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

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The Exceptions Clause as a Structural Safeguard

Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the kind that exits in Canada and Israel? These countries take a departmentalist approach to allow the legislature to override the Court, “notwithstanding” its ruling. Although America is a presidential framework, a paradox emerges: evidence exists that its system already makes possible the equivalent of a notwithstanding clause. This consists of Congress and the President together “overruling” the Supreme Court. In another sense, however, this is not an accepted practice—large parts of the legal community hold that the US Constitution establishes judicial supremacy. To better understand this dynamic, we consider two kinds of power: formal and authorized (potestas) as well as direct and concrete (potentia). The contrast between the positions on both power and sovereignty of Thomas Hobbes (associated with potestas) and Baruch Spinoza (linked to potentia) helps clarify these issues in a contemporary context. It turns out that a robust departmentalist equivalent of the notwithstanding clause already exists in the US, as a matter of Hobbesian potestas but not of Spinozist potentia. Another term for the latter is pouvoir constituant. Spinoza’s perspective on political activity further clarifies the in-between nature of the American override capacity: the active or passive character of a multitude is not binary, but is a matter of degree. Without making an institutional recommendation, we note that Spinoza’s understanding of power also allows for dynamic interaction between potentia and potestas: formal authorization can contribute to the expression of direct power. It is, therefore, conceivable that additional codification of the existing American override capacity, either through a joint declaration of Congress and the Presidency or a Constitutional Amendment, can strengthen the effective sovereignty of the American people in relation to the courts.

An American Notwithstanding Clause? Between Potestas and Potentia

Although judicial review is used to police constitutional boundaries, the practice raises serious democratic concerns because unelected judges can overrule the decisions of political majorities. Using an agency model we show that judicial review has a heretofore unacknowledged democracy-enhancing effect. By constraining the policy choices made by elected representatives, judicial review increases the importance of office benefits as compared to policy benefits, making it more likely that politicians behave in the voters’ best interests. Politicians do so across policy issues, including those that courts cannot review, leading to a spillover effect. These effects do not depend on the preferences of the court, nor on the courts’ decisions being observed by the voters. The overall impact judicial review has on democracy is ambiguous, however, as this democracy-enhancing effect comes at the expense of turning some policies over to the courts. We suggest that this ambiguity can be resolved in favor of democracy by tailoring the courts’ jurisdiction or standards of review.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2672678_code1519370.pdf?abstractid=1990527&mirid=1

Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution

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The Domestic Relations Exception to Federal Jurisdiction: Rethinking an Unsettled Federal Courts Doctrine

Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways at odds with basic constitutional structures and due process requirements. Objections to Auer have given cogent reasons why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do not explain why Congress should be disabled in all instances from granting administrators discretionary authority over rule-interpretation—even in settings not raising serious risk of partiality or unfair surprise in administrative construction. 
Examining the relationship between statutorily-directed deference and constitutional-structural principles clarifies the essential underlying objection to Auer and the limits of that objection. When Congress by law confers discretionary authority that does not exceed its constitutional power to delegate functions to an administrator, courts should respect that assignment of authority unless it violates other specific constitutional commands. 
Yet, when delegations are at most only arguably consistent with the Constitution, extending deference—especially expanding deference as Auer does in successive determinations—exacerbates delegations’ difficulties. 
A reinvigorated non-delegation doctrine would solve the major Auer problem directly, and elimination of Auer-like deference would be clearly preferable to retaining the doctrine in its current form. Short of that, demanding that the statutory basis for deference is clearly articulated—that Congress plainly convey authority for administrators to exercise discretion at the second level of administrative rule implementation as well as the first level of more direct statutory implementation—would provide a modest first step in cabining problems associated with constitutionally questionable delegations of law-making authority. Those who embrace the rule of law, whether advocates or opponents of the modern administrative state, should support that step.

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Auer Deference: Doubling Down on Delegation's Defects

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Paul M. Bator

Papers

Congressional Power over the Jurisdiction of the Federal Courts