination in the public square. This type of legislation ought to be troubling. If judicial review is to have any meaning, courts must be able to determine the meaning or extent of fundamental freedoms. However, no such values are implicated when Congress simply puts an end to a particular breed of vexatious, duplicative, and expensive litigation. That’s just Congress looking out for a coordinate branch.
Stripping the lower federal courts of jurisdiction wouldn’t be a complete solution. State courts would remain open to birther insanity — in most cases, state courts either can or must hear federal claims, Taffin v. Levitt, 493 U.S. 455 (1990); Testa v. Katt, 33o U.S. 386 (1947) — and the Supreme Court could still take appellate review of any suits that eventually wound their way through the state system. While Congress can also, in theory, eliminate Supreme Court appellate jurisdiction — see U.S. Const., Art. III., § 2, cl. 2 — the doctrine here is more muddled, and rightly so. But cutting out the lower courts is a step in the right direction, and a powerful signal that, especially when government resources are sparse, the law is not a game.
Besides, based on Judge Land’s experience with Orly Taitz, the federal bench would probably welcome the loss of authority, such as it is.