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 certiorari jurisdiction did not deprive it of jurisdiction to consider original petitions for habeas. AEDPA would “inform” its consideration of such petitions, the Court said, but not exert a preclusive effect.

The Detainee Treatment Act of 2005, as amended by the Military Commissions Act of 2006, purported to strip all courts of the United States, including the Supreme Court, of habeas corpus jurisdiction in all cases brought by noncitizens being detained as enemy combatants. (Congress instead tried to provide a substitute for habeas corpus: providing the D.C. Circuit with limited review of detention decisions made by non-Article III military tribunals.) But the Supreme Court held in Boumediene v. Bush that the withdrawal of habeas jurisdiction violated the Suspension Clause of Article I, Section 9 of the Constitution, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Court did not opine on jurisdiction stripping outside of the habeas context.

Overall, the Constitution gives Congress power to limit the Supreme Court’s appellate jurisdiction. This was the conclusion of the various experts who testified before this Commission on the issue. However, Congress’s jurisdiction-stripping power is not unlimited, and neither the Court’s jurisprudence nor past practice fully defines its reach or scope. Thus, the constitutionality and policy merits or demerits of jurisdiction-stripping proposals are contingent on the proposals’ details. We evaluate those details below.

In this Section, we consider proposals to strip courts of their jurisdiction to review the constitutionality of federal and state legislation. Jurisdiction-stripping legislation might also seek to shield executive action from judicial review, though we are aware of fewer proposals to do so. Our analysis necessarily takes a selective approach, given the many possible kinds of jurisdiction-stripping measures. We focus mostly on issue-specific jurisdiction-stripping legislation that would seek to disempower courts from ruling on a specific law or type of law. Examples include proposals that would bar jurisdiction over challenges to a wealth tax or to a law regulating abortion. We omit discussion of most general jurisdiction-stripping bills, such as those that exclude relatively unimportant cases (as measured by dollar amount, for example) from the federal courts. We do consider general jurisdiction-stripping efforts insofar as they would seek to temper or eliminate the federal courts’ authority to declare legislation unconstitutional, and thereby to decrease the courts’ power relative to other institutions of government.