Legal scholars have debated and some have even denied that Congress has the power to withdraw or strip jurisdiction from federal courts. For 200 years Congress has limited and withdrawn jurisdiction from federal courts as authorized by Article III of the Constitution, but liberals tend to disparage or ignore the numerous precedents.

Yet quietly the withdrawal of jurisdiction has become common and even pervasive. Congress, fed up with the harm caused by litigation, has passed many laws telling courts not to allow lawsuits on issues from gun manufacturing to illegal immigration to holding detainees at Guantanamo Bay.

In 2007 alone, over 100 federal courts cited, typically favorably, congressional removal of jurisdiction from them. Whatever the politicians and law professors may be saying about the withdrawal of jurisdiction from the courts, Congress has been doing it and the courts have been affirming it.

An example is the decision by the Court of Appeals for the Seventh Circuit in Pollack v. United States DOD, 2007 U.S. App. LEXIS 24352 (7th Cir. Oct. 18, 2007). A plaintiff filed suit complaining about how the Environmental Protection Agency (EPA) had not approved how the military and its private development partner were cleaning up a toxic waste site. The court conceded that the plaintiff had some good arguments under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. The court even agreed that plaintiff may be able to show that toxins were “known to have been released” on abutting land.

But Congress, perhaps fed up with litigation that interfered with or delayed cleanup efforts, had passed a law eliminating federal court jurisdiction over this type of claim. Section 113(h) of CERCLA, 42 U.S.C. § 9613(h), states that “No Federal Court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action” brought by a citizen “with regard to a removal where a remedial action is to be undertaken at the site.” Congress thereby prohibited challenges brought by citizens during a cleanup effort.

The Seventh Circuit candidly admitted that this amounts to a “blunt withdrawal of federal jurisdiction.” It then applied this “blunt” law unanimously to dismiss the lawsuit. This decision was written by Judge Ann Claire Williams, who had been elevated to the Seventh Circuit by President Bill Clinton.

In 2004, a unanimous U.S. Supreme Court ruled that courts lack jurisdiction to consider the refusal of the Bureau of Alcohol, Tobacco and Firearms (ATF) to process an application to possess for firearms by someone convicted of a felony in a foreign country. United States v. Bean, 537 U.S. 71 (2002).