Constitutional Pathology, the War on Terror, and United States v. Klein

Wasserman, Howard M.

doi:10.2139/ssrn.1659043

SSRN Journal

2010

DOI: 10.2139/ssrn.1659043

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Constitutional Pathology, the War on Terror, and United States v. Klein

Howard M. Wasserman

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2012

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The Exceptions Clause as a Structural Safeguard

Grove

2012

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Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court's central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad "exceptions power" to facilitate, not to undermine, the Supreme Court's constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court's role in settling disputed federal questions. Notably, this argument has considerable historical support. When the Supreme Court's mandatory appellate docket grew to the point that it was unmanageable for a single tribunal, Congress responded by exercising its authority under the Exceptions Clause. Congress made "exceptions" to the Court's mandatory appellate jurisdiction and replaced it with discretionary review via writs of certiorari-precisely so that the Court could concentrate its limited resources on resolving important federal questions. Thus, contrary to conventional wisdom, Congress has often used its broad exceptions power to safeguard the Supreme Court's role in the constitutional scheme.

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The Exceptions Clause as a Structural Safeguard

Grove

2012

SSRN Journal

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Constitutional Pathology, the War on Terror, and United States v. Klein

Cited by 1 publication

References 23 publications

The Exceptions Clause as a Structural Safeguard

The Exceptions Clause as a Structural Safeguard

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