Debra Lyn Bassett · November 2007
76 GEO. WASH. L. REV. 52 (2007)
Article III of the United States Constitution and by the statutory architecture set out in the Judicial Code. By longstanding and deeply entrenched interpretive practice, federal courts have erected a singular approach to statutory interpretation involving the primary statutory grants of judicial power. This singular schema rests importantly on two distinctive features unique to the historical and structural context that created and regulate our federal judicial system.
In terms of historical context, a first principle in interpreting the Judicial Code—ingrained in judges, lawyers, and legal academics—is the understanding that although textually a statute, the First Judiciary Act was drafted by a Congress that included many of the original Framers. As a result, these statutory provisions have been ascribed a stature near that enjoyed by Article III itself.
This deference to the First Judiciary Act perhaps makes some sense as applied to the fundamental grants of judicial power found today in 28 U.S.C. §§ 1331 and 1332, which are imperfect mirrors—but mirrors nevertheless—of the constitutional statements in Article III, Section 2. But such deference makes considerably less sense as applied to the judicial powers granted by that first Congress that are found nowhere in Article III, notably the removal power and elements of the judicial power that differ from or tamper with federal court powers found in Article III. And certainly any deference to the First Judiciary Act would not justify an ongoing deference to congressional enactments more generally.
In terms of structural context, separation-of-powers principles impose exceptional interpretive constraints on federal courts’ constructions of their own judicial power. The heart of this special relationship is one that invokes caution beyond even the prudential constraints required when federal courts review actions of the other two branches of government: here the federal courts operate in the most blatant conflicts of interest; they must interpret the scope of their own powers. This is a structural difficulty from which there is no escape—and one familiar since Marbury v. Madison. Whatever deference was appropriate in interpreting statutes passed by the first Congress in the late 1700s, and whatever structures bind federal courts in interpreting the congressionally created boundaries of their own powers—operating under the dual constraints of conflict of interest and general separation-of-powers principles—the context of federal jurisdiction raises distinctive statutory interpretation issues.
Recently, the Supreme Court has suggested that despite the distinctive nature of jurisdictional statutes, such statutes implicate only traditional notions of statutory construction. Indeed, the Court’s most recent decision involving jurisdictional statutory interpretation, Exxon Mobil Corp. v. Allapattah Services, Inc., seemed to suggest that there is nothing special about jurisdictional statutes. The Allapattah majority stated that with respect to jurisdictional statutes, “[o]rdinary principles of statutory construction apply,” and such statutes should be read neither broadly nor narrowly. But, as this Article explains, this has not been, and is not, true.
The distinctive nature of federal jurisdiction statutes demands a more constitutionally oriented interpretive approach. Traditional methods of statutory interpretation are inadequate because they fail to take this unique character into account. Jurisdictional statutes are subject to unique interpretive difficulties not encountered in the judicial construction of ordinary congressional legislation ranging from the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) to the reach of the No Child Left Behind Act of 2001 (“No Child Left Behind”). These unique interpretive difficulties necessitate a wider range of considerations in the jurisdictional arena, including the traditional rules of statutory construction plus the Constitution itself as an interpretive document, all the while being cognizant of the potential for issues concerning separation of powers and conflicts of interest. In short, this Article proposes that in approaching their tasks of statutory construction in this area involving the reach of their own powers, federal courts should be guided by rules as understood and informed by the gravitational pull of Article III, and saving constructions are inappropriate. This Article explores these interpretive issues in the specific context of the interpretation of the 1988 amendment to 28 U.S.C. § 1332 pertaining to permanent-resident aliens, an odd and interesting provision that has generated three different interpretive results from the three circuit courts that have examined it, despite the unconstitutionality of the statute’s unambiguous plain language.
