The Power of Congress To Limit The Jurisdiction of Federal Courts: An Exercise in Dialectic

THE POWER OF CONGRESS TO LIMIT THE
JURISDICTION OF FEDERAL COURTS:

AN EXERCISE IN DIALECTIC
Henry M. Hart,Jr. *
INTRODUCTORY NOTE
he reports are full of what may be thought to be injudiciously

unqualified statements of the power of Congress to regulate
the jurisdiction of the federal courts.
Before the close of the eighteenth century, Justice Samuel
Chase observed that "the political truth is, that the disposal of
the judicial power (except in a few specified instances) belongs
to congress. If congress has given the power to this court, we pos' Speaking in mid-nineteenth cen2' 1..
sess it, not otherwise .
tury of the inferior federal courts, Justice Grier said flatly, "Courts
created by statute can have no jurisdiction but such as the statute
confers." ' 2 No longer than ten years ago Chief Justice Stone
spoke, if anything, with added emphasis: "The Congressional
power to ordain and establish inferior courts includes the power 'of
investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact
degrees and character which to Congress may seem proper for the
public good.' " And in perhaps the most spectacular of historic
* Professor of Law, Harvard Law School. A.B., Harvard, 1926, LL.B., 1930,
S.J.D., 1931.
'Turner v. Bank of North America, 4 Dall. 8, io n.i (U.S. 1799). Even though
diversity of citizenship existed between the plaintiff and the defendant, an action
on a promissory note was dismissed for lack of jurisdiction, since it was not
affirmatively shown that the requisite statutory diversity existed between the
original promisee and the defendant.
2 Sheldon v. Sill, 8 How. 441, 449 (U.S. 18o) (no statutory jurisdiction in
foreclosure action when mortgagor and mortgagee were residents of same state,
even though there was diversity between mortgagor and mortgagee's assignee).
ILockerty v. Phillips, 319 U.S. 182, 187 (1943), upholding a denial of jurisdiction to federal district courts and state courts to enjoin enforcement of OPA
regulations, a special statutory procedure having been provided for administrative
protest and appeal to a specially constituted court of appeals. Chief Justice
Stone's quotation is from Cary v. Curtis, 3 How. 236, 245 (U.S. 1845). See pp.
1367-69 infra.
1362
1953]
CONTROL OF FEDERAL JURISDICTION
1363
examples a unanimous Supreme Court recognized the power of

Congress to frustrate a determination of the constitutionality of
the post-Civil War reconstruction legislation by withdrawing, during the very pendency of an appeal, its jurisdiction to review decisions of the federal circuit courts in habeas corpus. "[T]he
power to make exceptions to the appellate jurisdiction of this
court is given by express words," Chief Justice Salmon P. Chase
said. "Without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it ceases
to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." 4
Are these pronouncements to be taken at face value? How, if
so, can they be reconciled with the basic presuppositions of a
regime of law and of constitutional government? These are the
central questions explored in the discussion which follows.
The discussion is taken from a forthcoming volume of teaching
materials which Professor Herbert Wechsler of Columbia and I
have edited, 5 and it has profited greatly from his collaboration.
The purpose of the discussion is not to proffer final answers but
to ventilate the questions and, in particular, to indicate the very
distinct types of situations in which they may be presented. As
will be observed, full advantage has been taken of the ambivalence
of the dialogue form; and, beyond that, some matters have been
left without benefit even of a unilateral expression of opinion.
I.
LIMITATIONS AS TO WHICH COURT HAS JURISDICTION
Q. Does the Constitution give people any right to proceed or

be proceeded against, in the first instance, in a federal rather than
a state court?
A. It's hard to see how the answer can be anything but no, in
view of cases like Sheldon v. Sill I and Lauf v. E. G. Skinner &
Co., 7 and in view of the language and history of the Constitution
itself. Congress seems to have plenary power to limit federal
4
Ex parteMcCardle, 7 Wall. 5o6, 514 (U.S. i868).
'HART
AND WECuSLER, THE FEDERAL CouRTs AND TME FEDERA
SYSTEm, which
will be published in September, 1953, by The Foundation Press, Inc., of Brooklyn, N. Y.

e 8 How. 441 (U.S. i85o), see note 2 supra.
S303 U.S. 323 (1938) (enforcing provisions of Norris-LaGuardia Act denying
jurisdiction to federal district courts to grant injunctions in labor disputes in
absence of certain findings of fact).
1364
HARVARD LAW REVIEW
[Vol. 66
jurisdiction when the consequence is merely to force proceedings

to be brought, if at all, in a state court."
Q. But suppose the state court disclaims any jurisdiction?
A. If federal rights are involved, perhaps the state courts are
under a constitutional obligation to vindicate them.9 There are
cases, like Testa v. Katt,10 and General Oil Co. v. Crain," which
seem to say so.
Q. But even assuming the obligation, and I gather it's something of an assumption, only the Supreme Court can enforce it if
the state courts balk. The McCardle 12 case says that the appellate jurisdiction of the Supreme Court is entirely within Congressional control.
A. You read the McCardle case for all it might be worth
rather than the least it has to be worth, don't you?
Q. No, I read it in terms of the language of the Constitution 's
and the antecedent theory that the Court articulated in explaining
its decision. This seems to me to lead inevitably to the same result, whatever jurisdiction is denied to the Court.
A. You would treat the Constitution, then, as authorizing ex/ ceptions which engulf the rule, even to the point of eliminating the
appellate jurisdiction altogether? How preposterous!
Q. If you think an "exception" implies some residnuu of juris/ diction, Congress could meet that test by excluding everything but
patent cases. This is so absurd, and it is so impossible to lay down
any measure of a necessary reservation, that it seems to me the
language of the Constitution must be taken as vesting plenary
control in Congress.
8
Note, however, that the result of this is to deprive diversity plaintiffs like Sill
of any access at all to a federal court. Is this material? Would Congress have
power to authorize Supreme Court review of state court decisions in diversity of
citizenship cases? Cf. Plaquemines Tropical Fruit Co. v. Henderson, i7o U.S. 5Ii
(1898).
9 Of course, if a state court does adjudicate a controversy, the Supremacy
compels it to observe federal law. The point in question is whether the
state is bound to provide a forum.
10 330 U.S. 386 (1947) (Supremacy Clause requires state courts to enforce treble
damage provisions of federal price-control legislation even though action was regarded by state courts as penal).
21 209 U.S. 211 (io8) (state court must entertain a bill to enjoin state officials
from enforcing an allegedly unconstitutional tax despite state statutes withdrawing
jurisdiction from state courts in such cases).
11 Ex parte McCardle, 7 Wall. 5o6 (U.S. 1868).
13 U.S. CoNsT., Art. II, 2: "In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with
such Exceptions, and under such Regulations as the Congress shall make."
I/Clause
:1953]
1365
A. It's not impossible for me to lay down a measure. The

measure is simply that the exceptions must not be such as will
destroy the essential role of the Supreme Court in the constitutional plan. McCardle, you will remember, meets that test. The
circuit courts of the United States were still open in habeas corpus,
and the Supreme Court itself could still entertain petitions for
the writ which were filed with it in the first instance. 4
Q. The measure seems pretty indeterminate to me.
A. Ask yourself whether it is any more so than the tests which
the Court has evolved to meet other hard situations. But whatever the difficulties of the test, they are less, are they not, than
the difficulties of reading the Constitution as authorizing its own
destruction?
Q. Has the Supreme Court ever done or said anything to suggest that it is prepared to adopt the view you are stating?
A. No, it has never had occasion to. Congress so far has
never tried to destroy the Constitution.
Q. Passing to another question, does the Constitution give
people any right to proceed or be proceeded against in one inferior
federal constitutional court rather than another?
A. As to civil plaintiffs, no. Congress has plenary power to
distribute jurisdiction among such inferior federal constitutional
courts as it chooses to establish.
As to civil defendants, the answer almost certainly is also no.
To be sure, doubts are occasionally suggested about the validity
in all circumstances of nation-wide service of process, but they
don't seem to me to have much substance. 15
As to criminal defendants, of course, the answer is controlled
by the express language of the Constitution - Article III, Section
2,
Paragraph 3,16 and the Sixth Amendment.lr
Q. Does the Constitution give people any right to proceed or

14
Ex parte Yerger, 8 Wall. 85 (U.S. 1869), a petition in the Supreme Court
for habeas corpus and a common law writ of certiorari. Again, however, a decision
on the constitutionality of the Reconstruction Acts was prevented -this time by
releasing Yerger from the challenged military custody. See 2 WARE, THE
SUPREMM COURT 3W UNITED STATES HISTORY 496-97 (1937 ed.).

'5
16
See Robertson v. Railroad Labor Bd., 268 U.S. 61g (1925).

"The Trial of all Crimes . . . shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State, the Trial
shall be at such Place or Places as the Congress may by Law have directed."
"f"Inall criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the crime
shall have been committed .... )
1366
HARVARD LAW REVIEW
[Vol. 66
be proceeded against, in the first instance, in an inferior federal

constitutional court rather than a federal legislative court?
A. As to criminal defendants charged with offenses committed
in one of the states, surely. As to others, it's hard to say. The
answer may well vary for civil plaintiffs and civil defendants.
And it must vary, must it not, according to the nature of the right
in question and the availability and scope of review in a constitutional court.1 8
II.
LMTATIONS OF JURISDICTION TO
PARTICULAR KINDS OF
Y1
\
GIVE
REMEDIES
Q. The power of Congress to regulate jurisdiction gives it a

pretty complete power over remedies, doesn't it? To deny a
remedy all Congress needs to do is to deny jurisdiction to any
court to give the remedy.
A. That question is highly multifarious. If what you are asking is whether the power to regulate jurisdiction isn't, in effect, a
power to deny rights which otherwise couldn't be denied, why
don't you come right out and ask it?
Before you do, however, I'll take advantage of the question to
make a point that may help in the later discussion. The denial
of any remedy is one thing - that raises the question we're postponing. But the denial of one remedy while another is left open,
or the substitution of one for another, is very different. It must
be plain that Congress necessarily has a wide choice in the selection of remedies, and that a complaint about action of this kind
can rarely be of constitutional dimension.
Q. Why is that plain?
A. History has a lot to do with it. Take, for example, the tradition of our law that preventive relief is the exception rather than
the rule. That naturally makes it hard to hold that anybody has
a constitutional rightto an injunction or a declaratory judgment.?
But the basic reason, I suppose, is the great variety of possible
remedies and the even greater variety of reasons why in different
situations a legislature can fairly prefer one to another. That
'sCf. Ex parte Bakelite Corp., 279 U.S. 438 (1929). See Katz, Federal Legislative Courts, 43 Hav. L. Rav. 894 (1930); Notes, 46 HARv. L. Rav. 677 (1933);
34 Coi. L. REV. 344, 746 (1934). See also note 26 infra.
" For cases suggesting that due process requires an opportunity to apply to a
court for an interlocutory stay of a state administrative order challenged on constitutional grounds, see Pacific Tel. & Tel. Co. v. Kuykendall, 265 U.S. x96, 204-05
(1924); Porter v. Investors Syndicate, 286 U.S. 46z (1932).
1953]
1367
usually makes it hard to say, when one procedure has been provided, that it was unreasonable to make it exclusive. Witness,
for example, the Yakus 20 case and, even more strikingly, the more
21
familiar examples cited in the Yakus opinion.
Q. Please spell that out a little bit.
A. Tax remedies furnish one of the best illustrations.
More than a hundred years ago in Cary v. Curtis2 2 the Supreme
Court distressed Justice Story and many other people by holding
that Congress had withdrawn the traditional right of action against
a collector of customs for duties claimed to have been exacted illegally. Congress soon showed that it had never intended to do
this, by restoring the right of action. But meanwhile the misunderstanding of the statute had produced a notable constitutional
decision.
Story thought it unconstitutional to abolish the right of action
against the collector. The majority opinion by Justice Daniel
poses very nicely the apparent dilemma which is the main problem of this discussion. It states the contention that the construction adopted would attribute to Congress purposes which "would
be repugnant to the Constitution, inasmuch as they would debar
the citizen of his right to resort to the courts of justice." " In a
bow to this position, it said:
The supremacy of the Constitution over all officers and authorities,
both of the federal and state governments, and the sanctity of the rights
guarantied by it, none will question. These are concessa on all sides.2 4
2oYaks v. United States, 32X U.S. 414 ('944). The World War II price control
legislation provided that the validity of OPA regulations could be tested only by
an administrative proceeding subject to review by a specially constituted Emergency
Court of Appeals and by the Supreme Court on certiorari. Such a proceeding had
to be instituted within 6o days of issuance of the regulation or of the date when
the regulation complained of had become unlawful. Because of the exclusive
statutory procedure to which they had failed to resort, the petitioners in Yakus
were not allowed to raise the dfxse of statutory invalidity in a criminal prosecution for wilful violation of OPA regulations. The Supreme Court affirmed their
conviction, holding that it was not a denial of due process to place such a limitation
on the enforcement court when an adequate procedure for the determination of
invalidity
had been provided elsewhere.
2
, E.g., Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426 (19o7)
(invalidity of tariff rate cannot be asserted in state court reparations proceeding
without first resorting to ICC); Anniston Mfg. Co. v. Davis, 301 U.S. 337 (I937)
(right to sue collector for recovery of taxes under unconstitutional statute may be
abolished where remedy against United States is substituted). $ee 321 T,.S. at
445-46 for further examples.
22 3 How. 236 (U.S. 1845).
2Id.
at 245.
2
4 Ibid.
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[Vol. 66
But then Justice Daniel stated the other horn of the dilemma
as if it were an answer:
The objection above referred to admits of the most satisfactory refutation. This may be found in the following positions, familiar in this and
in most other governments, viz: that the government, as a general rule,
claims an exemption from being sued in its own courts. That although,
as being charged with the administration of the laws, it will resort to
those courts as means of securing this great end, it will not permit itself
to be impleaded therein, save in instances forming conceded and express exceptions. Secondly, in the doctrine so often ruled in this court,
that the judicial power of the United States, although it has its origin
in the Constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization,
and for the modes of its exercise, entirely upon the action of Congress,
who possess the sole power of creating tribunals (inferior to the Supreme
Court) for the exercise of the judicial power, and of investing them with
jurisdiction either limited, concurrent, or exclusive, and of withholding
jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. To deny this position would
be to elevate the judicial over the legislative branch of the government,
and to give to the former powers limited by its own discretion merely.2 5
Q. I can't see how to reconcile those two horns. How did
Justice Daniel do it?
A. He escaped by way of the power to select remedies. He said:
The claimant had his option to refuse payment; the detention of
the goods for the adjustment of duties, being an incident of probable
occurrence, to avoid this it could not be permitted to effect the abrogation of a public law, or a system of public policy essentially connected
with the general action of the government. The claimant, moreover,
was not without other modes of redress, had he chosen to adopt them.
He might have asserted his right to the possession of the goods, or his
exemption from the duties demanded, either by replevin, or in an action
of detinue, or perhaps by an action of trover, upon his tendering the
amount of duties admitted by him to be legally due. The legitimate
inquiry before this court is not whether all right of action has been taken
away from the party, and the court responds to no such inquiry.26
25
26
Ibid.
Id. at 2go. Neither did the Court respond to any such question in Murray's
Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (U.S. I856). It upheld
a summary procedure, without benefit of the courts, for the collection by the United
States of moneys claimed to be due from one of its customs collectors. justice
Curtis' opinion has a much-quoted statement carefully limiting the holding, and
foreshadowing later developments (id. at 284):
1953]
1369
Q. Why bother with an old case that ducked the issue that
way? What is today's law? Has a taxpayer got a constitutional
right to litigate the legality of a tax or hasn't he?
A. Personally, I think he has. But I can't cite any really
square decision for the very reason I'm trying to tell you. The
multiplicity of remedies, and the fact that Congress has seldom if
ever tried to take them all away, has prevented the issue from
ever being squarely presented.
For example, history and the necessities of revenue alike make
it clear that the Government must have constitutional power to
make people pay their taxes first and litigate afterward. Summary
distraint to compel payment is proper." And injunctions against
collection can be forbidden.18 But these decisions all proceeded
on the express assumption that the taxpayer had other remedies.
Correspondingly, a remedy after payment may be denied if the
taxpayer had a remedy before, as Cary v. Curtis shows. Or the
remedy may be conditioned upon following'exactly a prescribed
procedure.29
Q. The taxpayer has to watch out, then, or he'll lose his rights.
A. He certainly does. As Justice Holmes said in the Rock
Island case, "Men must turn square corners when they deal with
the government." 3 0 That's true of constitutional rights generally.
Witness Yakus again, and the cases on proper presentation of
federal questions in state courts. 3 There isn't often a constitutional right to a second bite at the apple.
Q. Why do you think there is a right even to one bite in tax
cases?
To avoid misconstruction upon so grave a subject, we think it proper to state
that we do not consider Congress can either withdraw from judicial cognizance any
matter which, from its nature, is the subject of a suit at the common law, or in
equity, or admiralty; nor, on the other hand, can it bring under the judicial power
a matter which, from its nature, is not a subject for judicial determination. At
the same time there are matters, involving public rights, which may be presented in
such form that the judicial power is capable of acting on them, and which are
susceptible of judicial determination, but which Congress may or may not bring
within the cognizance of the courts of the United States, as it may deem
proper.
27 Springer v. United States, 102 U.S. 586 (i88o); Phillips v. Commissioner,
283 U.S. 589 (1931).
2' Snyder v. Marks, iog U.S. 189 (1883).
2 Rock Island, Ark. &La. Ry. v. United States, 254 U.S. 141 (1920).
3o Id. at 143.
3' E.g., Mellon v. O'Neil, 275 U.S. 212 (1927); Hemdon v. Georgia, 295 U.S.
441 (1939); Memphis Natural Gas Co. v. Beeler, 315 U.S. 649
An GEssm AN, Su.PPaEu CoURT PRACTICE 75-87 (195).
(1942).
See STEzRN
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HARVARD LAW REVIEW
[Vol. 66
A. For reasons of principle, which I'll develop later. And on

the basis of some authority which you'll find in a footnote.3 2
Q. I can find that unconvincing without even looking at your
footnote. Granting the right, you still have to reckon separately
with the power of Congress to prevent its vindication by controlling jurisdiction. May I remind you of Sheldon and McCardle?
A. There you go oversimplifying again.
III. THE BEARING OF SOVEREIGN IMMUNITY
Q. Well, if it's too simple for you, let me complicate it a little

bit. Justice Daniel mentioned sovereign immunity in Cary v.
Curtis. That gives a double reason, doesn't it, why Congress has
an absolute power over legal relations between the Government
and private persons? If it doesn't want to defeat private rights
by regulating the jurisdiction of the federal courts, it can do it
by withholding the Government's consent to suit.
A. I can't deny that that does complicate things. But the
power of withholding consent isn't as nearly absolute as it seems.
Q. What mitigates it?
A. You have to remember, in the first place, that the immunity
is only to suits against the Government. This isn't the place to
My point now
s such a
go into the question of wh- o t
is that the possibility remains, as Cary v. Curtis indicates, of a
personal action against an official who commits a wrong in the
name of the Government. Wherever the applicable substantive
law allows such a remedy, the Government may be forced to protect its officers by providing a remedy against itself. The validity
of any protection it tries to give may depend on its providing
such a remedy and, indeed, the validity of other parts of its program. Consider, for example, the possibility that summary collection of taxes might be invalid if the Government did not waive
its immunity to a suit for refund.
32
Among federal tax decisions the authority consists of several cases which
could readily have been disposed of on the ground that the taxpayer had no right
to a judicial hearing if the Court had been of that opinion, but in which the Court
was at pains to show that a right satisfying the requirements of due process had
been accorded. See, in particular, Graham & Foster v. Goodcell, 282 U.S. 409
(1931); Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937).

And the Court has several times held that the Due Process Clause of the Fourteenth Amendment entitles the taxpayer to an opportunity to contest the legality
of state taxes. E.g., Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907);
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930).
i953]
Too, the Government may be under

pressure not to insist on its immunity.
tracts, for example. The law gives no
branded as a defaulter. The business of
that people be willing to contract with it.
1371
other kinds of practical

Take Government conimmunity against being
the
Government requires
3
Finally, no democratic government can be immune to the

claims of justice and legal right. The force of those claims of
course varies in different situations. If private property is taken,
for example, the claim for just compensation has the moral sanction of an express constitutional guarantee; and it is not surprising that there is a standing consent to that kind of suitY4 And
where constitutional rights are at stake the courts are properly
astute, in construing statutes, to avoid the conclusion that Congress intended to use the privilege of immunity, or of withdrawing
jurisdiction, in order to defeat them. 5
IV.
LIMITATIONS
ON
THE
JURISDICTION
OF
ENFORCEMENT
COURTS AND COURTS IN THE POSITION OF ENFORCEMENT
COURTS: THE POSSIBILITY OF JUDICIAL CONTROL
Q. Let's stop beating around the bush and get to the central
question. The bald truth is this, isn't it, that the power to regulate
jurisdiction is actually a power to regulate rights - rights to judicial process, whatever those are, and substantive rights generally?
Why, that must be so. What can a court do if Congress says it
has no jurisdiction, or only a restricted jurisdiction? It's helpless
- helpless even to consider the validity of the limitation, let alone
to do anything about it if it's invalid.
A. Why, what monstrous illogic! To build up a mere power
to regulate jurisdiction into a power to affect rights having nothing
to do with jurisdiction! And into a power to do it in contradiction
to all the other terms of the very document which confers the
power to regulate jurisdiction!
S3 This pressure made itself felt even before the Civil War and resulted in a
blanket consent to suit in the Court of Claims. See generally RI.CHARDSON, HISTORY,
JURISDICTION AND PRACTIcE OF THE COURT OF CLAIMS (2d ed. i885).
34 28 U.S.C. 1346 (a) (2), 1491( ) (Supp. 1952).
" E.g., Lynch v. United States, 292 U.S. 57I (1934); De La Rama S.S. Co. v.
United States, 344 U.S. 386 (1953); cf. Bruner v. United States, 343 U.S. 112
(withdrawal of jurisdiction affecting only the number of tribunals authorized to hear a claim).
For an instance of construction of the scope of consent in light of constitutional
considerations, see Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 487-88
(1947).
(1952)
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[VoL 66
Q. Will you please explain what's wrong with the logic?

A. What's wrong, for one thing, is that it violates a necessary
postulate of constitutional government -that a court must always be available to pass on claims of constitutional right to judicial process, and to provide such process if the claim is sustained.
Q. Whose Constitution are you talking about - Utopia's or
ours?
A. Ours. It's a perfectly good Constitution if we know how
to interpret it.
-Q. Have you got the patience to spell out just what my fallacies are?
A. There are so many of them it will take a little time.
Let's start with the most obvious one. Your point, at best, can
apply only to plaintiffs. Perhaps a plaintiff does have to take what
Congress gives him or doesn't give him, although I have my
doubts about it. But surely not a defendant. It's only a limitation
on what a court can do once it has jurisdiction, not a denial of
jurisdiction, that can hurt a defendant. And if the court thinks
the limitation invalid, it's always in a position to say so, and either
to ignore it or let the defendant go free. Crowell v. Benson 16 and
the Yakus 37 case make that clear, don't they?
Q. You're saying, then, that the power to regulate jurisdiction
is subject in part to the other provisions of the Constitution?
A. No. It's subject in whole not in part. My point is simply
that the difficulty involved in asserting any judicial control in
the face of a total denial of jurisdiction doesn't exist if Congress
gives jurisdiction but puts strings on it.
I'm also pointing out more than that. When the way of exercising jurisdiction is in question, rather than its denial, the constitutional tests are different.
It's hard, for me at least, to read into Article III any guarantee
to a civil litigant of a hearing in a federal constitutional court
36 285 U.S. 22
(1932).
In accordance with the statutory procedure, Benson
brought suit to enjoin enforcement of a compensation award under the Federal

Longshoremen's and Harbor Workers' Compensation Act on the ground that the
injured worker was not in his employ and the claim, therefore, was not within the
jurisdiction of the commissioner making the award. After hearing evidence de novo
on the issue, the district court restrained enforcement. The Supreme Court affirmed
the judgment construing the statute as requiring trial de novo on "jurisdictional"
and "constitutional" facts. The Court took the view that Congress could not make
an agency's determination of such facts binding upon the courts and that such a
limitation, therefore, was not to be implied.
37
Yakus v. United States, 321 U.S. 414 (1944). See note 20 sWpa.
19531
1373
(outside the original jurisdiction of the Supreme Court) if Congress chooses to providesome alternative procedure. The alternative procedure may be unconstitutional. But, if so, it seems to
me it must be because of some other constitutional provision, such
as the Due Process Clause.
On the other hand, if Congress directs an Article III court to
decide a case, I can easily read into Article III a limitation on the
power of Congress to tell the court how to decide it. Rutledge
makes that point clearly in the Yakus case, 38 as the Court itself
made it clear long ago in United States v. Klein. 9 That's the
reason, isn't it, why Hughes invokes Article III as well as the
Fifth Amendment in Crowell v. Benson? As he says, the case was
one "where the question concerns the proper exercise of the judicial power in enforcing constitutional limitations." 4
Q. But Crowell v. Benson wasn't an enforcement case. It was
a suit by an employer to set aside an award in favor of an employee.
A. Under the Act the award was enforceable only by judicial
process. Congress chose to give the employer a chance to challenge an award in advance of enforcement proceedings. The
Court was certainly entitled to assume in those circumstances,
wasn't it, that whatever would invalidate an award in enforcement
proceedings would invalidate it also in an advance challenge?
Q. I guess so. But that brings a lot of cases involving plaintiff's rights within the sweep of your principle, doesn't it?
A. Yes, when the plaintiffs are prospective defendants. What
you have to keep your eye on, when a plaintiff is attacking governmental .action, is whether the action plays a part in establishing
a duty which later may be judicially enforced against him. If so,
38 Id. at 463-68.
3913 Wail. 128 (U.S. z872). Klein recovered judgment in the Court of Claims
under the Civil War enemy property acts which provided for the recovery of
captured property or its value by the former owners if they had not been disloyal
or had received a pardon. While the case was pending on appeal to the Supreme
Court, Congress enacted a statute providing that in any case in which it appeared
that the claimant had received a pardon containing a recital of previous disloyalty,
the recital should be conclusive evidence of disloyalty, and the Court of Claims or
the Supreme Court should lose jurisdiction and should dismiss the daim forthwith.
The Supreme Court held the act unconstitutional and declined to apply it in
Klein's case. The Court recognized the power of Congress to regulate both its own
jurisdiction and that of the Court of Claims, but held the statute an attempt to
prescribe a rule of decision retroactively, and hence an invasion of the judicial
function.
40 285 U.S. at 58.
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the court has to decide as a matter of construction - including

possible problems of separability - whether an objection to a
limitation on jfirisdiction can be raised only in enforcement proceedings or can be asserted in advance.
Because of the wide power of Congress in the selection of remedies, which I spoke of before, the question usually is one of construction. But the inference ordinarily should be in favor of making the statute workable and constitutional as a whole. Once that
inference is drawn, the court in the advance proceeding is substantially in the position of an enforcement court.
Q. You mean that in an advance challenge the court, regardless of any restriction on its jurisdiction, should consider and decide any question which it thinks the plaintiff would have a right
to have it decide if he were a defendant?
A. I think you're hitting it. If the court disposes of the case
on the advance challenge, the decision will be res judicata. And
so, if the court thinks the restriction invalid, it has only the two
choices of disregarding it or refusing to proceed to a decision and
thus forcing the government to bring an enforcement proceeding.
Since the purpose of the advance challenge is to make an enforcement proceeding unnecessary, the court ought ordinarily, as a
matter of statutory construction, to make the first choice and
treat the plaintiff now as if he were a defendant.
Q. Well, I'll admit that all this makes Sheldon and McCardle
a little less frightening. But only a little less so. I'm wondering
what there is to prevent Congress from by-passing the courts
altogether. If a court has no jurisdiction at all, it obviously can't
seize on the excuse of merely invalidating a limitation on its jurisdiction.
But before I ask you about that, let's see what Congress would
have to gain by it - or the defendants to lose. When you come
right down to it, what are the rights of a defendant in an enforcement proceeding?
V. LimiTATioNs ON THE JU RsDIcTIoN oF ENFORCEMENT
COURTS: THEIR VALmITY
A. The Yakus case and Crowell v. Benson give you a good

starting-point. Most people reading Yakus concentrate on what
the Court said Congress could do, and reading Crowell concen-
19531
1375
trate on what it said Congress could not do. I hope you won't
make those simple mistakes.
Q. You'll have to spell that out for me. Take Crowell first.
A. Civil Defendants
A. Well, the solid or apparently solid thing about Crowell is
the holding that administrative findings of non-constitutional and
non-jurisdictional facts may be made conclusive upon the courts,
if not infected with any error of law, as a basis for judicial enforcement of a money liability of one private person to another.
Q. What's so surprising about that?
A. It's worth thinking about even as a matter of due process
and Article III judicial power. But stop and think particularly
about the Seventh Amendment.
Q. No right of jury trial in admiralty.
A. Good. But the Seventh Amendment hasn't been treated as
standing in the way of the Crowell result even when the admiralty
answer wasn't available. Administrative proceedings haven't been
regarded as "suits at common law." 41
Q. My, the Seventh Amendment might have been a major safeguard against bureaucracy with a little different interpretation,
mightn't it?
A. Don't build it up too much. How many administrative arrangements can you think of that involve establishment of a
money liability?
Q. I'm still interested in what Crowell said Congress could not
do. Isn't that solid?
A. Not very. So far as the case insists on trial de novo, it
seems clear it has no germinal significance. 42 Do you think it
should have?
Q. But Crowell also spoke of the right to have the independent
judgment of a court on constitutional and jurisdictional facts.
That's important, isn't it, even if the court is confined to the administrative record?
"' See, e.g., Wickwire v. Reinecke, 275 U.S. 1o, io5-o6 (1927); NLRB v.
Jones & Laughlin Steel Corp., 3o U.S. 1, 48-49 (1937). The few cases are collected
in DAVIs, ADiM)NISTRAT E LAW 3o5-06 (igs9).
42 See, e.g., South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 257-58
(i94o); Davis v. Department of Labor, 317 U.S. 249, 256-57 (1942); Cardillo v.
Liberty Mutual Ins. Co., 330 U.S. 469 (i947); Alabama Public Service Comm'n
v. Southern Ry., 341 U.S. 341 (i951). And see Schwartz, Does the Ghost of
Crowell v. Benson Still Walk?, 98 U. oF PA. L. Rzv. x63 (1949).
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A. It's a right with very different implications. That was the

right insisted on in the Ben Avon case 43 on review of a state court
decision, where of course it had to be rested solely on due process.
The Ben Avon part of the Crowell holding was reaffirmed in
1936, although in somewhat less rigorous form, in St. Joseph Stock
Yards Co. v. United States. 44 That was a case coming from a
three-judge district court involving a rate order of the Secretary
of Agriculture under the Packers and Stockyards Act. The judgment sustaining the order was affirmed. But Chief Justice Hughes,
prompted by the lower court's expression of doubts, went out of
his way to emphasize that an "independent judicial judgment on
the facts" (which actually had been exercised) was constitutionally necessary. He added, however, that such a judgment "does
not require or justify disregard of the weight which may properly
attach to' findings upon hearing and evidence." " Justice Brandeis, concurring in result with Justices Stone and Cardozo, thought
that "no good reason exists for making special exception of issues
of fact bearing upon a constitutional right." "' He said:
The supremacy of law demands that there shall be an opportunity
to have some court decide whether an erroneous rule of law was applied;
and whether the proceeding in which facts were adjudicated was conducted regularly. To that extent, the person asserting a right, whatever
its source, should be entitled to the independent judgment of a court on
the ultimate question of constitutionality. But supremacy of law does
not demand that the correctness of every finding of fact to which the
rule of law is to be applied shall be subject to review by a court. If it did,
the power of courts to set aside findings of fact by an administrative
tribunal would be broader than their power to set aside a jury's verdict.
The Constitution contains no such command.47
Q. Where does the Ben Avon-Crowell-St. Joseph rule stand
now?
"' Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920). The Ohio
Supreme Court upheld a public utility rate established by the state utility commission, reversing the lower court on the ground that the state statute did not
permit the court to make findings of fact on review and that the commission's
valuation of the utility's property was not unreasonable as a matter of law. The
Supreme Court reversed, holding that where confiscation of property is claimed
due process requires an independent judicial judgment on the facts. (Brandeis,
Holmes, and Clarke dissenting.)
44 298 U.S. 38 (1936).
5
Id.at 53.
46
47
Id. at 73.
Id.at 84.
1953]
1377
A. Most commentators question its present vitality, at least

in the field of civil liability.4" Certainly, the recent decisions on
rate-making, to which the commentators point, reflect such altered
views of the applicable constitutional restraints as to leave little
room for the Ben Avon question to arise within its original field.4 9
The same thing is true in other areas of administrative action.
Putting aside questions of personal liberty where the governing
criteria are likely to be more rigorous, constitutionality, as distinguished from statutory authority, will rarely turn upon the concrete factual situation sought to be reviewed.
Q. The Crowell case also has a dictum that questions of law,
including the question of the existence of evidence to support the
administrative decision, must be open to judicial consideration.5"
And you quoted Brandeis as saying that was necessary to the
supremacy of law. Have those statements stood up?
A. If I can speak broadly and loosely, I'll say yes - they have
stood up.
Shutting off the courts from questions of law determinative of
enforceable duties was one of the things Yakus assumed that Congress could not do. To be sure, that was a criminal case; but
there's no reason to suppose the Court would have made a different assumption if the sanction had been civil.
Q. How do you explain cases like Gray v. Powell,5 and NLRB
v. Hearst Publications,Inc.? 52 Or, for that matter, O'Leary v.
Brown-Pacific-Maxon,Inc.? Is Didn't these cases allow the agencies to make final determinations of questions of law?
48
See, e.g., DAVIS,
ADMISTRATIVE
LAW 918-22
(I95I); Benjamin, Judicial
Review of Administrative Adjudication: Some Recent Decisions of the New York

Court of Appeals, 48 COL. L. REv. I, 27-32 (1948).
9
See FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 6oo (1942); FPC v. Hope
Natural Gas Co., 320 U.S. 591 (1944); New York v. United States, 331 U.S. 284
(1947).
However, the New York Court of Appeals has held itself bound by the Ben
Avon principle until it is in terms repudiated by the Supreme Court. Staten Island
Edison Corp. v. Maltbie, 296 N.Y. 374, 73 N.E.2d 705 (947). And Massachusetts
recently defined in Ben Avon terms the scope of review required by its own constitution. Lowell Gas Co. v. Department of Public Utilities, 324 Mass. 8o, 84
N.E.2d 811 (1949).
50 285 U.S. at 46, 49-50.
51 314 U.S. 402 (I942) (upheld administrative determination of the meaning
of "producer" in the Bituminous Coal Act).
52 322 U.S. II (1944) (upheld administrative determination of the meaning of
"employees" in the Wagner Act).
340 U.S. 504 (i951) (upheld administrative determination of the meaning of

"arising out of and in the course of employment" in the Longshoremen's Act).
53
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A. That depends on how you define "law." I think Professor

Davis is right in saying that the term "law" in the first sentence
I quoted from Justice Brandeis has to be read "as excluding the
body of rules and principles that grow out of the exercise of administrative discretion" - at least while the rules are in process
of crystallizing.5"
In recent years we've recognized increasingly a permissible
range of administrative discretion in the shaping of judicially enforceable duties. How wide that discretion should be, and what
are the appropriate ways to control it, are crucial questions in
administrative law.55 But so long as the courts sit to answer the
questions, the spirit of Brandeis' statement is maintained. And,
since discretion by hypothesis is not law, the letter of it is not in
question.
Q. But it's notorious that there are all kinds of administrative
decisions that are not reviewable at all. Professor Davis devotes
a whole fat chapter to "Nonreviewable Action" of administrative
agencies. 56
A. Administrative law is a relatively new subject Naturally
there have been a number of ill-considered decisions. But if you
look closely at Professor Davis' cases you'll find that almost all
of them are distinguishable. Many of them don't involve judicially enforceable duties of the complaining party at all. Others
involve political questions, or administrative questions in the oldfashioned sense.5 7 Still others turn on this point of administrative
discretion we were just talking about. The remainder were not
themselves enforcement cases, and the opinions simply didn't face
up to the question whether the validity of the restriction on jurisdiction should, be judged as it would be in an enforcement proceeding.
Name me a single Supreme Court case that has squarely held
" See DAvis, AnMnISTATxma LAW 33-34 (1951). Note that io of the Administrative Procedure Act does not provide for judicial review when "agency
action is by law committed to agency discretion." However, io(e) provides for
the setting aside of agency action which constitutes an abuse of discretion. 6o
STAT. 243, 5 U.S.C. ioog(e) (1946).,
" Similar yet distinct questions are involved in the problem of the appropriate
scope of administrative discretion in devising remedies. See, e.g., Jacob Siegel Co.
v. FTC, 327 U.S. 608, 61i (1946); FTC v. Ruberoid Co., 343 U.S. 470 (1952).
56 DAVIs, A mImsTRATIvE LAw 812-67 (1951).
"' See, e.g., Federal Radio Comm'n v. General Electric Co., 281 U.S. 464 (1930);
Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266 (1933); FPC v. Idaho
Power Co., 344 U.S. 17 (1952).
1953]
1379
that, in a civil enforcement proceeding, questions of law can be

validly withdrawn from the consideration of the enforcement
court where no adequate opportunity to have them determined
by a court has been previously accorded.5 8 When you do, I'm going back to re-think Marbury v. Madison.5 9
Q. You put a lot of weight on the point of whether an enforceable legal duty is involved, don't you?
A. Yes. 60
B. Criminal Defendants
Q. You haven't mentioned criminal defendants so far. I suppose that all you've said, and more, applies to them. They have
a right to trial by jury that isn't limited to offenses that were
crimes at common law -and a lot of other specific guarantees,
too.
A. Well, the same basic point certainly ought to apply. I don't
believe that courts can be given criminal jurisdiction, and at the
same time be told to exercise it in violation of the Constitution.
Yakus, at least, went on that basis. It dealt directly with the
scope of constitutional rights, with no nonsense about any question being foreclosed by the power to regulate jurisdiction.
5
If a prior opportunity for review by a legislative court, such as the Tax

Court, be regarded as adequate, the procedure for renegotiation of war contracts
involves no such problem. Otherwise, it may.
The renegotiation provisions often operate in invitum, without notice when
the contract was made. In Lichter v. United States, 334 U.S. 742 (1948), the Court
held that a federal district court could not redetermine excessive profits in an
enforcement proceeding brought by the United States, since the exclusive remedy
was a petition for redetermination in the Tax Court. This left open the question
whether the Tax Court's decision is reviewable either in a court of appeals or in
an enforcement proceeding in the district court after the contractor has exhausted
his prior remedies. Some of the issues in such cases, it should be noted, turn upon
the exercise of discretion; but others involve clear questions of law.
One court of appeals has read the statutes as foreclosing the usual review of
Tax Court decisions. French v. War Contracts Price Adjustment Board, 182 F.2d
56o (gth Cir. i95o). Another has found power to review a narrow group of constitutional and jurisdictional questions. See, e.g., Maguire Industries, Inc. v. Secretary of War, i85 F.2d 434 (D.C. Cir. ig5o). The enforcement question seems not
to have been presented. See generally Braucher, The Renegotiation Act of 95z,
66 HARv.L. REv. 270, 305-12 (1952).
i Cranch x37 (U.S. i8o3).
60 Cf. io, Administrative Procedure Act, 6o STAT. 243, 5 U.S.C. IOO9 (1946):
Except so far as (i) statutes preclude judicial review or (2) agency action is
by law committed to agency discretion (b) . . . Agency action shall be subject to judicial review in civil or criminal
proceedings for judicial enforcement except to the extent that prior, adequate, and
exclusive opportunity for such review is provided by law.
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Whether the courts define the rights too narrowly or too broadly,
they are there to declare them - and whenever appropriate to
overrtile and re-declare.
There is significance, moreover, in the conformities to the traditional pattern of a criminal trial which Yakus assumed to be
necessary as well as in the departures which it sanctioned. The
departures were the withdrawal from the court or jury of certain
questions of legislative fact and from the court of certain questions of law. But these departures were sanctioned only because
an alternative procedure had been provided which, in the exigencies of the national situation, the Court found to be adequate. The
alternative procedure for the decision of the questions of law was
in a court; and everybody assumed it had to be.
Q. Does Yakus mark the maximum inroad on the rights of a
criminal defendant to judicial process?
A. No, unfortunately it doesn't. We have to take account of
two World War II selective service cases, Falbo v. United States,6
and Estep v. United States. "By the terms of" the selective service legislation, as Justice Douglas put it in Estep, "Congress
enlisted the aid of the federal courts only for enforcement purposes." 62 And so the question was sharply presented on what
terms that could be done.
The Court held in Falbo, with only Justice Murphy dissenting,
that a registrant who was being prosecuted for failure to report
for induction (or for work of national importance) could not defend on the ground that he had been wrongly classified and was
entitled to a statutory exemption.
Q. Doesn't that pretty well destroy your notion that there has
to be. some kind of reasonable means for getting a judicial determination of questions of law affecting liability for criminal punishment? All Congress has to do is to authorize an administrative
agency to issue an individualized order, make the violation of the
order a crime in itself, and at the same time immunize the order
from judicial review. On the question of the violation of the order,
all the defendant's rights are preserved in the criminal trial, except that they don't mean anything.
A. Whoa! -Falbo doesn't go that far. In Estep, after the fighting was over, the case was explained -and perhaps it had actually been decided- on the basis that the petitioner in failing
61 320 U.S. 549 (1944).
62
327 U.S. 114, 119 (1946).
1953]
1381
to report for induction had failed to exhaust his administrative

remedies. Considering the emergency, the requirement that claims
be first presented at the induction center was pretty clearly a
reasonable procedure.
Q. How about Estep?
A. The petitioner there went to the end of the administrative
road, and was indicted for refusing to submit to induction. The
Court held that he was entitled to make the defense that the local
board had "acted beyond its jurisdiction." Justice Douglas,
speaking for himself and Justices Reed and Black, said:
The provision making the decisions of the local boards "final" means
to us that Congress chose not to give administrative action under this
Act the customary scope of judicial review which obtains under other
statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified.
The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of
jurisdiction of the local board is reached only if there is no basis in
fact for the classification which it gave the registrant. 63
Justices Murphy and Rutledge concurred specially on the
ground that the Court's construction was required by the Constitution. Justice Frankfurter thought the construction wrong but
5
1d.
I at 122-23. Justice Douglas had a footnote here saying, "That is the
scope of judicial inquiry in deportation cases where Congress has made the orders
of deportation 'final." Query. See Lloyd Sabaudo Societa v. Elting, 287 U.S.
329, 335-36 (1932) ; Kessler v. Strecker, 307 U.S. 22, 34 (1939); Bridges v. Wixon,
326 U.S. 135 (1945). But cf. Heikkila v. Barber, 345 U.S. 229 (1953).
The narrow scope of review which Justice Douglas describes was all that was
given in Cox v. United States, 332 U.S. 442 (1947), another selective service case.
In United States v. Spector, 343 U.S. 169 (1952), the Court upheld the conviction of an alien for wilfully failing to make timely application for travel documents necessary for his departure after a deportation order was issued. Justice
Jackson dissented on the ground that the statute was unconstitutional, since it
made the validity of the deportation order conclusive on the enforcement court.
The majority refused to consider this objection on the ground that it had not
been argued.
In Heikkila v. Barber, the Court held that an alien who was at large after an
order of deportation, and hence could not bring habeas corpus, was foreclosed also
from getting a review of the order under io of the Administrative Procedure
Act, 6o STAT. 243, 5 U.S.C. 1009 (1946). Does this indicate that such an alien who
failed to seek travel papers would be automatically a felon, regardless of the validity
of the order of deportation? In such a case, at least, would not the criminal court,
on proper objection, be bound to examine the order?
To illustrate the importance of a prior administrative remedy, compare United
States v. Ruzicka, 329 U.S. 287 (1946), witz Stark v. Wickard, 321 U.S. 288
(r944). See also Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950).
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[Vdol. 66
concurred on the ground that there were other errors in the trial.
Justice Burton and Chief Justice Stone dissented.
Q. Well, the holding in the end wasn't such a departure after
all, was it?
A. Stop and think before you say that.
Except for two Justices who are now dead, the whole Court
dealt with the question as if it were merely one of statutory construction. Three Justices of the Supreme Court of the United
States were willing to assume that Congress has power under
Article I of the Constitution to direct courts created under Article
III to employ the judicial power conferred by Article III to convict a man of a crime and send him to jail without his ever having
had a chance to make his defenses."4 No decision in 164 years of
constitutional history, so far as I know, had ever before sanctioned such a thing. Certainly no such decision was cited. For
these three didn't even see it as a problem. There is ground to
doubt whether the first three in the majority did either.
Bear in mind that the three dissenters from the Court's construction expressly recognized that the order of induction might
have been erroneous in law. They said that the remedy for that
was habeas corpus after induction. They seemed to say that the
existence of the remedy of habeas corpus saved the constitutionality of the prior procedure. That turns an ultimate safeguard of
law into an excuse for its violation. And it strikes close to the heart
6" Would the force of the objection to a refusal to permit a criminal defendant
to show that an order of induction was erroneous in law be destroyed if it were
concluded that Congress might have made such an order a matter purely of the
board's discretion? Is the power to do that material if the Congress never exercised
it?
Because Congress might have excluded the courts altogether from the process
of raising an army in crisis, would it follow that it also has the alternative of using
them for the limited purpose of punishing as a civil crime a violation of a purely
discretionary determination?
In criminal prosecutions of draft evaders during World War I, the question of
the finality of the draft board's classifications apparently did not arise. See Bell,
Selective Service and the Courts, 28 A.B.A.J. 164, E67 (T942). However, the
courts were in general agreement that habeas corpus would be granted after induction where the classification was arbitrary or not based on substantial evidence.
B.g., Arbitman v. Woodside, 258 Fed. 44x (4 th Cir. i919). See also cases collected in
Bullock, Judicial Review of Selective Service Board Classifications by Habeas
Corpus, io GEo. WAsH. L. REv. 827, 829 n.7 (1942). There was some suggestion
that a draftee could only obtain judicial review after induction. See United States
ex rel. Roman v. Rauch, 253 Fed. 814 (S.D.N.Y. 1918). But see Angelus v.
Sullivan, 246 Fed. 54 (2d Cir. 1917) (injunction against issuance of induction order
denied because common law certiorari was available).
19531
1383
of one of the main theses of this discussion - that so long at least

as Congress feels impelled to invoke the assistance of courts, the
supremacy of law in their decisions is assured.
VI.
DENIAL OF JURISDICTION: WITHHOLDING FROM PLAINTIFFS
AFFIRMATIVE GOVERNMENTAL AID
Q. So much for defendants and prospective defendants. How

about other kinds of plaintiffs? Have they any rights?
A. Before we can even start dealing with that question, we'll
have to break it down into parts. An initial division which I find
useful is between plaintiffs who are simply trying to get the Government's help, and those who are trying to protect themselves
against extra-judicial governmental coercion - and whose claims
thus reach much more closely to the foundations of liberty. Let's
take the first group first, breaking it into two sub-groups.
A. Plaintiffs Wanting to Enforce Other Private Persons' Duties
Q. Do men have a constitutional right to judicial assistance
against their fellow men?
A. Very possibly, at least when rights of action have already
accrued. The portal-to-portal cases illustrate one type of problem
of this kind. You will remember that when Congress acted to
deprive both state and federal courts of jurisdiction to entertain
the bonanza claims under the Fair Labor Standards Act to which
previous Supreme Court decisions 15 had unexpectedly given rise,
it was careful at the same time to outlaw the substantive liability.6
Q. Why was that necessary when no court was left with jurisdiction to enforce the liability?
A. A few district courts looked at it that way, but the courts
of appeals were mostly perspicacious enough to see that a total
denial of any remedy, in either the state or federal courts, was
not a mere regulation of jurisdiction. They applied the Act only
after they had satisfied themselves that the liability had been
67
validly extinguished.
" Tennessee Coal Co. v. Muscoda Local, 321 US. 590 (i944); Jewell Ridge
Corp. v. Local No. 6167, 325 U.S. 161 (1945); Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 68o (1946).
66 6I STAT. 84 (i947), 29 U.S.C. 251 et seq. (Supp. 1952).
" Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), followed
in Addison v. Huron Stevedoring Corp., 2d Cir., March 20, 1953. 1InSeese v.
Bethlehem Steel Co., 168 F.2d 58 (4th Cir. 1948), Chief Judge Parker approached
the decision of the question by sustaining the section destroying the claim to back
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[Vol. 66
Q. Then this is a clear case of plaintiffs who do have a constitutional right of access to a federal court with jurisdiction to
pass on the merits of their claims, isn't it?
A. Not so fast. We can't be sure of that. The Supreme Court
never granted certiorari; and perhaps the courts of appeals' decisions are to be explained on grounds of statutory construction,
or more accurately of separability. Perhaps the courts were
simply unwilling to believe that Congress would have wanted the
withdrawal of jurisdiction to be effective if the substantive action
were invalid.
Q. You indicated that there was another type of case in this
group.
A. Yes. Congress hasn't often tried to take away preexisting
rights of action for judicial relief between private persons. The
question is more likely to arise when a private plaintiff complains
of the refusal of an administrative agency to make an order, favorable to him, against another private person.
A good illustration of this latter type is the situation in Crowell
v. Benson 68 itself. Suppose the plaintiff complaining of the administrative decision in that case had been an employee denied
an award instead of an employer called upon to pay one. Do you
think the Court would have written the same opinion?
Q. Why not?
A. The employer in the actual case was being made to do
something to his disadvantage. The employee in the supposed
case simply failed to gain a hoped-for advantage. Do the two
have an equal warrant to appeal to the courts? The employee,
after all, couldn't even prove the soundness of his claim to the
agency created for his special protection.
Haven't you noticed how frequently the protected groups in an
administrative program pay for their protection by a sacrifice of
procedural and litigating rights? The agency becomes their champion and they stand or fall by it. Does this phenomenon reflect a
disregard or a recognition of the equities of the situation? 69
pay and then adding: "Whether the denial of jurisdiction would be valid if the
provision striking down the claims were invalid is a question which does not arise."
Id. at 6S. The cases are collected in Thomas v. Carnegie-Illinois Steel Corp., 174
F.2d 7zi (3d Cir. 1949).
68 See note 36 supra.
'9 See, e.g., Amalgamated Utility Workers v. Consolidated Edison Co., 3og U.S.
261 (1940). But cf. Parker v. Fleming, 329 U.S. 531 (1947). See Jaffe, The
Individual Right to Initiate Administrative Process, 25 IowA L. REv. 485 (X940);
DAVIS, ADm s-RAT=IVE LAW 46o-64, 676-717 (195i).
1953]
1385
Q. I can see the force of that point if the employee were getting
something he never had before - like a consumer under the Federal Food, Drug, and Cosmetic Act. But the compensation system was imposed on longshoremen in lieu, at least in part, of
prior rights of action at law and in admiralty.
A. Yes, that does seem to make a difference.
I wonder what you would think of Switchmen's Union v. Na-
tional Mediation Board."0 There the union brought suit under the
general federal question jurisdiction to set aside a Board order
designating a rival union as the authorized collective bargaining
representative. The union said the order was based on a misconstruction of the statutory provisions concerning the appropriate bargaining unit. But the Court collected from the silence of
the statute an intention of Congress to preclude judicial review,
and held that the alleged error of law could not be examined.
Q. The order, I suppose, resulted in an enforceable duty of the
employer to bargain with the designated union?
A. Yes.
Q. Then if the employer had been denied review, the case would
have met the challenge with which you ended the last section?
A. That's right. And Justice Douglas' opinion would apply to
the employer just as readily as to the union. But you'd never
gather from what he said a whisper of a suggestion that any special
problem was involved.
Q. I gather that the unsuccessful union did not come under
any enforceable duty not to bargain?
A. That's right. All it lost was the liberty to bargain with an
employer free from an enforceable duty not to bargain with it.
Q. Then the case is a little like your supposititious inversion of
Crowell v. Benson. But here the union's interest actually seems
more important than the employer's. Don't you think the denial
of review is pretty significant?
A. Not very. Opinions that don't face up to their problems
aren't likely to have much growing power.
Q. Well, you've got me all up in the air now. What's the
answer?
A. I don't think anybody, including the Supreme Court, has
thought through to one. For present purposes we don't need to
exhaust the question of just what constitutional rights of access
to courts there are in this kind of situation. Our main interest is
'
320 U.S. 297 (1943).
HARVARD LAW REVIEW[l
1386
[Vol. 66
in the question of the extent to which the power to control jurisdiction is a power to impair these rights, whatever they may be.
On this question I think you'll find that the answer here falls in
with that in the remaining groups of problems.
B. Plaintiffs ComplainingAbout DecisionsIn Connection
With Non-Coercive GovernmentalPrograms
Q. What's the next group of problems?

A. It's really a miscellany rather than a group. It's all the
cases I can't stop to talk about now if I'm going to avoid occupying the field of administrative law entirely. Broadly, it's the cases
of plaintiffs complaining about governmental decisions which do
not involve the direct coercion of private persons.
More specifically, the group includes problems with respect to
plaintiffs who are neither (a) trying to avoid becoming defendants,
nor (b) complaining about a governmental decision concerning a
judicially enforceable duty of another private person, nor (c) complaining about extra-judicial governmental coercion of themselves.
For example, a plaintiff seeking review of a government contracting officer's decision which he had agreed in the contract should
be final.7 1 Or a plaintiff seeking some statutory benefit from the
government.
It's perfectly obvious that final authority to determine even
questions of law can be given to executive or administrative officials in many situations not having the direct impact on private
persons of a governmentally created and judicially enforceable
duty, or of an immediate deprivation of liberty or property by
extra-judicial action. These cases, by and large, are those falling
in the third of Justice Curtis' three classes in Murray's Lessee.72
Some such situations may rise to the dignity of a constitutional
problem. But whatever the constitutional rights to judicial process
of these plaintiffs may be, the power of Congress to impair them
seems to involve no distinctive problems. The problems appear to
be the same as those discussed in the next section.
VII.
DENIAL OF JURISDICTION: PLAINTIFFS COMPLAINING OF

EXTRA-JUDICIAL GOVERNMENTAL COERCION
Q. All right, then, now comes the sixty-four dollar question

we've been avoiding. What happens if the Government is hurting
"IUnited
72
States v. Moorman, 338 U.S. 497 (195o).....

18 How. 272 (U.S. 1856); see note 26 supra.
1g53]
1387
people and not simply refusing to help them? Suppose Congress

authorizes a program of direct action by Government officials
against private persons or private property. Suppose,, further, that
it not only dispenses with judicial enforcement but either limits
the jurisdiction of the federal courts to inquire into what the
officials do or denies it altogether.
A. Relief Under GeneralJurisdiction
A. You sound as if you thought you finally had me in a corner.
But after what we've been through the answer to this one is easy,
isn't it - so long as there is any applicable grant of general jurisdiction?
Obviously, the answer is that the validity of the jurisdictional
limitation depends on the validity of the program itself, or the
particular part of it in question. If the court finds that what is
being done is invalid, its duty is simply to declare the jurisdictional
limitation invalid also, and then proceed under the general grant
of jurisdiction.
Q. That can't be as easy as you make it sound. Is that what
the federal courts actually do?
A. That's what they've often done.
Take the clearest case - an attempt by Congress to authorize
the administrative imposition of infamous punishment. That, substantially, is Wong Wing v. United States,73 one of the bulwarks
of the Constitution. There Congress had directed that any Chinese
person adjudged in a summary proceeding by any judge or United
States commissioner to be in the country unlawfully should first
be imprisoned at hard labor for not more than a year and then
deported. In the exercise of its general jurisdiction in habeas
corpus, the Court ordered the prisoners discharged from such imprisonment - without prejudice of course to their detention according to law for deportation.
In Lipke v. Lederer,74 the Court found that a payment required
only by the
b the tax lenalty-nforceable
processes-of the criminal law. It exercised general federal ques-__
tion jurisdiction to enjo'i summary olctioti, in spite of the
aainst federal taxes.
t
ohibiting "m t'
s
Q. In those cases the whole extra-judicial procedure was found
unconstitutional. That's an unusual situation. What if the party
73 163 U.S. 228 (1896).
74 259 U.S. 557 (1922).
1388
HARVARD LAW REVIEW
[Vol 66
simply says that the executive officers are proceeding erroneously

in his particular case?
A. If he has a constitutional right to have that question examined in court, and the court has general jurisdiction, it can disregard'any special jurisdictional limitation and go ahead and examine it.
That's what the Court did, for example, in Ng Fung Ho v.
White.75 That case involved an administrative order to deport
an asserted alien who claimed to be a citizen. On habeas corpus
the Court held that the Due Process Clause entitled the claimant to
a trial de novo and an independent judicial judgment on the issue
of citizenship; and it directed the district court to give it to him.
Crowell, you remember, relied on Ng Fung Ho.
Q. Is Ng Fung Ho any more solid now than Crowell?
A. On the trial de novo point, maybe not, if Congress tried expressly to override it. Possibly not even on the other point. In
recent years Ng Fung Ho has been cited for the proposition that
judicial review may be a constitutional requirement, without suggesting that its scope includes an independent judgment on the
facts.7 6 But I'd be surprised if the deportee claiming citizenship
were ever denied, on the issue of citizenship, a review at least as
broad as that called for, say, by Hughes' formulation in St.
Joseph.77
Q. What about a claim of citizenship by an applicant for admission to the country?
"t5259 U.S. 276 (1922).
7" See Estep v. United States, 327 U.S. 114, 120 (1946); Frankfurter,
J.,
dis-
senting in Stark v. Wickard, 321 U.S. 288, 312 (1944).

"But cf. Emergency Detention Act of i95o, ixi(c), 64 STAT. 1028,
50 U.S.C. 821(c) (Supp. 1952): "The findings of the Board as to the facts, if
supported by reliable, substantial, and probative evidence, shall be conclusive."
See Note, The Internal Security Act of x95o, 5r COL. L. R v. 6o6, 646 et seq.
(:95x).
For another problem akin to the alien problems about to be discussed, but
touching the rights of citizens, consider passports. For years a passport was a
mere facility and there was substance in the notion that its issuance rested in
administrative discretion. But now going abroad without a passport may be a
crime, and, apart from that, you can't ordinarily get on board a foreign-bound
boat or plane without one. See the pioneering decision in Bauer v. Acheson, io6
F. Supp. 445 (D.D.C. 1952), holding that the revocation of the plaintiff's
passport by the Secretary of State without notice and hearing was "without
authority of law." See also Comment, Passport Refusals for Political Reasons:
Constitutional Issues and Judicial Review, 61 YALE L.J. 171 (1952); Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Gao. L.J.
63 (1952).
19s3]
1389
A. That's an interesting present problem. If United States v.

Ju Toy 78 is still law, the applicant for admission has no right to a
de novo review of his claim of citizenship. 79 But lots of people
have doubted whether Ju Toy could stand after Ng Fung Ho.
The Ninth Circuit, in particular, doubts it, at least as to prior
residents, and accords them a de novo inquiry into citizenship in
habeas corpus.80 In 1940 Congress seemed to recognize the essential justice of this position when it provided a special statutory
procedure for a judicial determination of citizenship.,' The Second Circuit thought that this made it unnecessary to reexamine
Ju Toy. 2 But the Immigration and Nationality Act of 1952 abolished the statutory procedure."3 And so, the question whether the
Ninth Circuit is right about the scope of review in habeas corpus
has taken on new importance, and is likely to come to a head soon.
Q. But even admitted aliens have access to the courts on habeas
corpus on the question of their right to enter or remain in the
country, don't they?
A. Yes, although the scope of review, of course, falls short
of trial de novo. Indeed, judicial review in exclusion and deportation cases is one of the most impressive examples of the general
point I am making, and currently provides a testing crucible of
basic principle.
The structure of review has been developed by the courts in the
face of a statutory plan of administrative control which looked
neither to their help nor interference. For years the statutes have
provided that orders of the Secretary of Labor (now of the Attorney General) in these matters shall be "final."
Q. How then can aliens have any rights to assert in habeas
corpus? I thought they came and stayed only at the pleasure of
Congress.
A. The Supreme Court seemed to think so, too, at first. In its
78 198 U.S. 253 (1905).
79 But cf. Chin Yow v. United States, 208 U.S. 8 (I9O8), per Holmes, J., in
which the Court, after deciding that an applicant for admission claiming citizenship had been unfairly deprived by the administrative officers of access to evidence
to prove his case to them, corrected the wrong by giving him a chance to prove the
case to a court.
80 Carmichael v. Delaney, 17o F.2d 239 (9th Cir. 1948).
81 Nationality Act of 1940, 503, 54 STAT. 1171, 8 U.S.C. 903 (1946).
82 United States ex rel. Chu Leung v. Shaughnessy, 176 F.2d 249 (2d Cir. 1949).
83 See 36o(a), 66 STAT. 273, 8 U.S.C.. i5o3(a) (Supp. 1952). The problem is
discussed in Developments in the Law - Immigration and Nationality, 66 HARv. L.
Rav. 643, 673-74, 744-45 (1953).
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1390
[Vol. 66
earliest decisions the Court started with the premise of plenary

legislative power and on that basis seemed to be prepared to take
to decline any rethe word "final" in the statutes literally 8and
4
cases.
deportation
in
even
view whatever,
Before long, however, it began to see that the premise needed
to be qualified- that a power to lay down general rules, even if
it were plenary, did not necessarily include a power to be arbitrary
or to authorize administrative officials to be arbitrary. It saw
that, on the contrary, the very existence of a jurisdiction in habeas
corpus, coupled with the constitutional guarantee of due process,
implied a regime of law. It saw that in such a regime the courts
had a responsibility to see that statutory authority was not transgressed, that a reasonable procedure was used in exercising the
authority, and - seemingly also - that human beings were not
unreasonably subjected, even by direction of Congress, to an uncontrolled official discretion."5
84
The Chinese Exclusion Case, i3o U.S. 58I (188g) (admission); Nishimura
Ekiu v. United States, 142 U.S. 65I (1892) (admission); Fong Yue Ting v.
United States, 149 U.S. 698 (1893) (deportation); Lem Moon Sing v. United States,
158 U.S. 538 (i895) (admission); Li Sing v. United States, i8o U.S. 486 (igoi)
(deportation); Fok Yung Yo v. United States, i85 U.S. 296 (1902) (admission) ; Lee Lung v. Patterson, 186 U.S. i68 (1902) (admission).
8' The turning point was the Japanese Immigrant Case (Yamataya v. Fisher),
z8g U.S. 86 (i9o3), involving an immigrant taken into custody for deportation
four days after her landing. After referring to earlier cases cited in note 84, suPra,
the Court said:
But this court has never held, nor must we now be understood as holding, that
administrative officers, when executing the provisions of a statute involving the
liberty of persons, may disregard the fundamental principles that inhere in "due
process of law" as understood at the time of the adoption of the Constitution.
One of these principles is that no person shall be deprived of his liberty without
opportunity, at some time, to be heard, before such officers, in respect of the
matters upon which that liberty depends. . . . No such arbitrary power can exist
where the principles involved in due process of law are recognized.
This is the reasonable construction of the acts of Congress here in question,
and they need not be otherwise interpreted .... An act of Congress must be
taken to be constitutional unless the contrary plainly and palpably appears. Id.
at ioo-oi.
Compare Justice Holmes' formulation in Chin Yow, an admission case, supra
note 79: "The decision of the Department is final, but that is on the presupposition
that the decision was after a hearing in good faith, however summary in form."
208
U.S. at
12.
For other deportation cases, see Low Wah Suey v. Backus, 225 U.S. 460, 468
(1912); Zakonaite v. Wolf, 226 U.S. 272, 274-75 (1912); United States ex rel
Bilokumsky v. Tod, 263 U.S. 149, I56-57 (i923); Bridges v. Wixon, 326 U.S. 135,
156 (1945). See also United States ex rel. Ioio v. Day, 34 F.2d 920 (2d Cir. 1929),
and Whitfield v. Hanges, 222 Fed. 745 (8th Cir. 1915), both cited with approval
in Lloyd Sabaudo Societa v. Elting, 287 U.S. 329, 334-36 (1932).
On admissions, see especially Justice Stone's summary of the law in the Lloyd
Sabaudo case, supra. See also Kwock Jan Fat v. White, 253 U.S. 454, 457-58
1953]
1391
Under the benign influence of these ideas, the law grew and
flourished, like Egypt under the rule of Joseph. Thousands of
cases were decided whose presence in the courts cannot be explained on any other basis s6 But what the status of many of
these cases is now is not altogether clear.
Q. Why?
A. There arose up new justices in Washington which knew not
Joseph. Citing only the harsh precepts of the very earliest decisions, they began to decide cases accordingly, as if nothing had
87
happened in the years between.
In the Knauff case, Justice Minton said that, "Whatever the

rule may be concerning deportation of persons who have gained
entry into the United States, it is not within the province of any
court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given
alien." 88 Since Congress has never expressly authorized any court
to review an exclusion order, this statement either ignores or renders obsolete every habeas corpus case in the books involving an
exclusion proceeding.
(1920), where the Court in setting aside an order excluding a person claiming to be
a citizen said:
It is fully settled that the decision by the Secretary of Labor, of such a
question as we have here, is final, and conclusive upon the courts, unless it be
shown that the proceedings were "manifestly unfair," were "such as to prevent a
fair investigation," or show "manifest abuse" of the discretion committed to the
executive officers by the statute, Low Wah Suey v. Backus, . . . or that "their
authority was not fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law." Tang Tun
v. Edsell, 223 U.S. 673, 681, 682. The decision must be after a hearing in good
faith, however summary, Chin Yow v. United States . . . and it must find adequate support in the evidence. Zakonaite v. Wolf ...
See generally DAviS, ADMiNisTRATivE LAW 827-29 (i951); Developments in
the Law-Immigration and Nationality, 66 HARv. L. REv. 643, 671-76, 681-82,
692-95 (1953), particularly the excellent discussion at pp. 671-76.
8
6Sge the hundreds of pages of decisions on the writ of habeas corpus in both
admission and deportation cases listed under the heading Aliens in 3 FED. Dio.
137-457 (1940).
" See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (interpreting the War Brides Act as permitting the wife of an American soldier to be
excluded without a hearing for security reasons); Shaughnessy v. United States
ex rel. Mezei, 345 U.S. 2o6 (1953).
For the uncontrolled power to deport an alien enemy, even after the cessation
of actual hostilities, see the five-to-four decision in Ludecke v. Watkins, 335 U.S.
z6o (1948). The frequently doctrinaire approach of the present Court to the
general problem is sharply exposed in Harisiades v. Shaughnessy, 342 U.S. 580
(1952) (suggesting that the power of Congress to specify grounds for deportation
is without limit).
I United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (99o).
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1392
[Vol. 66
On the procedural side, Justice Minton went so far as to say

that, "Whatever the procedure authorized by Congress is, it is
due process as far as an alien denied entry is concerned," 89 a
patently preposterous proposition.
Justice Clark repeated and applied both statements in the Mezei
0
case.9
Q. Then we're back where we started half a century ago?

A. Oh no. The aberrations have been largely confined to admission cases. In deportations, for the most part, the Court has
adhered to the sound and humane philosophy of the middle period.
In some respects it has even extended its applications. 9 '
What is happening is what so often happens when there has
been a development in the law of which the judges are incom-
pletely aware. Some decisions follow the earlier precedents and

some the later, until the conflict of principle becomes intolerable,
and it gets ironed out.

Q. Do you mean to say that you don't think there are any material differences between the case of an alien trying to get into
the country and the case of one whom the Government is trying
to put out?
A.
No. Of course there are differences in these alien cases-
not only those simple ones but many others.9" But such differs9 338 U.S. at g44.
90 Shaughnessy v. United States ex rel. Mezel, 345 U.S. 206 ('953).
91 In Kwong Hai Chew v. Colding, 344 U.S. 59o (1953), the Court decided
that "for purposes of his constitutional right to due process," the position of an
alien seaman previously admitted for permanent residence and applying for readmission after a four months voyage on an American vessel was to be "assimilate[d] . . . to that of an alien continuously residing and physically present in
the United States." With his position thus assimilated, the Court held that the
Constitution forbade it to construe the regulations permitting exclusion without
a hearing for security reasons, under which Knauff and Mezei had been.barred,
as applying to him.
In Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51 (igo), the Court held
that a hearing was "required by statute" within the meaning of 5 of the Administrative Procedure Act, on the ground that unless the statute were construed
to require such a hearing "there would be no constitutional authority for deportation." The actual case was that of a seaman who had overstayed his shore leave.
The Court referred to earlier cases as holding, "under compulsion of the Constitution," that a hearing is necessary "at least for aliens who had not entered
clandestinely and who had been here some time even if illegally." Cf. Heikkila v.
Barber, discussed in note 93 infra.
92 For example, if the alien is applying for admission, the force of his claim
may vary according to whether he is coming for the first time or seeking to resume
a permanent residence previously authorized. If he is coming for the first time,
it may make a difference whether he is a stowaway or in possession of a duly
1953]
1393
ences are material only in determining the content of due process

in the particular situation. What process is due always depends
upon the circumstances, and the Due Process Clause is always
flexible enough to take the circumstances into account.

The distinctions the Court has been drawing recently, however,
are of a different order. They are distinctions between when the
Constitution applies and when it does not apply at all. Any such
distinction as that produces a conflict of basic principle, and is
inadmissible.
Q. What basic principle?
A. The great and generating principle of this whole body of
law - that the Constitution always applies when a court is sitting
with jurisdiction in habeas corpus. For then the court has always
to inquire, not only whether the statutes have been observed, but
whether the petitioner before it has been "deprived of life, liberty,

or property, without due process of law," or injured in any other
way in violation of the fundamental law.
That is the premise of the deportation cases,9" and it applies in
authorized visa. If he has a visa, it may make a difference whether it is one for
permanent residence or only for a temporary visit. If he is seeking to resume a
previously authorized residence, it may make a difference whether he carries a
reentry permit, border crossing card, or other document purporting to facilitate
reentry.
Similarly, if the alien is resisting expulsion, the force of his claim may vary
according to whether he entered legally or illegally. If he entered legally, it may
make a difference whether he was duly admitted for permanent residence or came
in only as a seaman, student, or other temporary visitor for business or pleasure.
" See, in addition to the cases cited in notes 85 and 91 supra, Heikkila v.
Barber, 345 U.S. 229 (1953). Speaking for the Court, Justice Clark there held
squarely that judicial review in deportation cases is "required by the Constitution."
He said that "regardless of whether or not the scope of inquiry on habeas corpus
has been expanded, the function of the courts has always been limited to the
enforcement of due process requirements." Id. at 236.
It is to be observed that since the courts in habeas corpus have always enforced
statutory requirements, too, Justice Clark must here be understood as saying that
the Constitution gives the alien a right, among others, to have the statutes observed. The statement seems to apply equally to admission cases.
The Court gave this sweeping declaration of the constitutional rights of aliens
an ironical twist by turning it in the particular case against the alien. It said
that since review in habeas corpus was required by the Constitution rather than
by the statute, (the statute making deportation orders in terms "final"), the case
was one in which the "statutes preclude judicial review" within the meaning of
io of the Administrative Procedure Act. Hence a prospective deportee could
not get review of an order for his deportation under that section, and since he had
been set at large pending efforts to effectuate his removal he was for the moment
without a remedy.
Was it reasonable to read the statute as if Congress had said, "We wish to
1394
HARVARD LAW REVIEW
[Vol. 66
exactly the same way in admission cases. The harsh early decisions announcing a contrary premise applied such a contrary premise without distinction in both deportations and admissions.
Indeed, Justice Minton cited early admission and deportation
precedents indiscriminately in Knauff, without noticing that the
principle which had compelled repudiation of the deportation
precedents required repudiation also of the others. 4
That principle forbids a constitutional court vhth jurisdiction
in habeas corpus from ever accepting as an adequate return to the
writ the mere statement that what has been done is authorized by
act of Congress. The inquiry remains, if Marbury v. Madison
still stands, whether the act of Congress is consistent with the
fundamental law. Only upon such a principle could the Court
reject, as it surely would, a return to the writ which informed it
that the applicant for admission lay stretched upon a rack with
pins driven in behind his finger nails pursuant to authority duly
conferred by statute in order to secure the information necessary
to determine his admissibility. The same principle which would
justify rejection of this return imposes responsibility to inquire
into the adequacy of other returns.
Granting that the requirements of due process must vary with
the circumstances, and allowing them all the flexibility that can
conceivably be claimed, it still remains true that the Court is
obliged, by the presuppositions of its whole jurisdiction in this
area, to decide whether what has been done is consistent with due
process -and not simply pass back the buck to an assertedly
all-powerful and unimpeachable Congress.
Q. Would it have made any difference in Knaufi and Mezei if
the Court had said that the aliens were entitled to due process
except from this broad grant of judicial review all cases in which a statute precludes
judicial review, even where the statute does so unconstitutionally, and even though
the courts for half a century have been according judicial review under the statute,
saying as they did so that they were construing the statute to authorize such
review in order to save its constitutionality"?
94
Justice Minton cited Nishimura Ekiu and Fong YThe Ting, supra note 84,
and Ludecke v. Watkins, supra note 87, three times each. At the end of one
string of these citations, he included an unexplained "Cf. Yamataya v. Fisher,"
supranote 85. He cited no other alien cases.
As will be seen from the cases in note 85, the earlier premise, in substance, had
already been repudiated in admission as well as deportation cases. Justice Clark's
statement in Heikkila, supra note 93, that the function of courts in habeas corpus
cases "has always been limited to the enforcement of due process requirements"
makes this unmistakable.
1953]
1395
and had got it, instead of saying that they weren't entitled to it
at all?
A. At least the opinions in that case might have been intellectually respectable. Whether the results would have been different
depends upon subtler considerations. Usually, however, it does
make a difference whether a judge treats a question as not properly
before him at all, or as involving a matter for decision.
Take Knauff, for example. Remember that the War Brides Act
was highly ambiguous on the point in issue of whether exclusion
without a hearing was authorized. If one approaches such a question on the assumption that it is cdnstitutionally neutral, as
Justice Minton declared it to be, it is at least possible to resolve
the doubt as he resolved it. But if one sees constitutional overtones, the most elementary principles of interpretation call for
the opposite conclusion. Note how crucially important constitutional assumptions have been in the interpretation of statutes
throughout this whole area.
Again, take the facts of Mezei, in comparison with its dicta. The
dicta say, in effect, that a Mexican wetback who sneaks successfully across the Rio Grande is entitled to the full panoply of due
process in his deportation. 5 But the holding says that a duly
admitted immigrant of twenty-five years' standing who has married an American wife and sired American children, who goes
abroad as the law allows to visit a dying parent, and who then
returns with passport and visa duly issued by an American consul,
is entitled to nothing - and, indeed, may be detained on an island
in New York harbor for the rest of his life if no other country can
be found to take him.
I cannot believe that judges adequately aware of the foundations
of principle in this field would permit themselves to trivialize the
great guarantees of due process and the freedom writ by such distinctions. And I cannot believe that judges taking responsibility
for an affirmative declaration that due process has been accorded
would permit themselves to arrive at such brutal conclusions.
Q. But that is what the Court has held. And so I guess that's
that.
" "It is true that aliens who have once passed through our gates, even illegally,
may be expelled only after proceedings conforming to traditional standards of
fairness encompassed in due process of law." 345 U.S. at 212. Compare the facts
of The Japanese Immigrant Case, note 85 supra, Justice Jackson's statement in
Wong Yang Sung v. McGrath, note 91 supra, and the Court's holding in Kwong
Hal Chew v. Colding, note 91 supra.
1396
HARVARD LAW REVIEW
[Vol. 66
A. No, it isn't.
The deepest assumptions of the legal order require that the
decisions of the highest court in the land be accepted as settling
the rights and wrongs of the particular matter immediately in controversy. But the judges who sit for the time being on the court
have no authority to remake by fiat alone the fabric of principle
by which future cases are to be decided. They are only the custodians of the law and not the owners of it. The law belongs to
the people of the country, and to the hundreds of thousands of
lawyers and judges who through the years have struggled, in
their behalf, to make it coherent and intelligible and responsive
to the people's sense of justice.
And so, when justices of the Supreme Court sit down and
write opinions in behalf of the Court whidh ignore the painful
forward steps of a whole half century of adjudication, making no
effort to relate what then is being done to what the Court has done
before, they write without authority for the future. The appeal to
principle is still open and, so long as courts of the United States
sit with general jurisdiction in habeas corpus, that means an appeal to them and their successors.
B. In Default of Grantsof GeneralJurisdiction
Q. Well, maybe so and maybe not so. In any event, what I
thought was the sixty-four dollar question turned out to be only
the thirty-two dollar one. You've brought in general grants of
jurisdiction, and everything you've just been saying depends on
them. What if those grants didn't exist?
A. But they do exist. And although they don't quite cover
the waterfront, they take care of most of the basic situations. On
the crucial matter of personal liberty, there is the habeas corpus
statute we've just been talking about.9" There are Sections 1346
and 1491 of the Judicial Code to assure just compensation for
the taking of private property. 9T And, passing other special provisions, there is Section 1331 for denials of constitutional rights
generally.9 The principal hole is the jurisdictional amount requirement there, which, I admit, may be a big one.
Q. But suppose those statutes were repealed. Why wouldn't
96 28 U.S.C. 2241 (Supp. 1952).
97 28 U.S.C. 1346, 149i (Supp. 1952).
98 28 U.S.C. 1331 (Supp. 1952).
1953]
1397
the executive department then be free to go ahead and violate

fundamental rights at will?
A. That's a pretty unlikely situation, isn't it? You're supposing that two of the three branches of the federal government
are going to gang up on the third. Congress would need the executive arm to seize persons and property, if it were going to act
on an important scale. And the executive arm could be checked
by the courts unless Congress had repealed the general grants of
jurisdiction. If both of them did get together, it wouldn't be long
before the voters had something to say, would it?
Besides, what would be the practical incentive to act that way
in any very great number of situations? Remember the Federalist
papers. Were the framers wholly mistaken in thinking that, as
a matter of the hard facts of power, a government needs courts
to vindicate its decisions? Is there some new science of government that tells how to do it in some other way?
Q. Granting all that, you can do a lot of things without courts,
as the alien laws show. The problem can easily arise by deliberate
action directed to an unpopular group, or even by inadvertence.
Suppose Congress says flatly that no court shall have jurisdiction
in such and such a situation, even in habeas corpus?
A. The habeas corpus part of it would be in direct violation of
the Constitution. Article I, Section 9, Clause 2.
True, the Constitution does not explain what happens if the
constitutional command is disobeyed. In Ex parte Bollman,
Chief Justice Marshall said unequivocally that "the power to
award the writ by any of the courts of the United States must
be given by written law." 99 And in considering Section 14 of the
Judiciary Act of 1789 as a source of jurisdiction he observed:
It may be worthy of remark, that this act was passed by the first
congress of the United States, sitting under a constitution that bad
declared "that the privilege of the writ of habeas corpus should not be
suspended, unless when, in cases of rebellion or invasion, the public
safety may require it." Acting under the immediate influence of this
injunction, they must have felt, with peculiar force, the obligation of
providing efficient means by which this great constitutional privilege
should receive life and activity; for if the means be not in existence, the
privilege itself would be lost, although no law for its suspension should
99 4 Cranch 75, 93 (U.S. 1807).
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[Vol. 66
be enacted. Under the impression of this obligation, they gave to all

the courts the power of awarding writs of habeas corpus. 100
However, where statutory jurisdiction to issue the writ obtains,

but the privilege of it has been suspended in particular circumstances, the Court has declared itself ready to consider the validity
of the suspension and, if it is found invalid, of the detention.' 01
In such an event the courts at least may speak, though they may
still be helpless to enforce their orders if they are defied. 102
Q. Habeas corpus has a special constitutional position. But
suppose Congress is in dead earnest about withdrawing general
jurisdiction in a special class of cases arising under the Constitution. Do you mean that it could only accomplish that by repealing
Section 1331 in toto, on the theory that a mere amendment might
be declared unconstitutional and the prior Section 1331 then left
free to operate? Or that it couldn't accomplish it even by a total
repealer, since the repealer could be declared unconstitutional.
A. Well, now, I'll have to stall a little. Habeas corpus aside,

I'd hesitate to say that Congress couldn't effect an unconstitutional withdrawal of jurisdiction - that is, a withdrawal to effec100 Id. at 94.
101 Ex parte Milligan, 4 Wall. 2 (U.S. x866).
102 Cf. Taney, C.J., in Ex parte Merryman, I7 Fed. Cas. 153, No. 9487 (C.C.D.
Md. 186i):
I have exercised all the power which the constitution and laws confer upon me,
but that power has been resisted by a force too strong for me to overcome. It
is possible that the officer who has incurred this grave responsibility may have
misunderstood his instructions, and exceeded the authority intended to be given
him; I shall, therefore, order all the proceedings in this case, with my opinion, to
be filed and recorded in the circuit court of the United States for the district of
Maryland, and direct the clerk to transmit a copy, under seal, to the President of
the United States.. It will then remain for that high officer in fulfillment of his
constitutional obligation to "take care that the laws be faithfully executed," to
determine what measures he will take to cause the civil process of the United
States to be respected and enforced.
See RoSSITER, THE SUPRE E COURT AND THE COMMANDER-IN-CHIEF I8 et seq.
('95I).
The disgraceful effort of the Commanding General in Hawaii to prevent the
District Court from entertaining a petition designed to test the validity of the
purported suspension of the writ and the regime of martial law is recounted in
McColloch, Now it Can Be Told: Judge Metzger and the Military, 35 A.B.A.J. 365
(1949). See also Fairman, The Supreme Court on Military Jurisdiction:Martial
Rule in Hawaii and the Yamashita Case, 59 H Av. L. Rav. 833 (1946) ; Armstrong,
Martial Law in Hawaii, 29 A.B.A.J. 698 (1943); Anthony, Hawaiian Martial Law
in the Supreme Court, 57 Y.L, L.. 27 (1948); Duncan v. Kahanamoku, 327 U.S.
304 (1946). But cf. King, The Legality of Martial Law in Hawaii, 30 CALIF. L.
REV. 599 (1942); Houston, Martial Law in Hawaii, A Defense of the War-Time
Military Governor,36 A.B.A.J. 825 (195o).
1953]
1399
tuate unconstitutional purposes - if it really wanted to. But the

Court should use every possible resource of construction to avoid
the conclusion that it did want to.
Q. That's the second or third time you've said something like
that. What basis for it have you?
A. Sound principle. Our whole constitutional history shows
that Congress generally doesn't intend to violate constitutional
rights, and a court ought not readily to assume any sudden departure.
But there's a deeper reason which follows from what we were
saying a moment ago. In the end we have to depend on Congress
for the effective functioning of our judicial system, and perhaps
for any functioning. The primary check on Congress is the political check -the votes of the people. If Congress wants to frustrate the judicial check, our constitutional tradition requires that
it be made to say so unmistakably, so that the people will understand and the political check can operate.
Q. But you still haven't answered the question of what happens if Congress does withdraw jurisdiction unmistakably or if,
by inadvertence or whatever, there just isn't any grant of jurisdiction.
A. One current situation may present that question. The
present habeas corpus statute authorizes courts and judges to
issue the writ only "within their respective jurisdictions." Ahrens
3 held that the quoted language precluded the district
v. Clark ..
court for the District of Columbia from inquiry into restraint in
a New York district. This was held to be so even though the defendant Attorney General had issued the orders involved and had
supervision of the custodians. And the defect was held to be
one of jurisdiction which could not be waived. The Court reserved the question of possible application of this decision to
persons held abroad and so not under restraint in any judicial
district.
Q. You mean that such persons might have no access to the
writ at all?
A. Exactly. But the Court of Appeals of the District of Columbia considered any such conclusion inadmissible in the Eisentrager case, and held that the action should be entertained regardless. It said, without limitation to the habeas corpus problem, that
the provisions of Article III "were compulsory upon Congress to
20
335 U.S. x88 (1948).
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[Vol. 66
confer the whole of the federal judicial power upon some federal
court."
104
Q. I should think the government would have taken that case

up.
A. It did. But the victory it won was equivocal. The petitioners for the writ were German nationals, confined in Germany
upon conviction of war crimes by a United States military commission in China. The Supreme Court held that, as enemy aliens,
they had failed to state a case. But whether this was for the reason
that their confinement was legal or, though illegal, irremediable,
the opinion leaves obscure. 5 Thus the position of a citizen im104
Eisentrager v. Forrestal, 174 F.2d 96i (D.C. Cir. 3949). Judge Prettyman
wrote:
We think that if a person has a right to a writ of habeas corpus he cannot be
deprived of the privilege by an omission in a federal jurisdictional statute. This
conclusion follows from these premises. First. The right to habeas corpus is an
inherent-common law right. Second. The Federal Government cannot suspend the
privilege, except when, in cases of rebellion or invasion, the public safety may so
require. ...
Third. Congress could not effectuate by omission that which it could
not accomplish by affirmative action. So, if the existing jurisdictional act be construed to deny the writ to a person entitled to it as a substantive right, the act
would be unconstitutional. It should be construed, if possible, to avoid that result.
It may be reasoned that "courts which are created by written law, and whose
jurisdiction is defined by written law, cannot transcend that jurisdiction," and
that, therefore, a federal court has no jurisdiction outside that which is conferred
by congressional enactment, a written law. It might be, theoretically at least,
that in ordaining and establishing and conferring jurisdiction upon the inferior
courts, Congress might omit mention of some case or cases arising under the
Constitution or laws of the United States. In such event, the argument from the
above-stated premise might be that the contestants in that controversy were deprived of a forum for the adjudication of their dispute. We doubt that the affirmative conclusion to that proposition would be valid if the case concerned the
authority of officials of the United States to act. It is established that a state court
cannot inquire, upon petition for habeas corpus, into the validity of the confinement
of a person held under the authority of the United States. Therefore, unless the
federal jurisdiction statute be construed as co-extensive with governmental action
by United States officials, such action outside the specifications of the statute would
be wholly immune from judicial power; in other words, outside the necessity for
compliance with the constitution. To state the proposition would seem to refute it.
Moreover, the constitutional grant of judicial power to the Federal Government
extends "to all Cases, in Law and Equity, arising under" the Constitution and laws
of the United States and under the treaties made under its authority. And the
Constitution further provides that the judicial power of the United States "shall
be vested" in the Supreme Court and in such inferior courts as Congress may
establish. It was held early in our history that these provisions were compulsory
upon Congress to confer the whole of the federal judicial power upon some federal
court [citing Martin v. Hunter's Lessee]. The Supreme Court has denied that it
has jurisdiction to issue a writ upon petition of a person confined outside the
United States. It follows that if the case presented by these appellants arises under
the Constitution, laws or treaties of the United States, as it clearly does, jurisdiction
to entertain it is in some district court by compulsion of the Constitution itself.
Id. at 965-66.
5
'o
Johnson v. Eisentrager, 339 U.S. 763 (19so). Cf. Ludecke v. Watkins, 335
U.S. 16o (1948).
1953]
1401
prisoned abroad who states a genuine challenge to the legality, or

even the constitutionality, of his detention remains undecided. 10 6
VIII. CONCLUSION
Q. At least the Court in Eisentrager didn't squarely accuse

Congress of intending to leave constitutional rights without a remedy, where Congress hadn't said that. But it ducked the ultimate
question, just as you've done so far.
A. I've given all the important answers to that question, haven't
I? I would have thought the rest was clear. Why, it's been clear
ever since September 17, 1787.
Q. Not to me.
A. The state courts. In the scheme of the Constitution, they
are the primary guarantors of constitutional rights, and in many
cases they may be the ultimate ones. If they were to fail, and if
Congress had taken away the Supreme Court's appellate jurisdiction and been upheld in doing so, 0 7 then we really would be sunk.
Q. But Congress can regulate the jurisdiction of state courts,

too, in federal matters.
A. Congress can't do it unconstitutionally. The state courts
always have a general jurisdiction to fall back on. And the Supremacy Clause binds them to exercise that jurisdiction in accordance with the Constitution.
106 See Wolfson, Americans Abroad and Habeas Corpus: The Trap Begins to
Close, io FED. B.J. 69 (1948); Pelman, Habeas Corpus and Extraterritoriality:

A Fundamental Question of Constitutional Law, 36 A.B.A.J. r87 (i95o); Note,
Habeas Corpus Protection Against Illegal ExtraterritorialDetention, 5z CoL. L.
R.v. 368 ('g5').
107The vulnerability of the Supreme Court's appellate jurisdiction to control
by Congress has led recently to serious proposal of amendment of the Constitution.
Initiated by the Association of the Bar of the City of New York, supported by
former Justice Roberts and, after some conflict of views, by the American Bar
Association, the suggestion is that Article III, Section 2, be amended to provide
in substance that the Supreme Court shall have appellate jurisdiction in allcases
arising under the Constitution of the United States, both as to law and fact, with
such exceptions and under such regulations as the Court shall make. See 34 A.B.A.J.
1072-73 (1948); Roberts, Now is the Time: Fortifying the Supreme Court's Independence, 35 A.B.A.J. z (1944); 75 A.B.A. REa. 1i6 (ig5o); Tweed, Provisions
of the Constitution Concerning the Supreme Court of the United States, 31
B.U.L. REv. i (1951). On the opposite problem, see Fite and Rubinstein, Curbing
the Supreme Court-State Experiences and Federal Proposals, 35 Micir. L. REv.
762 (X937).
How much danger is there that any sustained attack upon judicial review will
take the form of a contraction of the Supreme Court's appellate jurisdiction,
leaving "inferior" federal and/or state courts to speak the final words?
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[Vol. 66
Q. But the Supreme Court could reverse their decisions..

A. Not lawfully, if the decisions were in accordance with the
Constitution. Congress can't shut the Supreme Court off from
the merits and give it jurisdiction simply to reverse. Not, anyway, if I'm right that the implications of Estep were an aberration, and that jurisdiction always is jurisdiction only to decide
constitutionally.

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The Power of Congress To Limit The Jurisdiction of Federal Courts: An Exercise in Dialectic

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THE POWER OF CONGRESS TO LIMIT THE

JURISDICTION OF FEDERAL COURTS:

he reports are full of what may be thought to be injudiciously

CONTROL OF FEDERAL JURISDICTION

examples a unanimous Supreme Court recognized the power of

LIMITATIONS AS TO WHICH COURT HAS JURISDICTION

Q. Does the Constitution give people any right to proceed or

Ex parteMcCardle, 7 Wall. 5o6, 514 (U.S. i868).

AND WECuSLER, THE FEDERAL CouRTs AND TME FEDERA

will be published in September, 1953, by The Foundation Press, Inc., of Brooklyn, N. Y.

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jurisdiction when the consequence is merely to force proceedings

CONTROL OF FEDERAL JURISDICTION

A. It's not impossible for me to lay down a measure. The

Paragraph 3,16 and the Sixth Amendment.lr

Q. Does the Constitution give people any right to proceed or

SUPREMM COURT 3W UNITED STATES HISTORY 496-97 (1937 ed.).

See Robertson v. Railroad Labor Bd., 268 U.S. 61g (1925).

HARVARD LAW REVIEW

be proceeded against, in the first instance, in an inferior federal

Q. The power of Congress to regulate jurisdiction gives it a

CONTROL OF FEDERAL JURISDICTION

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CONTROL OF FEDERAL JURISDICTION

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A. For reasons of principle, which I'll develop later. And on

Q. Well, if it's too simple for you, let me complicate it a little

(1931); Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937).

CONTROL OF FEDERAL JURISDICTION

Too, the Government may be under

other kinds of practical

Finally, no democratic government can be immune to the

COURTS AND COURTS IN THE POSITION OF ENFORCEMENT

COURTS: THE POSSIBILITY OF JUDICIAL CONTROL

HARVARD LAW REVIEW

Q. Will you please explain what's wrong with the logic?

In accordance with the statutory procedure, Benson

brought suit to enjoin enforcement of a compensation award under the Federal

CONTROL OF FEDERAL JURISDICTION

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the court has to decide as a matter of construction - including

A. The Yakus case and Crowell v. Benson give you a good

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A. It's a right with very different implications. That was the

CONTROL OF FEDERAL JURISDICTION

A. Most commentators question its present vitality, at least

See, e.g., DAVIS,

(I95I); Benjamin, Judicial

Review of Administrative Adjudication: Some Recent Decisions of the New York

340 U.S. 504 (i951) (upheld administrative determination of the meaning of

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A. That depends on how you define "law." I think Professor

CONTROL OF FEDERAL JURISDICTION

that, in a civil enforcement proceeding, questions of law can be

If a prior opportunity for review by a legislative court, such as the Tax

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327 U.S. 114, 119 (1946).

CONTROL OF FEDERAL JURISDICTION

to report for induction had failed to exhaust his administrative

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CONTROL OF FEDERAL JURISDICTION