[Congressional Record Volume 150, Number 108 (Monday, September 13, 2004)]
[Extensions of Remarks]
[Pages E1604-E1605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 CRS LETTER ADMITTING ITS ERRONEOUS STATEMENT IN A MEMO ISSUED DURING 
            DEBATE ON H.R. 3313, THE MARRIAGE PROTECTION ACT

                                 ______
                                 

                    HON. F. JAMES SENSENBRENNER, JR.

                              of wisconsin

                    in the house of representatives

                       Monday, September 13, 2004

  Mr. SENSENBRENNER. Mr. Speaker, on July 22, 2004, the House debated 
and passed H.R. 3313, the Marriage Protection Act, a bill that would 
prevent Federal courts from striking down the protection we granted to 
States in the Defense of Marriage Act. That protection allows states to 
refuse to recognize same-sex marriage licenses issued in other States 
if they so choose.
  In the midst of floor debate on H.R. 3313, the Congressional Research 
Service issued a memorandum to the minority staff of the House 
Judiciary Committee, which stated: ``We are not aware of any precedent 
for a law that would deny the inferior Federal courts original 
jurisdiction or the Supreme Court of appellate jurisdiction to review 
the constitutionality of a law of Congress.'' Those on the other side 
of the aisle made much of this statement, and the statement was widely 
reported in the press.
  I would like to set the record straight. The statement that Congress 
has never passed a law that would deny Federal courts jurisdiction to 
hear a constitutional claim is false, and the most cursory review of 
American history shows that. The very first Judiciary Act of 1789 
denied the inferior Federal courts original jurisdiction and the 
Supreme Court appellate jurisdiction to review the constitutionality of 
literally thousands of Federal statutes under a jurisdictional regime 
that governed for roughly a century.
  The Judiciary Committee majority staff pointed out these precedents 
to the Congressional Research Service in a letter sent on August 4, 
2004, asking CRS if its position continued to be that ``there is not 
`any precedent for a law that would deny the inferior federal courts 
original jurisdiction or the Supreme Court of appellate jurisdiction to 
review the constitutionality of a law of Congress.' ''
  On August 16, the Congressional Research Service responded in a 
letter that states: ``our earlier memorandum was incorrect.'' (Emphasis 
added). Let me repeat that. CRS admitted that: ``our earlier memorandum 
was incorrect.'' CRS goes on to note that it recognizes ``the fact that 
as written and construed [the Judiciary Act of 1789] did operate to 
preclude any federal court from deciding the validity of a federal 
statute from 1789 to 1875.''
  I would like to submit for the Record, in addition to my statement, 
the original erroneous memorandum sent by the Congressional Research 
Service, the letter to CRS from the majority staff of the committee 
requesting a clarification of CRS's views, and the response from CRS 
admitting its error.
  So let the record be clear. H.R. 3313, the Marriage Protection Act, 
has ample precedent in American history, and the Congressional Research 
Service agrees.

                     Congressional Research Service


                               Memorandum

     To: House Committee on the Judiciary, Attention: Perry 
         Apelbaum.
     From: Johnny H. Killian, Senior Specialist, American 
         Constitutional Law, American Law Division.
     Subject: Precedent for Congressional Bill.

       This memorandum is in response to your query, respecting 
     H.R. 3313, now pending before the House of Representatives, 
     as to whether there is any precedent for enacted legislation 
     that would deny judicial review in any federal court of the 
     constitutionality of a law that Congress has enacted, whether 
     a law containing the jurisdictional provision or an earlier, 
     separate law. We are not aware of any precedent for a law 
     that would deny the inferior federal courts original 
     jurisdiction or the Supreme Court of appellate jurisdiction 
     to review the constitutionality of a law of Congress.
                                  ____


 [Letter sent to the Congressional Research Service from the Committee 
                           on the Judiciary]

                                                   August 4, 2004.
     Mr. Johnny Killian,
     Madison Building, Library of Congress,
     Washington, DC.
       Dear Johnny: In an undated Memorandum from yourself to 
     Perry Apelbaum, the minority chief counsel of the House 
     Judiciary Committee, you stated ``We are not aware of any 
     precedent for a law that would deny the inferior federal 
     courts original jurisdiction or the Supreme Court of 
     appellate jurisdiction to review the constitutionality of a 
     law of Congress.'' This Memorandum was made known to us in 
     the midst of House floor debate on H.R. 3313, the Marriage 
     Protection Act, on July 22, 2004.
       In the Judiciary Act of 1789, (Footnote Text: Judiciary Act 
     of 1789, 1 Stat. 85 (1789)) Congress provided no general 
     federal question jurisdiction in the federal courts below the 
     Supreme Court. (Footnote Text: See Richard H. Fallon, Daniel 
     J. Meltzer, and David L. Shapiro, Hart & Wechsler's The 
     Federal Courts and the Federal System (4th ed. 1996) at 33 
     (stating that in the Judiciary Act of 1789, ``Congress 
     provided no general federal question jurisdiction in the 
     lower federal courts'')). The federal circuit courts were 
     vested with jurisdiction according to the nature of the 
     parties rather than the nature of the dispute. The Judiciary 
     Act of 1789 provided ``the circuit courts shall have original 
     cognizance . . . of all suits of a civil nature at common law 
     or in equity, where the matter in dispute exceeds . . . the 
     sum . . . of five hundred dollars, and the United States are 
     plaintiffs, or petitioners; or an alien is a party, or the 
     suit is between a citizen of the State where the suit is 
     brought, and a citizen of another State.'' (Footnote Text: 
     Judiciary Act of 1789, 1 Stat. 73, Sec. 11 (1789))
       Further, and of relevance here, Section 25 of the Judiciary 
     Act of 1789 restricted the Supreme Court's appellate 
     jurisdiction over state court decisions to cases where the 
     validity of a treaty, statute, or authority of the United 
     States was drawn into question and the state court's decision 
     was against their validity (Footnote Text: Judiciary Act of 
     1789, 1 Stat. 73, Sec. 25 (1789)) or where a state court 
     construed a United States constitution, treaty, statute, or 
     commission and decided against a title, right, privilege, or 
     exemption under any of them. (Footnote Text: Judiciary Act of 
     1789, 1 Stat. 73, Sec. 25 (1789))
       Consequently, under the Judiciary Act of 1789, if the 
     highest state courts upheld a federal law as constitutional 
     and decided in favor of a right under such federal statute 
     (and there was no coincidental federal diversity 
     jurisdiction), no appeal claiming such federal law was 
     unconstitutional was allowed to any federal court, including 
     the Supreme Court. The Judiciary Act of 1789, therefore, 
     denied the inferior federal courts original jurisdiction 
     and the Supreme Court appellate jurisdiction to review the 
     constitutionality of literally thousands of laws of 
     Congress in the many and various circumstances meeting the 
     criteria just mentioned.
       Congress did not grant a more general federal question 
     authority to the lower federal courts until after the Civil 
     War, (Footnote Text: See Act of Mar. 3, 1875, ch. 137, 18 
     Stat. 470 (1875)) and Congress did not grant the Supreme 
     Court the authority to review state court rulings upholding a 
     claim of federal right until 1914. (Footnote Text: See 
     Judiciary Act of 1914, Act of Dec. 23, 1914, ch. 2, 38 Stat. 
     790 (1914)) Until 1914, then, a situation existed in which 
     the constitutionality of literally thousands of federal laws 
     could not be reviewed in either the inferior federal courts, 
     or the Supreme Court, or both.
       We are not aware of any doubt about these facts among 
     scholars of federal court jurisdiction.
       The Judiciary Act of 1789, of course, went far beyond what 
     H.R. 3313 would do regarding federal court jurisdiction. 
     While the Judiciary Act of 1789 precluded all federal court 
     review of constitutional issues when state courts upheld any 
     law of Congress (expressing a policy distinctly in favor of 
     the validity of federal law), H.R. 3313 simply provides that 
     challenges brought against one section of the Defense of 
     Marriage Act, codified at 28 U.S.C. Sec. 1738C, (Footnote 
     Text: 28 U.S.C. Sec. 1738C states ``No State, territory, or 
     possession of the United States, or Indian tribe, shall be 
     required to give effect to any public act, record, or 
     judicial proceeding of any other State, territory, 
     possession, or tribe respecting a relationship between 
     persons of

[[Page E1605]]

     the same sex that is treated as a marriage under the laws of 
     such other State, territory, possession, or tribe, or a right 
     or claim arising from such relationship.'') be brought in 
     federal court, and in no way favors any particular outcome.
       Therefore, I am writing to ask you whether you continue to 
     believe the statement that there is not ``any precedent for a 
     law that would deny the inferior federal courts original 
     jurisdiction or the Supreme Court of appellate jurisdiction 
     to review the constitutionality of a law of Congress'' is 
     correct.
       We would appreciate your answer as soon as possible, but no 
     later than August 16, 2004.
           Sincerely,
                                                        Phil Kiko,
     Chief of Staff/General Counsel.
                                  ____


    [Letter in response to the letter dated August 4, 2004 from the 
   Congressional Research Service to the Committee on the Judiciary]


                               Congressional Research Service,

                                                   August 16, 2004

                               Memorandum

     To: House Committee on the Judiciary, Attention: Philip C. 
         Kiko.
     From: Johnny H. Killian, Senior Specialist, American 
         Constitutional Law, American Law Division.
     Subject: Congressional Control of Jurisdiction of Federal 
         Courts.

       This memorandum responds to your request that we reassess 
     an earlier memorandum of ours that was prepared for Congress 
     in light of construction of an early congressional enactment.
       In brief, during consideration of H.R. 3313, the Marriage 
     Protection Act, in the House of Representatives, we were 
     asked whether we were aware of any precedent for the 
     provisions of the bill that would deny all federal courts, 
     the Supreme Court under its appellate jurisdiction and the 
     inferior courts under their original jurisdiction, of 
     authority to review any questions pertaining to the 
     interpretation of, or the validity under the Constitution of, 
     28 U.S.C. Sec. 1738C. That statute provides that no State, or 
     other relevant jurisdiction, is required to give full faith 
     and credit to any public act, record, or judicial proceeding 
     that recognizes marriage between two persons of the same sex. 
     We responded, first orally and then by a brief memorandum, 
     that we were not aware of any precedent for a law that would 
     deny to all federal courts the power to review the 
     constitutionality of a law of Congress.
       You have called our attention to provisions of the 
     Judiciary Act of 1789, 1 Stat. 85, specifically Sec. Sec. 11, 
     25, which you contend contradict our memorandum and do deny 
     all federal courts jurisdiction to review the 
     constitutionality of acts of Congress. We do acknowledge that 
     the cited provisions of the first Judiciary Act do in some 
     respects prevent federal judicial review of the 
     constitutionality of some acts of Congress, with, however, 
     some qualifications that we set out below. Nonetheless, there 
     were, indeed, some circumstances under which federal court 
     jurisdiction was denied or not provided, so that our 
     memorandum was not entirely accurate.
       Our response requires some analysis. As you point out and 
     as it is the consensus of the scholarly community, the first 
     Judiciary Act did not confer on the federal courts, both the 
     inferior federal courts and the Supreme Court, all the 
     jurisdiction that might have been conferred under Article III 
     of the Constitution. (Footnote Text: See R. Fallon, D. 
     Melzer, & D. Shapiro, Hart & Wechsler's The Federal Courts 
     and the Federal System (4th ed., 1996), 29-33; W. Casto, The 
     First Congress's Understanding of Its Authority Over the 
     Federal Courts' Jurisdiction, 26 B.C. L. Rev. 1101, 1116-
     17(1985)). Thus, Sec. 11 of the Judiciary Act generally 
     conferred diversity jurisdiction, with some limits, on the 
     inferior federal courts, and a few other grants, but it 
     did not confer federal question jurisdiction, that is, 
     jurisdiction arising under the Constitution, laws, and 
     treaties of the United States. So, absent the ability of 
     litigants to obtain original jurisdiction in the inferior 
     federal courts under some other head of jurisdiction, the 
     constitutionality of federal statutes could not be 
     attacked in those inferior federal courts. Some few 
     instances of federal question jurisdiction appeared in the 
     historical record, but it was not until 1875 when Congress 
     conferred general federal question jurisdiction on the 
     inferior federal courts, subject to a jurisdictional 
     amount limitation. 18 Stat. 470.
       However, such actions could be brought in the state courts, 
     and the Supreme Court had limited appellate jurisdiction to 
     review the state court decisions. This presents the focal 
     point of the issue before us. Congress did not confer 
     complete appellate jurisdiction over such questions decided 
     by state courts. There were three categories of jurisdiction 
     (Footnote Text: Casto, cited in fn. 1, 1118-20). That is, the 
     Supreme Court enjoyed appellate jurisdiction:
       1. Where the validity of a treaty, statute, or authority of 
     the United States is drawn into question and the state 
     court's decision is against their validity.
       2. Where the validity of a state statute or authority is 
     challenged on the basis of federal law and the state court's 
     decision is in favor of their validity.
       3. Where a state court construes a United States 
     constitution, treaty, statute, or commission and decides 
     against a title, privilege, or exemption under any of them.
       Thus, the Supreme Court's appellate jurisdiction in these 
     cases depended upon the particular results reached by the 
     state courts. The first grant clearly recognized the federal 
     interest in having one national, uniform resolution of the 
     question of the validity of a federal law or a treaty, so 
     that if a state court decision invalidated either under the 
     U.S. Constitution the Supreme Court could review it. Only if 
     the state court upheld the federal law or treaty did the 
     Supreme Court lack jurisdiction. Obviously, Congress had in 
     mind the federal interest involved in this situation, but it 
     is nonetheless true that one challenging the validity of a 
     federal law could not take that challenge to the Supreme 
     Court if he lost in the state court.
       Similarly, if a litigant challenged a state law as being 
     invalid under a federal law and the state court upheld the 
     validity of the state law, the litigant could appeal to the 
     U.S. Supreme Court and obtain an answer. But if a litigant 
     was defending in state court a claim under a state law, 
     including a contention the federal law was invalid, and that 
     court held the state law invalid under federal law, the 
     litigant could not appeal that decision to the U.S. Supreme 
     Court. So the way that Sec. 25 was worded did have the 
     effect, at least in some instances, of insulating a federal 
     law from a federal constitutional attack (Footnote Text: The 
     law, incidentally, was not changed until 1914, 38 Stat. 790, 
     as a result of the decision in Ives v. South Buffalo Ry., 201 
     N.Y. 271, 94 N.E. 431 (1911), invalidating a regulatory 
     measure under a Lochner-like application of the Fourteenth 
     Amendment's due process clause. One may wonder how often this 
     kind of thing happened if the law was not changed for 85 
     years).
       Now, one can imagine that federal laws were not forever 
     protected from constitutional challenge, that a challenge 
     might only often be postponed. Just consider, the instance 
     might arise in which a state court invalidated a state law as 
     in conflict with a federal law, and the losing party in 
     the state court could not appeal that decision. But in a 
     Nation of many States, thirteen when the Judiciary Act was 
     passed in 1789, as compared to some 40 or so by 1875, when 
     the inferior federal courts were invested with federal 
     question jurisdiction, how many times is it likely that in 
     only one State a federal law of general applicability that 
     could be interpreted as invalidating a state law would be 
     challenged. No principle of res judicata or collateral 
     estoppel would prevent a challenge to such state laws 
     being brought in many States and surely state courts would 
     be divided. Eventually, the issue would come to the U.S. 
     Supreme Court.
       That the effect of Sec. 25 might only infrequently result 
     in the constitutionality of a federal statute being insulated 
     from review does not alter the fact that as written and 
     construed the section did operate to preclude any federal 
     court from deciding the validity of a federal statute from 
     1789 to 1875. Accordingly, our earlier memorandum was 
     incorrect.

                          ____________________