As the debate rages about the power and wisdom of Congress to “strip” federal courts of jurisdiction to adjudicate particular controversial federal issues, the discussion either ignores another means of constricting the power and influence of the courts. That is the distinct act of “merits stripping.” Merits stripping eliminates, limits, or diminishes enforceable substantive rights and the merits of claims brought to enforce those rights. Merits strips diminish the amount of real-world actors and conduct subject to legal duties and protected by legal rights. Merits striping limits who can sue whom over what conduct. Merits strips can target statutory or constitutional rights and can be affected by the legislative, executive, or judicial departments, acting individually or in concert. A “strip” occurs whenever the scope of legal rights (and the legal duties those rights impose on others) falls below some baseline of preexisting law or normative preference.
Unfortunately, courts and commentators often conflate merits stripping with true jurisdiction stripping. But they are necessarily distinct concepts and such conflation confounds our ability to understand both. Three differences loom. First, while jurisdiction strips shift litigation out of federal court and into another forum (presumably state courts), merits strips eliminate enforceable rights altogether, in any forum. Second, the manner of litigating and resolving legal and factual issues will be different, depending on whether the “stripping enactment” being applied in court targets merits or jurisdiction; this distinction between merits stripping and jurisdiction stripping is a sub-category of the broader differences between judicial jurisdiction and substantive merits. Third, and most importantly, the structural and constitutional controversy surrounding the power to jurisdiction strip does not apply to merits stripping. Congress clearly has the power to redefine statutory rights, including narrowing those rights; courts clearly have the power to define constitutional rights, including narrowing those rights. One might disagree with the resulting scope of federal rights. But one cannot question the basic power to define those rights.
This article defines and examines multiple examples of merits stripping of federal statutory and constitutional rights. It then considers the differences between merits stripping and jurisdiction stripping and how those differences play out in court. Ultimately, distinguishing these concepts is essential to understanding the operation of federal law in the federal courts.
Date of this Version
Howard M. Wasserman, "Merits Stripping" (August 17, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1562.