Removal of Jurisdiction: the Solution to the “Birthers”

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.


  1. I must say I find the idea of permanently stripping federal courts of powers because of a temporary, politically based, annoyance short-sighted in the extreme.

    Firstly because of the precedent it will set. How can the Democrats possibly criticise a future Republican (or succeeding party) president or congress of stripping courts of power for political leverage if they do it themselves?

    Second, a more far fetched reason but we will play along, what if a circumstance does arrive when there actually is an ineligible person holding onto the presidency and congress is unwilling to act? Surly then you would want to return those powers to the courts.

    Fining people who are brining about frivolous lawsuits is the right way of dealing with these problem, because you hear their case, then hand out the punishment if it is found to be frivolous. Assuming all cases of this nature are frivolous without hearing them and blocking court access is a gross violation of due process.

  2. Was the $20K fine enough? Maybe when Taitz becomes a real lawyer she will appreciate what just happened. I wonder if she is a mail order bride, just like her law degree? She is perfect reporter material for “Fake News”, where unfounded rumors and innuendo reign supreme , unlike a our US courts of law, where you need to present documented facts, not half baked lies (prepare for more failures).

    When flies get too close to the lights they get burned, Taitz just got burned, thing is, like a fly she will continue, no end in sight. Poor little Birthers they are haters not debaters.

    A lawyer, dentist, realtor and black belt, wow I must say a JACK of all trades master of none.

    1. I wonder if she is a mail order bride, just like her law degree?

      I know that is not a true ad hominem, but do you have to get so personal. Whilst you may not agree with her, there is no need for disparaging remarks like that.

  3. […] a hell of a way to control docket congestion: with one stroke, Congress could (but won’t) eliminate wasteful and insulting litigation. And it’s not without history: during Reconstruction, Congress revoked military […]

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