Can It Invoke Its Authority to Regulate Federal Judicial Procedures?
Ordinarily, Congress has wide latitude to legislate concerning the creation or removal of hurdles one must overcome before filing claims in federal court. After all, the Constitution gives Congress the power to “ordain and establish” and “constitute” lower federal courts, and that has generally been thought to give Congress the power to regulate the procedures concerning access to those courts — providing, that is, that the case is one that the Constitution permits to be heard in the federal judiciary in the first place. Moreover, as a general matter, claims of violation of federal constitutional rights are certainly among the kind that the Constitution allows federal courts to hear. But one should not jump from these propositions to the conclusion that HR 4772 is constitutional – for a recent line of Supreme Court cases may stand directly in the proposed legislation’s path. The Supreme Court’s Reminders that Congress Cannot Redefine Federal Constitutional Rights In that line of cases
