Separation of powers in the federal government inevitably generates conflicts among the branches. In recent years the executive branch’s authority to impound funds appropriated by Congress and to make war without congressional approval has been questioned. In earlier days debate raged over the Supreme Court’s authority to nullify legislation passed by Congress. A recurrent example of this phenomenon has been the struggle between Congress and the judiciary over the scope of congressional control of federal court jurisdiction. The recent controversy over school busing has highlighted this problem. The problem is, however, neither novel nor peculiar to the busing issue. In considering the first judiciary act Congress debated the scope of its authority to regulate the jurisdiction of the federal courts. In the last twenty years unpopular decisions by federal courts, particularly the Supreme Court, have led to serious discussions of curtailing federal court jurisdiction.

After Brown v. Board of Education there was a movement to withdraw Supreme Court jurisdiction to hear school desegregation cases. During and after the McCarthy era, and perhaps in response to it, the Supreme Court conferred upon citizens what some felt to be unduly broad protection from legislative investigations. This prompted a proposal to curtail Supreme Court jurisdiction to review cases involving contempt of Congress, as well as cases involving state and federal regulation of subversive activities. After Reynolds v. Sims a bill which passed the House of Representatives would have withdrawn jurisdiction from the Supreme Court and the district courts to hear cases in which plaintiffs sought to force reapportionment of state legislatures. From 1953 to 1969 over 60 unsuccessful bills were introduced in Congress to curtail some aspect of federal jurisdiction. Today, because of a number of district court decisions ordering the busing of schoolchildren to overcome segregation, the issue of congressional dominion over federal court jurisdiction is again of vital national importance.

During the current controversy there have been two approaches to the subject of Congress’ control of federal jurisdiction. The position taken most often in contemporary debate begins with the assumption that Congress has authority to abolish the lower federal courts. Since Congress has the power to abolish, this argument runs, Congress must have plenary control over inferior federal jurisdiction. Others have begun with the same assumption but feel that a resolution of the subsequent questions is not so easily achieved. Must Congress, they ask, to satisfy Article III, vest jurisdiction in some federal court to hear all cases within the federal judicial power? What are the limits on congressional control of Supreme Court jurisdiction? If Congress can remove an entire class of cases from the district court level, can Congress also limit the remedies available to a court once it is given jurisdiction to hear a case? Virtually all of those who have engaged in this contemporary debate, however, assume that Congress may abolish the lower federal courts.

That such an important assumption should be unquestioned in the current furor over busing is surprising. Clearly it limits the range of argument open to those favoring broad mandatory federal jurisdiction. If the assumption is false, inquiry should be redirected to whether Congress may selectively withdraw jurisdiction to grant a particular remedy from district courts and to whether it may withdraw a particular case or class of cases from those tribunals.

This article will attempt to demonstrate that the premise that Congress may abolish the lower federal courts is false. Such courts may in the beginning have been a luxury for the young nation. Today they are almost as necessary as the Supreme Court in performing the functions given the federal judiciary in the Constitution. “The life of a nation” has come to depend in no small degree on these bodies and their too hastily assumed mortality should be a matter of general concern. If it is true, as I argue, that inferior federal courts may not be abolished, then resolution of the corollary questions of whether Congress can selectively curtail jurisdiction or resort to certain remedies is more difficult.