25 Rev. Litig. 1

Jurisdictional Implications in the Reduced Funding of Lower Federal Courts

James P. George

This article argues that if Congress continues its now-decades-old practice of significant expansion of the scope and volume of the federal courts' dockets while continuing to squeeze judicial funding, Congress will lose the constitutional power to force state-courts litigants into federal court by means of removal jurisdiction and federal preemption. Adequate funding is an essential component of Congress's constitutional power to regulate the jurisdiction of lower federal courts. Congress's duty to fund the courts is based on the government's duty to furnish a forum, traceable to the Magna Carta, and applicable under our Constitution and case law to all three branches of government. While this duty is subject to limitations and exceptions, it cannot be entirely abrogated. The article traces the judicial budget crisis and contrasts it to Congress's remarkable expansion of federal jurisdiction over the past fifty years. Because civil litigants have a right to court access for valid claims, and because the United States Constitution contemplated state courts as the general jurisdiction forum, under-functioning federal courts cannot displace that constitutional design for general civil litigation in state courts. The article concludes that at some point short of full judicial defunding, when the priority of criminal trials significantly displaces the civil docket in a sufficient number of judicial districts, the federal courts will be constitutionally compelled to reject preemption claims and removed cases.


   This article argues two related propositions. First, if Congress were to eliminate all funding for lower federal courts, its constitutional authority to regulate those courts would become as meaningless as the empty courthouses. Second, Congress breaches its duty to furnish a forum at a point short of full defunding, and with that breach, Congress's regulatory power over private civil disputes otherwise litigable in state courts preempted and removable state law claims becomes constitutionally invalid. The first fact setting of full defunding is hypothetical; the second has been underway for several years.    I. The Defunding of Federal Courts For the past two decades, Congress has undermined the operation of federal courts with a combination of inadequate budget increases and remarkable expansions of federal jurisdiction. As explained in the following section, the budget shortfalls are greater than apparent on the face of the budget because of the unique, constitutionally mandated allocation of fixed costs and so called discretionary operating costs within the federal judiciary.    A. The Judicial Budget Federal courts are in an unprecedented funding crisis for which there is, as of now, no end in sight and no plausible solution. Funding shortages are not new to the judiciary Congress short funded the jury allocation in 1986, n1 and even declined funds for purely political reasons in its 1802 attempt to unseat Federalist judges appointed by President Adams. n2 But the current crisis, now several years underway, is of a magnitude that if unchecked may well redistribute the power balance among the government's three branches. The judiciary's most recent and most pointed response is Chief Justice Rehnquist's commissioning of a study that resulted in the Cost Containment Strategy for the Federal Judiciary: 2005 and Beyond, n3 a report that both quantifies and places in context the judiciary's crisis and provides a number of good faith contingency plans to deal with deteriorating support.    Tight funding from a tax cutting Congress is not the only problem. The fact of lagging funds is aggravated by the judiciary's unique distinction between mandatory or fixed costs and "discretionary" costs. Examples of fixed costs are salaries for judges and their immediate staffs (secretaries and judicial clerks) and rent paid to the General Services Administration. All other expenses are discretionary these include the salaries for all other employees (district clerks and their staffs, probation office, federal public defender), and the purchase of equipment. n4     Recent judicial budgets have been flat or modestly increased, n5 with Congress justifying its denials of needed new funds as the result of lean times for all government departments. n6 But the problem is growing worse more quickly than we might speculate from these modest budget increases. Fixed costs have risen at a far greater rate than the annual percentage increases, leaving a dwindling allotment for the so called discretionary costs. n7 In describing these allocations, it is important to understand that the term "discretionary" does not mean that these services can be eliminated; rather, it means the local district has discretion to allocate this money depending on local needs, while the local district does not have discretion in paying judicial salaries or rent to the Government Services Administration. The mandatory or fixed expenses will increasingly eat up the federal court budget while essential employees are terminated and essential court services cut.    Within these fixed expenses, two components must be distinguished judicial salaries and rent. Judges' salaries account for nine percent of the total budget, and studies show they are significantly underpaid. n8 Rent is the other major fixed cost component. That federal courts even pay rent will be a surprise to most lawyers, but they do. The Government Services Administration, that is, the executive branch, "owns " the buildings housing the federal courts. The GSA sets the rental rate and does so according to its own formula, n9 and as a result, rent has been the largest percentage of budget growth. n10 The resulting irony is that our federal courts are compromised because we are charging ourselves too much rent. To the extent that the executive branch in any given administration chooses to pursue an anti judicial agenda, the GSA's ability to set its rental rates would seem to undermine separation of powers. n11     In 2004, fifty nine percent of the federal judicial budget went to fixed costs and forty one percent to discretionary costs. n12 Assuming Congress continues in this budget pattern, the Cost Containment Report projects that fixed costs will require seventy two percent of the budget by 2009, leaving only twenty eight percent to cover the discretionary costs. n13 As noted above, discretionary costs may be erroneously viewed as unnecessary. The largest component is salaries for personnel outside the judges' chambers court clerks, public defenders, probationary staffs, and so on. But the federal courts are not overstocked with employees. In light of the federal docket's enormous growth, n14 it is significant to note that "over the past 10 years, the square footage occupied by the judiciary has doubled while personnel has grown by 23 percent ... ." n15 This disparity has put the judiciary behind and must be addressed in the next few years.     Personnel costs will grow by $ 953 million and staffing by about 5,000 over the next five years. Slightly less than two thirds of this amount is attributable to normal pay cost increases for existing staff. The remaining one third is driven by application of the judiciary's current work measurement formulas that would, if fully funded, restore clerks and probation and pretrial services staffing levels to full formula, provide staff for new senior and magistrate judges, and provide additional staff to clerks and probation and pretrial services offices to address future work load growth. n16    According to the Cost Containment Report, Congress and the President are unlikely to fund at anywhere near those levels. n17 The problem is exacerbated because the fat, if there ever was any, has already been cut, n18 and the budget starved judicial system is now eating away at its muscle: "when faced with a very contracted budget in FY 2004, and the threat of a hard freeze in FY 2005, courts were compelled to reduce their work force nationwide by 1,350 positions, or six percent." n19    These data are not mere statistical reports but have been making local news, though interestingly with little coverage in nationally circulated daily newspapers. n20 In 2004, the Detroit News reported that "Federal Court Cuts Hurt Michigan," explaining that, "Budget constraints have forced the U.S. District Court in Detroit to cut back on drug treatment for former inmates, grant dozens of convicts early release from probation and increase caseloads for probations officers." n21 The story reported that Detroit, having the eighth largest caseload in the United States with over 5,000 annual filings, would reduce its workforce twelve percent by the end of 2004, even with no further budget cuts. n22    More dramatically, the St. Louis Post Dispatch reported that federal courts in the Southern District of Illinois, already eleven percent below the prescribed staffing formula, were prepared to close one day a week in the face of budget cuts. n23 The Pittsburgh Post Gazette reported devastating consequences to the federal court system nationwide with a potential of a twenty percent layoff of clerks, probation officers and public defenders, quoting Judge John Heyburn II, budget chair of the Judicial Conference, that "the federal judiciary is at a crisis point." n24 The Recorder a San Francisco legal newspaper reported that "earlier this year, the Northern District's pretrial services office couldn't cover its phone bill," and explained how the court personnel were using their own cell phones instead. n25 In 2003, the Philadephia Inquirer reported that "federal judges in New Jersey are scrambling to cut costs after learning that their court system is expected to run out of money to pay jurors on civil trials before the fiscal year ends." n26 Reporting the same story, the New Jersey Record quoted Boston Judge William Young, another Judicial Conference member, as stating that this is "government not working in the very basic ways." n27    The Third Branch Newsletter provides the most thorough explanation of the crisis, quoting from the Judicial Conference Budget Committee chair's testimony before Congress and various interviews. The headline best illustrates the problem: "As Workload and Resources Head in Opposite Directions, Crisis Looms for Federal Courts." n28 But Legal Times offers the best opening summary: "Closing the federal courthouse one day a week. Putting civil trials on hold for a month. Granting felony offenders early release. Deferring payments to court appointed attorneys. Curtailing drug treatment. And firing staff." n29 That story goes on to report that federal courts in the District of Columbia, like those in the Southern District of Illinois, were contemplating one day a week closings in the face of a criminal trial docket that had doubled in one year coupled with a five percent decreased budget over the same period. n30 The Eastern District of Virginia, the story continued, faced similar budget cuts while taking on some of the largest of the terrorist cases.    For example, the case against Zacarias Moussaoui, the alleged "20th hijacker, " has generated more than 1,175 court filings. Every one of those must be handled, not only by the judge and her staff, but also by the clerk's office. "A complicated case like this is a drain on resources even in the best of years ... ." n31     Some may argue that these budget reductions are simply good business practice in tight budget times, and that as long as the judges preside, justice will be forthcoming in spite of greatly reduced staffing. The Cost Containment Report makes contrary projections, n32 and lawyers who depend on these essential court personnel require no proof of their role and value. Moreover, the notion that Congress is simply tightening its spending is contradicted by its leaders. In his retreat from comments deemed threatening to federal judges in regard to the Terry Schiavo case, House Majority Leader Tom DeLay clarified that his plans were entirely within the law: "The legislative branch has certain responsibilities and obligations given to us by the Constitution. We set the jurisdiction of the courts. We set up the courts. We can unset the courts. We have the power of the purse. We have oversight of how we spend their money." n33 On March 17, 2005, DeLay and Senate Majority Leader Bill Frist met privately with evangelical leaders to discuss ideas for reining in federal judges. One idea discussed in detail there was "using legislative tactics to withhold money from courts." n34 The Washington Post reported a few weeks later that "House Republican leaders plan to use budgetary, oversight and disciplinary authority to assert greater control over the federal courts before next year's elections." n35    B. The Collision of Reduced Funding and Expanded Jurisdiction Against this backdrop of severe funding cuts, consider Congress's phenomenal expansion of federal jurisdiction over the past three decades.        1. Congressional Power over Federal Court Jurisdiction The Constitution mandates the creation of a federal court system as one of three branches of a limited national government, the apex of a federal system in which states exercise more general governmental power and retain all authority not constitutionally designated for the national government. n36 The United States Constitution designed an interdependent system of three governmental branches whose functions are fairly distinct, but whose powers are interdependent in a checks and balances system designed to curtail power abuses by any branch. As a result, the judicial function is focused in one branch but the judicial power is spread among all three branches. This distribution of power is accomplished in three power dynamics, that is, instances of the judicial branch having its control over a specific function checked by one or both other branches. The first two power dynamics are well known; the third has been obscure but that may change.    The first judicial power dynamic is judicial selection, tenure and autonomy. Justices and judges appointed under Article III have lifetime tenure during good behavior, and salary protection to help insulate them from political and social pressure, n37 but must first be nominated by the president and then subjected to Senate confirmation or rejection. n38    The second judicial power dynamic is federal subject matter jurisdiction the Constitution provides only an interstitial sketch of the federal judiciary's limited jurisdiction and authorizes Congress to fill in the gaps by shaping Article III's boundaries as times and circumstances require. Congress has done this by giving further definition to federal questions and diversity claims, and acting on the implied boundaries of Article III by authorizing the joinder of related non federal claims and the removal of cases from state courts. n39 In turn, the federal judiciary regulates its own subject matter jurisdiction with two doctrines: the first is justiciability, focusing on the appropriateness of claims and claimants before the court, n40 and the second is judicial review, allowing courts to test the constitutionality of Congress's actions. n41 Although the courts have used their powers since at least Marbury v. Madison n42 in 1803, Congress's broad power to define federal judicial jurisdiction was little used until Franklin Roosevelt's administration, although the New Deal's expansion of federal power has not abated under other later, and more politically conservative, administrations.    A third judicial power dynamic untested up to now concerns the federal judiciary's budget, which is controlled by Congress, subject to presidential veto, n43 and not generally subject to judicial review. n44 But the court does have a check on severe underfunding that impairs vital court functions. As explained below, it is the power under the Due Process and other constitutional clauses to bar certain categories of claims those forcing plaintiffs out of state courts and into federal courts under the principle that the federal government has breached its duty to provide a forum. This is explained in this article's third section, following the discussion of the courts' expanded docket and the ancient common law duty to provide access to court.    2. Expanding Categories of Federal Jurisdiction At the same moment Congress is stripping funds from the federal courts, it is loading them up with new cases and new categories of cases. Supersizing has caught on in Congress's authorization of federal regulatory power and judicial jurisdiction, and in some areas the two expansions are not correlative. In addition to the astonishing growth of federal criminal jurisdiction, n45 Congress has expanded civil jurisdiction in recent years in two broad categories: first, by the preemption of private law issues formerly governed by state law, and second, by expanded use of minimal diversity jurisdiction to federalize additional state law claims not otherwise regulated by Congress.    a. Preemption Federal regulation of specific legal issues has always been thought necessary for the smooth workings of a federal system, just as a limited scope of federal encroachment has been thought, at least historically, to maintain an important decentralization of power on a range of issues, and a proper balance between the state and federal systems. These federalized legal issues are an exercise of both Congress's Article I powers to regulate matters such as interstate and foreign commerce, and of its Article III power to define federal questions for public and private legal disputes. Of course, the two are not always exercised together Congress may choose to regulate an Article I matter and leave enforcement to the federal agencies without creating a private remedy (although the object of the enforcement would almost always have the right to a federal forum to review the agency's action). n46    Congress has increasingly chosen to add the private remedy, and two examples in the past few decades are the federalization of fraud claims in many private actions (RICO claims) n47, and of contract suits for employee benefits (ERISA claims). n48 The Administrative Office began tracking both claims in fiscal year 1991, when there were 972 RICO claims and 9,843 ERISA claims. n49 In fiscal year 2004, the RICO claims dropped slightly to 777 while the ERISA claims rose to 11,421. n50 These are only two of many examples in the growing federalization of private remedies formerly governed by state law, and another set of numbers demonstrate the significance of that growth. In fiscal year 1977, federal question jurisdiction in private disputes, excluding disputes in which the United States is a party, accounted for 58,083 cases, or sixty four percent of the private civil docket, while diversity cases in that year accounted for 31,735 cases, or thirty five percent of the private civil docket. n51 In fiscal year 2004, there were 165,241 federal question claims in private disputes, or seventy one percent of the private civil docket, and 67,624 diversity claims, or twenty nine percent of the civil docket. n52 Put another way, between fiscal years 1977 and 2004, federal question claims in private disputes grew 284% and diversity claims grew 213%.    In addition to these former state law claims now crowding the federal docket, there is an important distinction between the RICO and ERISA claims. For RICO, the federal remedy creates concurrent jurisdiction for federal and state courts, and more important, does not preempt a state law fraud claim or the access to state courts for those disputes. n53 Plaintiffs bringing a RICO claim may choose between filing in state or federal court, but in choosing state court, face removal to federal court if all defendants elect to do so. Plaintiffs wanting to avoid federal court have a further choice and that is to avoid pleading the RICO claim, thus limiting the fraud claim to state law. ERISA claims are another matter. In choosing to regulate employee benefits, Congress also chose to preempt the field, leaving plaintiffs no choice but to litigate their contract and fiduciary duty claims in federal court. There is nothing inherently wrong with Congress's regulation of these areas or its creation of private remedies. But even if federal regulation is good as a normalization of the nation's laws and economy, Congress should fund the judicial function of its regulation.    b. Minimum Diversity Article III authorizes claims between various categories of parties from different states and countries, with the goal of offering a more neutral forum to nonresident parties. n54 From its creation in the Judiciary Act of 1789, the primary diversity statute has been read as requiring complete diversity, that is, all plaintiffs must be from a different state or country than all defendants. n55 In addition, Congress has always narrowed the diversity docket by imposing an amount in controversy threshold (unmentioned in Article III), starting with $ 500 in 1789 n56 and rising periodically to today's "exceeding $ 75,000" requirement. n57    But Article III's diversity authorization is broader, allowing for federal jurisdiction over the specified diversity categories as long as not all parties are from the same state. This is called minimal diversity and though little used in the past, its popularity is growing. In 1948, Congress enacted the interpleader statute to protect "stakeholders" (such as insurers and fiduciaries) from multiple findings of liability in different courts adjudicating related claims. The federal system already had an interpleader claim under Rule 22, but for non federal claims, it required complete diversity between all the claimants and the stakeholder and was little used. n58 Unlike Rule 22 interpleader, the statutory version requires only minimal diversity between the claimants, that is, all claimants could not be from the same state or country. The Administrative Office does not tally case filings under 1335, but from 1948 until now, LexisNexis lists approximately 854 opinions. n59    In 1968, Congress enacted the multidistrict litigation statute 28 U.S.C. 1407 allowing for the venue transfer of cases from multiple courts to a single district for consolidated pretrial proceedings. n60 The statute's purpose is efficient use of judicial resources in cases having common pretrial questions that can be determined more conveniently in a single court. The Judicial Panel on Multidistrict Litigation oversees the transfer requests, and in fiscal year 2004, the Panel considered 22,516 civil actions, granting transfer on 10,681 cases from ninety one district courts. n61 Since 1968, it has transferred 211,317 civil actions for consolidated pretrial proceedings, with 10,899 being ultimately remanded to the transferor district for trial, 389 reassigned within the transferee district, and 136,070 actions terminated in the transferee court. n62 These transfers demonstrate the efficiency of 1407 in cutting workload for the federal system as a whole, but any assessments of efficiency and economy must be offset by the costs. Many multidistrict cases concern subject matter that was not litigated in federal court until the New Deal (e.g., securities fraud) or later (air crashes, toxic torts) that is, 1407 has saved labor in areas that required no labor seventy five, or even forty years ago. In addition, a net gain in system wide efficiency does little to ease the burden suffered by the transferee court. These burdens have apparently been bearable when federal courts were adequately funded. They will amplify with funding cuts.    In the past four years, Congress's efforts to federalize state law tort claims has led to two new minimal diversity acts, both designed to compel new categories of plaintiffs out of state court and into federal court. The first was the Multiparty, Multiforum Jurisdiction Trial Act of 2001, authorizing a single forum for certain interstate disasters such as air crashes involving at least seventy five deaths. n63 The act also amends the removal statutes so that cases filed in various state courts may be compelled into federal court and then transferred to a single federal district court. n64 For cases meeting this minimal diversity formula in single accident settings, the act legislatively overrules Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, n65 which held that a court may not use the inconvenient forum transfer under 28 U.S.C. 1404 to retain a case for trial after obtaining the case under the multidistrict transfer provision of 28 U.S.C. 1407. The second recent minimal diversity expansion is the Class Action Fairness Act of 2005, which creates minimal diversity over class actions having at least $ 5 million in controversy and at least one class member with diverse citizenship from any defendant, providing further that the court may decline jurisdiction in certain specified settings deemed inconsistent with the act's purposes. n66 In addition to regulating settlements, n67 the Class Action Fairness Act of 2005 amends the general diversity statute n68 and adds a new removal statute n69 that when combined with existing venue rules will "allow corporate defendants to move most large class actions into federal court from state courts." n70 Case filing numbers are not yet available for the new class action law, but the Administrative Office of the United States Courts predicts that the act will "result in hundreds of additional class action cases being brought in federal court each year." n71 The Multi party/Multi forum law, narrowly focused on singular disasters, will produce far fewer filings but will have a significant docket impact on any district receiving a case.    3. The Federal Docket Civil and criminal case filings are predictably increasing in federal courts, owing both to Congress's expansion of federal jurisdiction and the growing American and global economy. In fiscal year 2004 (FY 2004), district court filings increased nine percent, with 281,338 civil filings (an 11.2% increase over FY 2003), and criminal filings remaining roughly even with 71,022 filings (up .5% over FY 2003). n72 Bankruptcy filings fell 2.6% this year, but remain high at 1,618,987, up 83.3% from FY 1995. n73 Although the new bankruptcy act President Bush signed on April 20, 2005, may lower filings over time, the immediate result will no doubt be a spike in filings to clear the proposed act's effective date, scheduled in the current bill for 180 days after the act's adoption. n74 For the courts of appeals, FY 2004 was the tenth consecutive year of increases with 62,762 appeals filed, up 3.1% over FY 2003 and up twenty five percent in the past decade. n75 More significantly, the appellate courts are slowing in case resolution, with cases pending at the end of FY 2004 up 14.3% from FY 2003. n76 Since 1990 the date of the most recent comprehensive federal judgeship bill no new federal appellate judgeships have been created even though the appeals docket has grown by forty six percent in that time, while in the same period, thirty four new federal district judgeships were created to meet a thirty nine percent docket increase. n77    In considering the current budget shortages, a more important picture emerges in examining the past twenty years. From 1960 to 2004, civil filings increased from 59,284 to 281,338 (475%) while the number of judges increased from 245 to 679 (277%). n78 From 1977 (the starting year for this table) to 2004, civil filings increased from 133,929 to 281,338 (210%); during this time federal question filings increased 284% (from 58,083 to 165,241) while diversity filings increased at the lesser rate of 213% (from 31,735 to 67,624), n79 showing not only growth, but that growth is more attributable to Congress's federalization of the law than it is to diversity litigation.    The criminal docket is an additional concern, not merely for overall court operations, but particularly for private civil litigants who will be bumped to the lowest priority by the Speedy Trial Act. n80 Although criminal cases make up only twenty percent of the case filings, n81 they consume disproportionate time compared with civil cases, many of which never have a court hearing. n82 The extra time provided for criminal trials and their priority on the docket has been amplified by Congress's rampant expansion of federal criminal jurisdiction, raising various concerns. The Criminal Justice Section of the American Bar Association formed a task force to examine the "astonishing" expansion of federal criminal law, n83 and in 1998 issued its report, The Federalization of Criminal Law, noting a "widespread concern about the number of new federal crimes being created annually by Congress," n84 and the "recent dramatic increase in the number and variety of federal crimes." n85 The report explains that in the first years following the Constitution's adoption in 1789, federal crimes were fewer than a dozen and dealt with offenses against the federal government itself such as "treason, bribery of federal officials, perjury in federal court, theft of government property, and revenue fraud." n86 Federal criminal jurisdiction expanded in the last third of the nineteenth century with the passage of federal mail fraud statutes linked to interstate commerce, and again with Prohibition in the early twentieth century. n87 The 1960s and 70s saw another expansion in the concern over organized crime and street gangs, which then "dramatically" expanded in the 1980s and 90s. As of 1998, of the federal crimes enacted since 1865, more than forty percent have been enacted since 1970, and more than twenty five percent from 1980 to 1996 (the year in which the date was compiled for the ABA study). n88 One tally the report failed to determine is the current number of federal crimes, explaining that "it may be impossible to determine exactly how many federal crimes could be prosecuted today ... ." n89    Looking at the most recent Congress at the time of the study, the report concludes that "all signs indicate that the federalization trend is growing, not slowing, in fact as well as perception ... . An estimated 1,000 bills dealing with criminal statutes were introduced in the most recent [105th] Congress." n90 Many of these crimes duplicate state laws and were enacted "without requests for their enactment from state or federal law enforcement officials." n91 Rather, the ABA Task Force was told explicitly by more than one source that many of these new federal laws are passed "not because federal prosecution of these crimes is necessary but because federal crime legislation in general is thought to be politically popular." n92    4. Technology and Other Changes Apart from the Congress's jurisdictional expansions, federal courts are also struggling with other recent laws that reflect changing times and technology. Courts are quickly moving to electronic document filing, a change which will save filing and storage space but will require frequent and expensive updates in equipment along with more highly trained clerical personnel to manage the system. Online filing brings several conveniences to the court, such as saved space and easier document retrieval, but those advantages are not entirely net gains. They are somewhat offset by the need for a different level of file maintenance, the need to employ more highly trained clerical personnel, and the cost of periodic equipment upgrades the old file cabinets and even the rolling shelve did not require regular replacement as computer systems now do, with technology costs consuming six percent of the Salaries and Expenses budget. n93 Perhaps the most onerous aspect of the new technology is Congress's decision for online posting in the e Government Act. n94 For several years now, federal courts have maintained web sites accessible by the public that included location and contact information for both the judges and the clerks, copies of local rules and standing orders, and any individual local rules a judge may impose. n95 As of April 16, 2005, the e Government Act adds to this the requirement that each federal district post online each court's docket information, the substance of all written opinions issued by each court, in a text searchable format, regardless of the publication designation, and all documents filed electronically by parties. n96 No data are available on the labor impact this will bring to the judges' and district clerks, but assuming the system is well maintained, the result will no doubt be an increase in the work formerly required in simply hole punching the nine by twelve document and clasping it in the file. This, too, will require more highly trained personnel, not to mention the burden it imposes on judges and their staffs to draft each order as though the world will be viewing and possibly citing it.    Another aspect of changing times is the growing need for both on site and off site security for judges in the wake of occasional violence and frequent threats. On March 15, 2005, the Judicial Conference of the United States passed a resolution calling on the Justice Department and the Marshall's Service to review security policies, and on Congress and the President to provide the necessary money. n97 Because of the paralyzing effect of threats against judges, it is certain that the security services will respond, and it is equally certain that more security will mean more cost. The money paid to the Marshall's Service (part of the Executive Branch) is not separately funded but like the rent comes out of the judiciary's budget. As a fixed cost, it will come out first. Unless Congress reverses its budget stripping agenda and fully accounts for the entirety of the increased security costs, the debit will be against the operating costs.    Other burdens arise when case filings surge in a particular area, caused by changes in the law such as the Class Action Fairness Act of 2005, n98 the Bankruptcy Abuse Reform and Consumer Protection Act of 2005, n99 scientific developments that expose toxins such as asbestos, n100 or corporate scandals resulting in increased securities fraud claims. n101 Crisis flows inescapably from these numbers and the resulting negative forecasts discussed in this section. Perhaps the negative projections will prove wrong, and instead of crisis, case filings will decline with tort reform, and electronic filing and file maintenance will require fewer personnel to manage the docket. No one is predicting such a panacea. The crisis may be most acute in the personnel numbers. Because of budget constraints, federal courts lost six percent of their workforce in fiscal year 2004, and have lost eighteen percent since fiscal year 2001. n102    Critics of Congress's short funding have proposed remedies in the form of the courts exercising an inherent power either to bill Congress or raise revenue. n103 Without critiquing them here, they are constitutionally doubtful at best. A more basic solution exists in the Fifth Amendment's Due Process Clause which, along with other doctrines, requires the government to furnish access to courts for justiciable disputes. Congress may short fund or even close federal courts, but if it does, our judicial system must default to the state courts, a possibility contemplated at the Constitutional Convention. The next section discusses the duty to furnish a forum (or to provide access to courts), its exceptions, and its application to all phases of government.    II. The Right of Court Access and the Corresponding Duty to Furnish a Forum Access to courts is the bedrock of the Anglo American system with guarantees dating back at least to the Magna Carta. The importance of a viable court system is readily apparent in several of the Magna Carta's clauses, with the barons having forced King John to guarantee not only the right to a jury trial n104 and the right to justice that was rendered rather than sold, n105 but also the availability of two levels of courts. Specifically, King John guaranteed a Common Pleas court system apart from the king's court n106 and provided for an available forum for certain claims in the counties where they arose. n107 As for the king's court, King John pledged that he or his Chief Justiciary would send two judges through each county four times a year who, along with locally elected knights, would hold court. If the courts could not be held for any reason, a sufficient number of assigned judges would hold over until the judicial matters were resolved. n108 A later section, the one pledging to rid the courts of corruption, has a second clause with a telling ring for the defunding problem: "To no one will We sell, to none will We deny or defer, right or justice." n109     Blackstone's Commentaries noted that the common law's three primary rights life, liberty and property would be declared in vain if not for the     subordinate right of every Englishman [to apply] to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty and property, courts of justice must at all times be open to the subject, and the law must be duly administered therein. n110     In struggling to define a new government with the Articles of Confederation, England's former American colonies at first rejected the role of a national judiciary in creating only a national legislature, leaving executive and judicial power to the states. n111 When the first American governmental structure seemed inadequate and a second Constitutional Convention was organized, delegates argued at length about the need for and the structure of a federal judiciary. n112 The result was a balance of power not only among the three federal branches, but between the federal and state systems as well, a delicate federalism underscored by the notion that courts of original jurisdiction would be available federal courts if Congress created them, and state courts if it did not.        A. Constitutional Bases for the Duty to Furnish a Forum    1. The Constitution's Distribution of Powers for the Judiciary and the Implicit Need for Courts of Original Jurisdiction State or Federal Improving on the Articles of Confederation, the United States Constitution created a dichotomous American judiciary which preserved the state courts' role as the primary judicial body and provided for federal court jurisdiction over a limited range of disputes. In addition to the powers retained by the states, the Constitution further designed a federal power balancing system in which the newly created federal judiciary would be held in check by the sharing of judicial appointment and removal power by the president and Congress, n113 and by Congress having the power to define federal subject matter jurisdiction within the broad borders set by Article III. n114    Article III outlines federal judicial jurisdiction in three ways. First, it limits federal jurisdiction to nine broad categories (including two interstitial categories for federal questions and diversity claims), n115 and then gives Congress the power to further define those interstitial categories. n116 Second, Article III requires Congress to create one Supreme Court but gives Congress discretion in creating lower federal courts, including the discretion to create none. n117 Third, Article III vests the Supreme Court with appellate jurisdiction over all nine categories of Article III cases, except for "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be party," over which the Supreme Court has original jurisdiction. n118 Article III thus limits the Supreme Court's power to appellate review for most Article III cases; it follows that some lower court must have original jurisdiction over those disputes, although those courts need not be federal courts. n119    Against this backdrop of Congressional power to define the lower federal courts' jurisdiction, does Congress have any duty to fund them? While it has the authority under Article I's spending clause and necessary and proper clause, neither Article I nor Article III require Congress to fund the lower courts in fact, Congress may abolish those lower courts. But it must be remembered that the Constitution also contemplates the availability of courts of original jurisdiction state or federal to hear categories of Article III cases and controversies. The Constitution's drafters saw a need for some federal judiciary, at least a Supreme Court, but contemplated that state courts would be the default forum both for general claims and federal questions. n120        2. Other Constitutional Doctrines Requiring Access to Courts and the Remedy for Breach The Constitution's implicit recognition of the right to a judicial forum goes further than Article III's outline of federal judicial jurisdiction. Case law based on five constitutional doctrines endorse some aspect of access to courts: the First Amendment's petition clause, n121 Fifth Amendment due process, n122 Fourteenth Amendment due process, n123 Fourteenth Amendment equal protection, n124 and the privileges and immunities clause from Article IV and the Fourteenth Amendment. n125    These cases create a claim with resulting remedies of injunctive relief against the court blocking law, and in some cases, money damages against government officials. Supporting language dates back to at least 1823 n126 and is summarized in an 1872 Supreme Court opinion:     The right to sue and defend in the courts is the alternative to force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. n127     As Justice Souter explained in Christopher v. Harbury, the cases fall into two areas those challenging a rule or regulation that impedes access to courts, and those seeking damages for the defendants' having undermined a plaintiff's case one either already litigated or about to be litigated. n128    The first line of cases in which a rule or regulation impeded court access established the rights of prisoners' access regarding appeals or post conviction relief. These included such underlying rights as eliminating requirements that habeas petitions be properly drawn n129 by the parole board's legal investigator, n130 the elimination of filing fees for habeas claims, n131 the availability of free trial transcripts for appeals, n132 the appointment of legal counsel for indigent defendants' appeals, n133 access to law books, n134 and related claims. n135 A similar line of holdings invokes the right to access to courts to strike down filing fee requirements for indigents in divorce cases n136 and for the record preparation fees in child custody cases. n137 The Supreme Court has twice used the doctrine to disallow state bar associations' efforts to prevent unions from using in house attorneys and union staffers to assist members with legal problems. n138    These cases involved single issue impediments to litigation such as filing fees, but some courthouse bars may overtly block the lawsuit in its entirety. Bars to litigation are legitimate in most instances, including limits on subject matter jurisdiction, time bars, and anti suit injunctions. But even these fundamental bars have exceptions. Subject matter jurisdiction limits have been held unconstitutional where they distinguish between residents and nonresidents in pursuing certain claims. n139 Limitations periods may not be arbitrary. n140 Anti suit injunctions between different jurisdictions must overcome a strong presumption favoring the exercise of jurisdiction. n141 Creative litigants have also used federal substantive law in attempts to block oncoming litigation, and have failed because of their opponents' First Amendment right to petition. Examples include the attempted use of antitrust laws to block lawsuits by a competitor seeking to enforce trucking regulations, n142 and unfair labor practice laws to block an employer's well founded lawsuit even though it was filed in retaliation for an employee exercising a protected right. n143    The second line of access to court cases involves obstruction of justice claims for tampering with or spoliation of evidence by government actors. Unlike the first category in which the goal is merely to remove an impediment to the suit, the access claims in this second category may be distinct grounds for recovery where the cover up undermined or prevented an earlier lawsuit. Bell v. City of Milwaukee n144 is an example of the years that can pass before the access claim is brought. A Milwaukee policeman shot and killed Daniel Bell in 1958. n145 When he admitted the crime years later, Thomas Grady claimed the gun accidentally discharged when he was pursuing the unarmed Bell. n146 But at the time, Grady and fellow officer Krause fabricated a story that Bell had attacked them with a knife. n147 Bell's father sued in 1959 and after a mistrial, settled for $ 1,800 and dismissed his claim. n148 Bell's father died in 1962, and in 1978, one of the officers confessed the cover up to the district attorney. n149 This later investigation led to Bell's siblings filing a new claim in 1979, for which a jury awarded $ 1,590,670 on various claims. n150 On appeal, defendants' objections included a challenge to the viability of plaintiffs' access to justice claim, which was founded on a federal civil rights statute governing obstruction of justice. n151 Rejecting defendants' argument that obstruction of justice required more than merely impeding a private cause of action, the court held that "to deny such access defendants need not literally bar the courthouse door or attack plaintiffs' witnesses." n152    Ryland v. Shapiro was a claim for Lavonna Ryland's death, initially ruled a suicide. n153 Her parents were skeptical and pushed further investigation. She had been shot at the home of Alfred Shapiro, an assistant district attorney who was later convicted of her murder, although on appeal that conviction was set aside for insufficient evidence. Nonetheless, Ryland's parents sued Shapiro and two other prosecutors, alleging that after shooting her, Shapiro had telephoned assistant district attorney Edward Roberts and asked him to come to Shapiro's home. Afterward, Roberts and district attorney Edwin Ware prevented a full investigation into the causes of Ryland's death by cancelling her autopsy, attempting to persuade local doctors and coroners to sign death certificate reporting this as a suicide, and telling the police it was a suicide. n154 Ryland's parents filed a civil rights claim against Shapiro, Roberts and Ware, alleging that their cover up interfered with the parents' access to the state courts with a wrongful death claim against Shapiro. n155 The federal district court dismissed but the Fifth Circuit reversed, finding that "the right of access to the courts is basic to our system of government, and it is well established today that it is one of the fundamental rights protected by the Constitution." n156 Looking to precedent, the court continued that "[a] mere formal right of access to the courts does not pass Constitutional muster. Courts have required that the access be "adequate, effective, and meaningful.'" n157 Finding both a right of access to courts and that the plaintiffs' right here had been abridged, the Fifth Circuit reversed the dismissal and remanded the case for consideration on the merits. n158    In a similar claim, Erin Delew died when her bicycle was struck by Janet Wagner, who was initially exonerated in an investigation by the Las Vegas police and the Nevada Highway Patrol. n159 Delew's husband and parents rejected this and sued both Wagner and several officials. Specifically, the plaintiffs alleged that Wagner was driving thirty percent over the speed limit, that she had been drinking and was allowed to leave the accident scene without being tested, that this was done because Wagner was married to a Las Vegas police officer, and that the subsequent investigation was a cover up of Wagner's negligent actions. The federal trial court dismissed but the Ninth Circuit reversed, holding that "the right of access to courts is a fundamental right protected by the Constitution" n160 and more specifically that "the Constitution guarantees plaintiffs the right of meaningful access to the courts, the denial of which is established where a party engages in pre filing actions which effectively covers up evidence and actually renders any state court remedies ineffective." n161    Another theory, apparently untested, is that the Seventh Amendment right to jury trial compels the government to furnish both a forum and a jury. None of the cases arguing for basic access to courts have relied on this premise, but a 1988 law review article examined this question in light of Congress's 1986 low budgeting of the judiciary and the resulting Judicial Conference order suspending jury trials from June 16 through September 30, 1986. n162 That order led to the Ninth Circuit's holding in Armster v. United States that a three month delay in the right to a jury trial was unconstitutional. n163 This set the stage for the 1988 law review article's argument that if Congress failed to budget the courts sufficiently to pay the costs of jury trials, it would be in breach of an affirmative duty to underwrite the jury trial guaranty, justifying the courts to empanel a jury and send the bill to Congress. n164    The strongest discussion endorsing a right to court access comes from a case denying a forum for a habeas petition. In Johnson v. Eisentrager, German nationals were captured by American military forces in China after World War II hostilities had ceased. n165 They were accused of war crimes n166 and transported to Germany for detention awaiting a military trial. The accused filed habeas petitions in the Southern District of New York, claiming innocence and seeking trials in the United States rather than military tribunals in Germany. The district court dismissed for lack of jurisdiction over the foreign held plaintiffs, but the Second Circuit Court of Appeals reversed with strong language stating that if Congress had intended to restrict habeas relief to prisoners held within the United States, such restrictions violated the right to court access. n167 The Supreme Court reversed the Second Circuit and upheld the trial court's theory that the Constitution's protections, though covering aliens in many situations, had territorial limitations that fell short of these claims. n168 But in so holding, the Court strongly underscored the ancient right of court access for most claimants. It first noted that the law both common law and international law had originally held that enemy aliens (citizens of enemy countries) historically could not bring civil claims, but that the United States had grown beyond this by 1813 when Joseph Kent upheld the right of a British national residing in the United States to bring a claim for a debt contracted before the War of 1812. n169 Kent held that "[a] lawful residence implies protection, and a capacity to sue and be sued." n170 The Johnson court then quoted from a then recent Supreme Court holding reaffirming Kent:     The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war effort or give aid to the enemy. This may be taken as the sound principle of the common law today. n171     Johnson then distinguished the group who lacked such access nonresident enemy aliens who remained in service to the hostile country. n172 Johnson's importance is not only in recognizing this broad right of court access, extending to citizens and aliens except those nonresident aliens who were nationals of an enemy country, but in characterizing the right as one of common law, ancient and modern. That is, the ancient common law guaranteed citizens access to courts, and by 1813 the American common law had extended that access to resident aliens, including citizens of enemy countries if such access would not aid the enemy. n173 In addition to Johnson's strong support for court access for most claimants, three dissenters led by Hugo Black argued that the Court of Appeals was right and that even these nonresident enemy aliens (who had not been combatants), being detained by the United States military, had a right to a habeas hearing in a federal court in the United States. n174    The constitutional claim for access to courts cannot be doubted even cases holding that the access right was not abridged have nonetheless affirmed its existence. n175 In addition to these five constitutional doctrines and their caselaw endorsements, the Ninth and Tenth Amendments reserve all rights not delineated within the Constitution's limited government framework to the states and the people. n176 The doctrine of reserved rights has never been litigated in this regard, or perhaps even proposed as supporting access to state courts. But we have never faced the prospect of expanding federal jurisdiction over state law claims being removed to federal courts with dwindling resources. To the extent that state laws or the common law guarantee access to courts, Congress's failure to fund federal courts (or any other federal failure) returns this function to the state courts unless, unthinkably, the right of court access can be preempted and then ignored.    B. Forum Availability as a Duty Imposed on Three Branches of Government English antecedents and the constitutional doctrines discussed above impose access to court duties on all three branches of the United States government, with some of the doctrines also applying to state governments. Chief Justice Marshall stated the government wide duty in Marbury v. Madison:     The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of the government is to afford that protection ... . [The] government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. n177     Marshall made the observation quoted above as a premise to fashioning a remedy for Marbury in response to President Jefferson's withdrawal of a government appointment. Marbury lost, however, because he had mistakenly sought an original mandamus in the Supreme Court the wrong forum and thus had his claim dismissed for lack of original jurisdiction. n178 The case is nonetheless a milestone of American jurisprudence for its establishment of the Court's inherent power to infer a remedy in the absence of an express cause of action, as well as the president's susceptibility to judicial review. But Marshall's quote reaches further than the facts in Marbury, recognizing the government's broader duty to "afford that protection" that is, the assessment of facts in light of the law, a primarily judicial function since the time of King John. n179    Marshall's edict that a legal right implies a remedy has been somewhat curtailed since the time of Marbury. Legislatures, for example, may create a public right for the accurate labeling of pharmaceuticals but limit enforcement to government agencies and withhold a private remedy, as Congress did in Merrell Dow. n180 It is important to note, however, that the federal pharmaceutical standards at issue in Merrell Dow did not displace plaintiffs' right to seek damages in state court (or in a federal diversity claim) for common law negligence. Plaintiffs thus retained their day in court and a remedy, but without the extra claim invented by Congress a claim for a private right that did not exist under the federal regulatory scheme.    The fact that modern regulatory law can create public rights without creating private remedies does not detract in the least from Marbury's express notion that the breach of a common law right entails a remedy, and the necessary implication that the court, through judicial review, is the means of obtaining that remedy. Without a right of court access for appropriate claims, Marbury's fundamental equation fails.    Apart from Marbury, the doctrine is more fully developed in a number of cases arising in various fact settings that illustrate the right of court access, the government's corresponding duties, and the exceptions. Although this article argues that a breach of Congress's duty is underway, it is important to establish first the duty of court access as applicable to all three branches it may have exceptions in narrow settings as explained in each section below, but the duty is pervasive.        1. The Court's Duty to Exercise Jurisdiction In a case requiring state courts to hear federal claims, the Supreme Court has recognized "the common fealty of all courts, both state and national, to both state and national constitutions, and the duty resting upon them, when it [is] within the scope of their authority, to protect and enforce rights lawfully created ... ." n181 Apart from categorical endorsements for court access such as this, the court's duty is best explained through its exceptions, with emphatic explanations of the strong presumption favoring jurisdiction and the narrowness of the exception. The cases are based on a variety of distinct doctrines involving courts declining or deferring jurisdiction in the face of such matters as significant inconvenience to a litigant, wasteful parallel litigation, or federalism and other policy conflicts between jurisdictions. The conflicts arise in multiple settings, between state and federal courts, between sister state courts, and between American and foreign courts. Standing against these remedies of dismissal or deferral is a strong presumption in some cases a requirement that the court exercise jurisdiction. The non exercise of jurisdiction is generally premised on the availability of another suitable forum.    a. Declining Cases for Convenience and Efficiency Significant inconvenience to litigants and the waste of parallel lawsuits are both grounds for declining jurisdiction under a variety of multi faceted tests. Because all applicable doctrines require that an alternative forum be available, due process and the right of court access are not implicated. Forum non conveniens is a common ground for declining otherwise valid jurisdiction. There are two categories: venue transfers within the same jurisdiction, and the interjurisdictional forum switch requiring dismissal in the first forum for refiling in a distinct second forum. In the intrajurisdictional venue transfer, forum availability is a given because the case is merely transferred within the same system without dismissal. That safeguard is missing for the interjurisdictional transfer because of dismissal and the need to obtain jurisdiction in the second forum. For the cross jurisdictional cases (and the domestic ones as well), a strong presumption favors plaintiff's choice of forum, n182 and plaintiff's court access is not threatened because the dismissal is premised on the availability of another suitable forum. n183 To ensure court access, the first forum normally grants a conditional dismissal based on defendant's agreement to refiling in the second forum, to litigate on the merits, and to waive any objections to jurisdiction, venue, time limitations or other procedural bars. n184 Throughout the law of inconvenient forum from the presumption favoring plaintiff's initial forum choice to the safeguards for movement to the second forum the right to court access is a prime concern, at least in the required court analysis. However, so as not to overstate the protection for plaintiffs, the law of forum non conveniens does not require an equal second forum, only an adequate one. Plaintiff may face a less favorable law or different procedural requirements. n185 To the extent that plaintiffs fail to re file in the second forum, the doctrine may be seen as denying meaningful court access. On the other hand, defendants have a right to meaningful court access as well. Assuming that courts grant forum non conveniens dismissals only in cases posing significant burdens on the defendant a limit the doctrine contemplates but no doubt exceeds in many cases its unavailability could mean equal fairness in many cases.    Parallel litigation is a second category of cases justifying the declining of jurisdiction. In dealing with parallel cases, a court has four choices: (1) allow both cases to proceed with the first to judgment having whatever preclusive effect it may have; (2) stay its own case for possible litigation later on any claims surviving preclusion; (3) dismiss its own case; or (4) enjoin a party from litigating in the other forum. n186 Parallel litigation, at least in theory, has no court access problem; to the contrary, the parties have access to two or more courts. But the law surrounding parallel litigation nonetheless illustrates the importance of court access. For example, the inadequacy of the other forum is a valid objection to a stay or dismissal in the desired forum, n187 although this ground is less clear for anti suit injunctions. n188 As with inconvenient forum, in most settings a presumption favors the first filing plaintiff's choice of forum, although other factors may overcome that presumption. n189 The Colorado River doctrine dealing with parallel litigation between federal and state courts illustrates this well. In stating the strong presumption against staying a federal lawsuit in deference to a first filed state court case, the Supreme Court noted a "virtually unflagging obligation of the federal courts to exercise jurisdiction given them." n190 The Court drew this presumption from three cases starting with Chief Justice Marshall's statement in Cohens v. Virginia "It is most true that this Court will not take jurisdiction if it should not: but is equally true, that it must take jurisdiction if it should." n191    b. Declining Cases Based on Federalism Abstaining from interference with state interests is yet another grounds for declining jurisdiction and thereby denying plaintiff's choice of forum. The Pullman doctrine is a good example, derived from a case in which the Texas Railroad Commission had ordered that a conductor be stationed on all trains having a Pullman sleeping car. n192 In the late 1930s, the railroads and the Pullman Company had a practice of assigning one porter (a lower rank than conductor) to each Pullman car, with one conductor in charge of all passenger cars for the train. n193 But many trains in rural Texas had only one passenger car, a Pullman sleeper. n194 Rather than staff it with two employees a conductor and a porter the Pullman Company merely had a porter in charge. n195 At the time, all conductors were white and all porters were black. n196 The conductors' union obtained the Railroad Commission's order requiring a conductor, which, as a matter of economics displaced the porters. n197 The Pullman Company and the railroads sued in federal court to enjoin the Commission from enforcing the order, and the porters intervened to raise Fourteenth Amendment equal protection objections. n198 Plaintiffs lost in front of a three judge district court, leading to a direct appeal to the Supreme Court. n199 A unanimous Court reversed in Justice Frankfurter's classic opinion which noted that this dispute, unlitigated in Texas, was based on an order by a state agency whose delegated power was broad and ambiguous. n200 Citing the need to avoid constitutional encounters between state and federal law, the Court reasoned that if the Commission's order were held invalid under Texas law, the constitutional issue would be moot. n201 The Court remanded the case with orders that it be stayed and that the parties seek a resolution in Texas state courts. n202    Pullman can be hastily read as requiring exhaustion of remedies for constitutional challenges to state law. This reading is inaccurate because the Court emphasized that the abstention requirement applied, under these facts, only because this was a question of first impression under Texas law. The resulting abstention rule, which varies slightly among the circuits, is that federal courts should temporarily abstain from questioning the constitutionality of ambiguous state laws that have not been litigated in that state's courts. n203 Cases falling short of these requirements must remain in federal court.    Pullman abstention is a valid exercise of federalism, but the opinion left unresolved the potential unfairness of denying plaintiff a properly invoked federal forum for a constitutional question. Of course, Pullman stays do not deny court access as such. To the contrary, two courts are made available, with the state court having jurisdiction equal to the federal court's to litigate the constitutional claim. But does plaintiff have a right to the federal forum by filing there first? And upon losing the constitutional claim in state court, should plaintiff be precluded from pursuing that claim in the federal court where it remains stayed? The answer to both questions is yes, plaintiff has a right to federal court access by filing there first. To guarantee access to federal courts after a Pullman abstention, in 1964 the Supreme Court created the England reservation. It provides that if Pullman abstention requires a party to resort to state courts, the party may either submit all issues to the state court, or instead notify the state court of the constitutional issue and reserve them for later litigation in the stayed federal case, if necessary. n204 The Court's language in England underscores the plaintiff's right to access to a federal forum, ""When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction ... . The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.'" n205    Some abstention doctrines Burford, for example allow dismissal of the federal case with no possibility of returning to federal court. n206 There is no denial of court access in these cases because the declining of federal jurisdiction is premised on the appropriateness of a state forum, and according to Burford, the inappropriateness of the federal forum in some cases. Burford was a federal diversity action seeking an injunction against the enforcement of a Texas state agency decision regarding an oil drilling permit. The oil permits were often contentiously litigated and the applicable law had considerable discretion based on the variety of geological and mineral ownership settings that might occur. To avoid a haphazard development of precedent in a complicated regulatory area, Texas had established a centralized review system in the state court of appeals in Austin, a system which had been undermined by litigants' forum shopping in federal courts. n207 The Supreme Court with five votes ruled that federal courts should decline diversity jurisdiction in a matter involving a complex area of state regulatory law with a centralized state court review system, and in doing so, paid little textual attention to any presumption favoring the exercise of federal litigation. n208 The court access argument was not ignored, however, and came in a strongly worded dissent from Justice Frankfurter, joined by three others. n209 Among other differences with the majority, Frankfurter argued that "the duty of the judiciary is to exercise the jurisdiction which Congress has conferred." n210 As discussed later in this article, the fact that Frankfurter's argument is couched in terms of separation of powers should not compel the conclusion that it is a duty owed only to Congress. n211 Although the Burford majority did not acknowledge a presumption favoring the exercise of jurisdiction, since then the Supreme Court has in Quackenbush v. Allstate Insurance Company. n212    Two other abstention doctrines jointly restrict federal courts from enjoining pending state litigation. The Younger/Pennzoil doctrine requires that federal anti suit injunctions against pending state litigation satisfy strict equitable injunction standards, that is, plaintiff must establish the three elements of bad faith, irreparable harm, and no adequate remedy at law. n213 Addressing different concerns in the same setting, the Anti Injunction Act limits federal anti suit injunctions against pending state litigation to three narrow exceptions: where injunctions are congressionally authorized, where necessary in aid of the federal court's in rem jurisdiction, and where necessary to protect or enforce a federal court's final judgment. n214 While the other abstention doctrines primarily protect state federal relations, both of these anti injunction doctrines demonstrate the irony of denying or restricting the use of a federal forum in order to protect a party's prior access to a state forum, and the exceptions for each come into play to protect another party's superior right to a federal forum.    The act of state doctrine, sometimes labeled abstention, permits a state or federal court to defer to the sovereign acts of foreign governments done within their territories. It is better described as a choice of law rule as the Supreme Court did in W.S. Kirkpatrick & Co. v. Environmental Tectronics Corp. International. n215 In Kirkpatrick, a losing bidder for a Nigerian government contract sued the winning bidder, alleging bribery, to which the defendant raised an act of state defense, that is, the money paid to the Nigerian government was necessarily valid as part of a sovereign act in awarding the contract. Rejecting the abstention label and finding the act of state doctrine inapplicable for lack of a sovereign act, the unanimous Court concluded with the strong presumption favoring the exercise of jurisdiction:     The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. n216    c. Declining Removed Cases and Supplemental Claims Removal and supplemental jurisdiction provide another ground for federal courts to decline jurisdiction. Both jurisdictional categories allow for the removal of non federal claims (arising under state or foreign law) lacking independent jurisdiction bases in federal court; both have statutory grounds for remanding the dispute to state court if all federal claims have been resolved, or if the state law issues predominate or are novel or complex. n217 As with abstention, these denials of a federal forum are based in every instance on the availability and appropriateness of an alternative state forum. In a larger perspective, removal and supplemental jurisdiction are primary examples of the government fulfilling its duty to provide a forum a federal forum for disputes with jurisdictionally mixed state and federal claims, and taking the extra step to ensure that the federal forum is denied only in the few instances where a state forum is more appropriate.    d. Declining Cases for Local Public Policy Reasons The cases discussed thus far in this section involve declining jurisdiction in deference to another jurisdiction's interests. The opposite scenario favoring local interests can also lead to the suppression of litigation where the forum refuses to litigate nonresidents' claims, or claims which violate local public policy. Although such exclusions are valid in many cases, state courts (and the state legislatures regulating them) are subject to the same court access requirements as the federal government under due process, equal protection, and the right to petition. n218 In addition to sharing the requirements of the federal government, state courts are subject to the privileges and immunities clause requiring them to treat citizens of sister states as their own regarding court access, n219 by full faith and credit requiring state courts to furnish a forum not only for judgment enforcement purposes n220 but also to litigate claims arising under sister states' laws, n221 and by the supremacy clause requiring state courts to accept jurisdiction over federal law claims. n222 In addition, forty states have constitutional provisions which equal or exceed the federal doctrines discussed in this article. n223    e. Supreme Court Declinations of Original Jurisdiction The Supreme Court has occasionally declined jurisdiction, sometimes in deference to lower courts having concurrent jurisdiction, and in rare instances where no other courts existed because of the Supreme Court 's exclusive jurisdiction. Ohio v. Wyandotte Chemicals Corporation is a leading example of declining concurrent original jurisdiction. n224 Wyandotte concerned an Ohio nuisance abatement complaint regarding Wyandotte and other companies who were dumping mercury into Lake Erie. n225 The Court noted its obvious jurisdiction, based on the claim by a State against corporations from other states and Canada, n226 before declining on the grounds that the issue was complex and required the expertise of fact finding bodies courts and agencies that the Supreme Court could not well provide within its experience as a mostly appellate review court. But the Court did not lightly decline the case, even though its jurisdiction was concurrent with lower courts. Rather, the Court began with the "time honored maxim of the Anglo American common law tradition that a court possessed of jurisdiction generally must exercise it." n227 The Court then developed a two part test for declining its original/concurrent jurisdiction:     (1) declination of jurisdiction would not disserve any of the principal policies underlying the Article III jurisdictional grant and (2) the reasons of practical wisdom that persuade us that this Court is an inappropriate forum are consistent with the proposition that our discretion is legitimated by its use to keep this aspect of this Court's functions attuned to its other responsibilities. n228 Wyandotte declines jurisdiction for neither inconvenient forum nor parallel litigation reasons, but the principle of efficiency is similar. As with the other two, plaintiffs were merely denied their forum of choice, but not denied a forum in the absolute. n229    The Court's declinations of exclusive original jurisdiction limited to controversies between States n230 are more provoking at first blush but are justified on the facts. In most instances, alternative forums were available in parallel actions not involving all the state parties. In Arizona v. New Mexico, for example, the Court declined exclusive jurisdiction in an interstate tax case based on identical issues raised in a parallel case still in litigation in a lower court. n231 It did the same in Louisiana v. Mississippi, a state boundary case having issues identical to those in parallel private litigation in lower courts, where the states were somewhat nominal parties. n232 California v. West Virginia may be more difficult to justify legally but is nonetheless a sensible rejection of jurisdiction. n233 The action arose from a contract dispute regarding "athletic contests between two state universities." n234 Without opinion, the Court denied leave to file the original complaint. Justice Stevens dissented and pointed out that even though the states' failure to resolve this "does not speak well for the statesmanship of either party," it did not justify the rejection of the Court's exclusive jurisdiction in a breach of contract claim. n235 As to both sets of jurisdictional refusals concurrent and exclusive scholars have various opinions. n236 But whether the Supreme Court is justified in these declinations or not, it is important to note that in all these examples, California v. West Virginia is the only case in which the parties might be left without a forum, and even there it is likely that the universities could bring local actions without involving the states.    f. Alternative Doctrinal Sources for Forum Declinations Separation of Powers and other Overlays of Due Process In this section, discussing the court's duty to exercise its jurisdiction, case law establishes the duty as one owed to plaintiff based on due process and other constitutional and common law doctrines. Some cases, along with scholarly analysis, have argued for the same duty but attributed it to separation of powers, thus creating a duty the courts owe to Congress. Professor Redish, for example, has argued that the judge made abstention doctrines Pullman, Burford, Colorado River are an unconstitutional usurpation of Congress's legislative role in deciding how and by whom federal laws will be implemented and enforced. n237 Professor Shapiro has responded that within the Anglo American structure, jurisdictional grants include an inherent discretion to decline jurisdiction in any number of settings, including those covered by Pullman, Burford, and Colorado River. n238 Redish thus argues that the duty to exercise jurisdiction flows from the legislative authorization and that declining jurisdiction puts the court in an inappropriate policy making role, n239 while Shapiro argues that jurisdiction is power but not duty, to be exercised with reasonable discretion. n240 My criticism of the arguments by Professors Redish and Shapiro may be misplaced because neither had in mind the question I am posing may Congress economically impair the federal courts and still retain its full authority to regulate jurisdiction? My rebuttal is nonetheless necessary because of both articles' persuasive and well documented discussion of discretionary abstention, a phenomenon in which basic court access was not at issue. The Redish/Shapiro discussion was whether the plaintiff should be in state or federal court, not whether plaintiff could be in court at all, a question raising different concerns and different doctrinal sources.    Separation of powers is no doubt at issue when a federal judge declines otherwise valid jurisdiction in, for example, a civil rights case. On this point, either Redish (favoring federal litigation) or Shapiro (favoring discretionary abstention) may be correct depending on how one defines the court 's authority to make policy when federalism clashes with separation of powers. But however appropriate it is to assess Pullman in light of separation of powers, to leave the discussion there misses a significant point. The President and Congress have significant discretion in exercising their respective jurisdictions. The President has a primary power over foreign policy but wide discretion in using it. Congress may regulate interstate commerce but has discretion as to the breadth and content of its regulations. Courts are different. Although judges have discretion in any number of their functions, they have very little discretion in choosing to exercise or decline jurisdiction, limited to the narrow exceptions explained in this article, which generally involve the availability of another forum. What explains the difference between the widely discretionary exercise of executive and legislative jurisdiction on the one hand, and the strong presumption favoring the exercise of judicial jurisdiction on the other? The answer is due process, not only from the Constitution, but from English common law with lineage back to Runymede and American judicial language reinforcing the doctrine for over two hundred years. n241 Separation of powers compels the courts to heed jurisdictional boundaries set by Congress. But separation of powers does not, by itself, compel any duty to exercise jurisdiction in any given case any more than the Constitution's Article I compels Congress to exercise all jurisdiction granted there. Due process does compel courts to act, subject to exceptions as described in this article.    It is hardly surprising that scholarly analysis of the court access duty has focused on doctrines such as separation of powers and bypassed due process. n242 Due process is unlikely to be implicated where a federal court abstains in deference to a state court. Even with occasional examples of jurisdiction stripping federal statutes, n243 few fact settings over the last two American centuries have raised court access issues on the level that the current funding shortages may soon do. Court access for rank and file litigants in American courts has not been a due process issue n244 other than for disenfranchised groups (even due process has a far from perfect history) and in isolated cases raising the exceptions discussed here.        2. The Legislature's Duty to Furnish a Forum In spite of these cases' addressing the judiciary's duty to exercise jurisdiction, the duty does not flow from the judiciary as such, but from the government's duty to furnish a forum. Along with Professor Hart's iconic dialogue, n245 a number of cases offer insight into Congress and state legislatures' attempt to limit judicial review. The starting point once again is Marbury v. Madison, a dispute initially between the hopeful appointee Marbury and incoming President Jefferson. n246 It quickly degenerated into a showdown between Chief Justice Marshall and Congress, which repealed the Circuit Court Act of 1801 and then impeached (but failed to convict) Justice Chase. n247 Marshall and judicial review won.    Two Reconstruction cases provide a foundation for constitutional constraints on Congress's power to limit the judiciary. Both were habeas cases, and as with Marbury, the Court's holding was limited to jurisdictional issues. But as with Marbury, the concepts of the right of court access and the government's duty to furnish it could not have been more central to the jurisdictional issues being considered. Congress won a round in Ex parte McCardle's dismissal for lack of jurisdiction. n248 The dismissal was based on Congress's having repealed the Supreme Court's appellate jurisdiction to review the 1867 habeas statute under which McCardle had filed, the repeal occurring during the pendency of McCardle's case in Congress's effort to keep the southern newspaper editor in jail for writing against Reconstruction. n249 The Court held specifically that Congress had the power to regulate and thus limit the Supreme Court's appellate jurisdiction, but further held that the Court retained appellate jurisdiction over habeas petitions other than those brought under the 1867 Act. n250    In the same Supreme Court term, Ex parte Yerger n251 reinforced this presumption favoring jurisdiction. Yerger was accused of murder and though he was a civilian, was in the custody of the Army and faced non jury trial in a military tribunal. Unlike McCardle, Yerger filed his habeas petition under earlier statutes. n252 After the federal circuit court in Mississippi denied his petition, Yerger was in the same position as McCardle, needing a writ of habeas corpus from the Supreme Court, albeit one issued in appellate review. The Court confirmed McCardle's holding that the 1868 Act repealing the Court's appellate jurisdiction over habeas petitions under the 1867 Act did not affect review of petitions under prior habeas statutes. n253 Yerger could have been limited to an exercise of statutory interpretation finding as it did that the 1868 repeal was limited to its express language but the Court took care to emphasize that to hold otherwise would mean that Congress could repeal "the whole appellate jurisdiction of this Court, in cases of habeas corpus, conferred by the Constitution, recognized by law, and exercised from the foundation of the government ... ." n254 This is not to say that Congress lacks the power to regulate the Supreme Court's appellate jurisdiction. It is to say that the Court will not relinquish such jurisdiction absent Congress's clear intent, n255 a position based in part on Yerger's right to a forum. Tracing the writ from England's Habeas Corpus Act of Mary 27, 1679, through its adoption in the American Constitution, the Court noted that "the terms of this provision necessarily imply judicial action. In England, all the higher courts were open to applicants for the writ, and it is hardly supposable that, under the new [United States] government, founded on more liberal ideas and principles, any court would be, intentionally, closed to them." n256 Additional right of access language appears in the Court's observation that in cases like Yerger's, where the writ has been refused by a lower court and must come from an appellate court, "however unlawful his imprisonment may be in fact, is wholly without remedy unless it be found in the appellate jurisdiction of this court." n257    Most cases directly addressing Congress's forum furnishing duty fall under due process. They arise in multiple fact settings for various underlying injuries, but rather than explaining them topically, the doctrine's evolution is best expressed chronologically. In the landmark Yakus v. United States, n258 the Supreme Court upheld a federal law which limited review of criminal convictions under wartime price control laws to an administrative tribunal, with appellate review in the Supreme Court. In holding that Congress was not required to provide original jurisdiction in an Article III court, the Court held that "there is no constitutional requirement that that test be made in one tribunal rather than in another, so long as there is an opportunity to be heard and for judicial review which satisfies the demands of due process." n259 Battaglia v. General Motors Corporation n260 was a claim challenging the constitutionality of Congress's repeal of plaintiff's rights to overtime pay. Plaintiffs ultimately lost on the merits, but in responding to defendant General Motors's argument that Congress also removed the court's ability to review the constitutionality of this repeal, the court found that:     the exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation. n261     A German prisoner of war filed a habeas corpus petition in Eisentrager v. Forrestal. n262 The district court dismissed for lack of subject matter jurisdiction, finding that Congress had not included claims by prisoners held outside the United States in the habeas statute. The Second Circuit reversed, holding that the Constitution forbids Congress from withholding a federal forum for habeas corpus for federal prisoners. n263 In reaching its conclusion, the court considered the argument that a lower federal court's power was limited to that granted by Congress, and then narrowed the hypothesis to Congress's omitting jurisdiction over a constitutional claim regarding federal confinement. Because state courts lack power to review federal confinement, to conclude that Congress could strip the power from lower federal courts would be to say that Congress could legislate "outside the necessity for compliance with the Constitution." n264 More recently the Court has held that Congress's elimination of judicial review of administrative bail denials for immigrants facing deportation (where the immigrant had been held for six months with no hearing), did not eliminate a due process review or the Court's power to grant habeas relief in lieu of bail. n265    In a McCarthy era opinion analyzed under the standing doctrine addressing an organization's right to object to being labeled a communist in an ad hoc procedure by the Justice Department Justice Frankfurter's concurring opinion drew heavily from the Brinkerhoff Faris case in which the Supreme Court required Missouri to open its state courts to an action against a local tax. n266 Specifically, Frankfurter quoted that "whether acting through its judiciary or its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it." n267    Two cases involving Selective Service challenges raised the forum availability question during the Vietnam War. In Petersen v. Clark, n268 plaintiff sued to enjoin induction into the military and the government objected on the grounds that federal law barred judicial review of a Selective Service decision. n269 The district court found the jurisdiction stripping statute unconstitutional, citing authority that due process is a limitation on Congress 's power to regulate federal jurisdiction. n270 More complicated facts arose in Murray v. Vaughn, n271 in which Murray was expelled from the Peace Corps for publishing an editorial against the Vietnam War while at his assigned location in Chile. He then was reclassified by Selective Service and drafted; he sued for injunctive relief to bar the draft, and for reinstatement in the Peace Corps to maintain his prior draft deferment. The government objected to the federal district court's subject matter jurisdiction on the grounds that Murray's claim did not satisfy the $ 10,000 jurisdictional amount, arguing that his missing Peace Corps benefits were the only quantifiable claim. The court rejected this characterization both as to how to quantify his losses, n272 and, pertinent to this article, because Murray's First Amendment claim would go without a forum if the $ 10,000 amount were deemed to disqualify it. n273 The court found authority not only in due process but in Article III as well:     Both the Fifth Amendment and Article III, 2 of the Constitution might well be abused if no avenue is opened for review by the courts of that claim. Specifically, if there is an arguably valid constitutional claim here, and if, as the government contends, neither 28 U.S.C. 1361 mandamus nor 28 U.S.C. 1331 general equity jurisdiction is available, how can the plaintiff seek to vindicate his rights? Certainly, the concurrent jurisdiction of the state courts is highly questionable in this context ... . In summation, it is probable that if 1331's amount in controversy proviso bars this court from reaching the merits of this case, a plaintiff, who alleges injury to those rights which occupy the highest position in the pantheon of our constitutional values, would be left without judicial process of law. As so applied, 1331 might well be deemed to violate both the due process clause of the Fifth Amendment and Article III, 2 of the Constitution insofar as it establishes the judicial branch of the government. n274     In 1986, the Supreme Court dodged a "serious constitutional question" in Bowen v. Michigan Academy of Family Physicians by interpreting a federal statute as not precluding judicial review of certain Medicare payments to doctors. n275 The D.C. Circuit avoided a similar issue in Bartlett v. Bowen, when the court considered a law that arguably barred judicial review of a Social Security determination regarding extended care payments to Christian Science facilities. n276 The Bartlett court held that any statutory construction that precluded review would violate both separation of powers n277 and due process, n278 and drew authority from several scholars including Professor Redish's point that ""to the extent that the provisions of Article III are inconsistent with the due process clause of the fifth amendment, those provisions of Article III must be considered modified by the amendment.'" n279 The Bartlett opinion further quoted Professor Ratner:     It is reasonable to conclude, therefore, that the [Constitutional] Convention gave Congress the authority to specify ... orderly procedures and to modify the jurisdiction from time to time in response to prevailing social and political requirements, within the limits imposed by the Court's essential constitutional role. It is not reasonable to conclude that the Convention gave Congress the power to destroy that role. Reasonably interpreted the clause means "With such exceptions and under such regulations as Congress may make, not inconsistent with the essential functions of the Supreme Court under this Constitution." n280     Congress is not alone in having federal constitutional limits on its power over access to courts. State legislatures (and state courts applying state laws to bar court access) have met similar fates in attempts to limit judicial review. Brinkerhoff Faris Trust & Savings Co. v. Hill is the best example. n281 Plaintiff, a bank, sued to stop local Missouri tax assessments as discriminatory, but the state court dismissed the lawsuit an equity claim because the bank had not exhausted its administrative remedies by complaining first to the state tax commission. n282 The Missouri Supreme Court upheld the dismissal and expressly affirmed the exhaustion requirement, even though its own precedent held that the commission lacked adjudicatory power. The United States Supreme Court reversed, holding that "the practical effect of the judgment of the Missouri court is to deprive the plaintiff of property without affording it at any time an opportunity to be heard in its defense." n283 As to the argument that this was entirely a Missouri question and did not involve federal or constitutional law, the Court noted:     While it is for the state courts to determine the adjective as well as the substantive law of the state, they must, in so doing, accord the parties due process of law. Whether acting through its judiciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it. n284     In Brinkerhoff, Missouri's bar to judicial review was court created but was in the court's construction of a state statute. The case thus illustrates the wide applicability of the right to court access, first in its express application of a court access right to both Missouri's courts and its legislature, and second, in its use as precedent for purely federal cases. n285 State legislatures have also found constitutional barriers either state or federal to statutes requiring courts to grant legislative continuances for attorney legislators. n286    Bars to judicial review are not the only means of legislatures impairing the judicial forum, but are the most litigated examples of inappropriate limits. Other examples of litigation bars include long arm jurisdiction restrictions, subject matter jurisdiction rules, venue and inconvenient forum rules, and statutes of limitation. n287 All are presumptively valid but may encounter constitutional problems if unreasonably short or restrictive. More telling is the court access impairment arising from legislative budget cutting, which is not susceptible to judicial review in the federal system and likely not in most state systems. But, the unavailability of a judicial remedy for underfunding the courts does not compel the conclusion that legislatures are free to shirk their duty to furnish courts, as further illustrated in this article.    3. The Executive's Duty and the Foreign Policy Commitment to Court Access The quick answer to questions regarding the executive branch's duty of court access is that King John accepted it at Runymede n288 and President Jefferson re learned it in Marbury v. Madison. n289 Quick answers often fall short, as this one does, but it is true that the original common law commitment to court availability was imposed directly on the executive, albeit a king who also exercised legislative and judicial functions. Of course, King John's acceptance is merely heritage, as is the Magna Carta's commitment to due process.    Under the United States Constitution, the president's direct interaction with the judiciary is limited to federal judicial appointments and veto power over the budget, n290 even though the president has great indirect power in lobbying Congress on a variety of issues including the judiciary's budget and the jurisdiction and venue statutes discussed in this article. Under the Constitution, however, Congress has the far greater control over the federal judiciary and the president's opportunity to deny access to courts is limited. Nonetheless, it has happened. Andrew Jackson's statement regarding Worcester v. Georgia n291 that "John Marshall has made his decision, now let him enforce it" had the effect of denying the forum by denying enforcement of its judgment. n292 Because enforcement jurisdiction is an executive power, arguably President Jackson was within his rights. On the other hand, the statement has never been verified, n293 perhaps because Jackson was unwilling to affirm later what he had said privately. In any event, Jackson's ignoring of the judgment ordering the release of missionaries who broke Georgia law by living with Cherokees was mooted by the Georgia governor's pardoning them n294 and Jackson's view of judgment enforcement went untested.    Thirteen days after the fall of Fort Sumter and fearing insurrection in the volatile area around the Capitol, President Lincoln authorized Commanding General Winfield Scott to suspend the writ of habeas corpus in an area between Philadelphia and Washington, D.C. n295 In 1862, Lincoln formalized this with his infamous Proclamation Suspending the Writ of Habeas Corpus, used immediately to imprison several citizens accused of activities ranging from sabotage to seditious speeches. n296 This went unchallenged in some detentions without trial, including that of Congressman Vallandigham from Ohio, but was rebuked in Ex parte Merryman where Chief Justice Taney (in a lower court while riding circuit) ruled that Maryland Congressman John Merryman's detention by military authorities without trial was unconstitutional. n297 Lincoln later had Congress ratify his suspension of the writ, but was again rebuked after the war in Ex parte Milligan when the Supreme Court ruled that even with congressional approval, Milligan's conviction by a military tribunal was unconstitutional and should have been done in an Article III court. n298 At the outset of World War II, the Supreme Court seemed to back away from Milligan in Ex parte Quirin, at least as to foreign defendants, in upholding the military tribunal conviction and death sentence of a small group of German saboteurs who had landed on American shores. n299 The current Court recently reaffirmed the right to habeas in an Article III court for Guantanamo detainees captured in Afghanistan, n300 and again as to a United States citizen captured there. n301 In all these cases of habeas suspensions, defendants were detained under orders of the Executive branch. In the most recent cases following the terrorist attacks of September 11, 2001, Congress had authorized President Bush "to use all necessary and appropriate force" n302 but stopped short of delegating other Article I powers such as the suspension of habeas corpus.    Assuming that Quirin retains its force that is, that foreigners captured in the United States during wartime and accused of sabotage can be convicted by a secret military tribunal it is nonetheless clear that a strong presumption favors not only the right of habeas corpus, but the right to assert it in an Article III court. How much further this principle extends as to the president in non habeas claims is only speculative. But as discussed earlier in this article, agents of the executive branch, state and federal, are subject both to injunctive relief and damage awards for interfering with court access. n303    One notable executive interference with the judiciary Franklin Roosevelt's court packing plan was an attempt to stack votes in the Supreme Court to ensure favorable judicial review for New Deal reforms. n304 Undoubtedly an interference that exceeds other presidents' traditional attempts to appoint litmus satisfactory justices, Roosevelt's plan nonetheless affirmed the importance of court access by trying to load the Court rather than circumvent or stifle adjudication.    Even if Roosevelt's attempts cannot be labeled as supportive of the judicial function, actions by some American presidents can be best illustrated by the expansion of court access rights in international matters. The rise of civil and political rights in the 20th century included a number of treaties establishing, among other rights, the right to a forum not only for criminal defense but for certain civil claims specific to each treaty. These include the Universal Declaration of Human Rights, n305 the International Covenant on Civil and Political Rights, n306 the Protocol to the Convention Relating to the Status of Refugees, n307 the International Convention on the Elimination of All Forms of Racial Discrimination, n308 the Convention on the Elimination of All Forms of Discrimination Against Women, n309 the American Convention on Human Rights, n310 and the Convention for the Protection of Human Rights and Fundamental Freedoms. n311        IV. The Constitutionally Impaired Forum and Plaintiffs' Right to Litigate in State Courts    A. The Forum Furnishing Duty Applied to Budget Cuts The duty to exercise jurisdiction Colorado River's unflagging obligation is not merely a judicial duty but derives from a governmental duty to furnish a forum. Dating back to the barons' confrontation with King John in 1215, Anglo American rights have included the government's duty to provide court access for the resolution of public and private disputes, a duty that continues in our own Constitutional history and interpretive case law n312 and now appears in treaties affirming the right of access to courts. The right is not absolute. It is subject to limits and exceptions and like other areas of law, sometimes has vague boundaries. In spite of those limits, exceptions, and vagaries, the right of court access is fundamental and at some basic point, non derogable. It is a legal constant whose exceptions are based on ameliorating factors such as the existence of an alternative forum, a plaintiff's error in petitioning the wrong court, or in a delay that prejudiced the opposing party. The duty is imposed not only on governmental functionaries whose actions might require judicial review, but on government actors who impede court access. The duty applies to singular entities like King John and to each branch in a tripartite structure like the United States government.    Going back to the nation's founding, the United States has faced court access crises with governmental actors denying or attempting to deny a forum. But where ultimate court access was at issue, access won. The few instances where access lost were short lived and stand out as exceptions underscoring the rule. Until recently, forum denial crises had not been caused by systematic short funding. Although court funding is a recurring problem in government administration, the issue has been one of management difficulty and short term docket delays until the 1970s and 80s. Budgeting is now in the crisis stage and court access is threatened, particularly for civil cases.    In implementing austere operating budgets and conducting studies to find further efficiencies, the judiciary has acted in the best of faith even while declaring its crisis. n313 Vital court functions are now impaired and in some districts, some functions are ending. At the same moment that vital functions are in jeopardy, Congress is crowding the courts with more cases and more categories of cases, using preemption to federalize former state law matters, and requiring minimal diversity to qualify many of the largest state court actions for federal jurisdiction. Increasing numbers of state court plaintiffs will be forced into federal court by Congress's "astonishing" and ongoing expansion in the regulation of former state law rights and the expansion of federal court jurisdiction. n314 Preemption and removal are not inherently unfair, but will become unfair when the plaintiff's lawsuit languishes in federal court.    The duty to furnish a forum compels the conclusion that if Congress eliminated lower federal courts, as it has the power to do, its power to regulate lower federal court jurisdiction would be ineffective and the statutes would become dormant until the courts re opened. Litigation would then be in state courts with appellate review of constitutional and certain federal questions by the Supreme Court. n315 But is full closure required to trigger this default to state courts? If the right of court access is a limit on Congress's power to eliminate the federal courts, then the duty is surely implicated at some point well short of total elimination. The Constitution requires Congress to pay the judges, n316 and Congress requires the judiciary to pay rent which is set unilaterally by the landlord executive branch at rates termed confiscatory rates far exceeding that of any other government entity. n317 But nothing requires Congress to fund the courts sufficiently to pay the rent, or the light bill or phone bill, n318 or the salaries of the people who investigate crimes, or supervise felons, or defend indigents, or, more importantly in civil cases, pay the people who process the papers or electronic documents that are the all important record of adjudication on original jurisdiction. n319 If the Constitution lacks this protection, then the judicial branch is left with only the voting public to protect it. Life tenured judges and other safeguards are meaningless if Congress can merely turn off the lights. If Congress cannot eliminate lower federal courts while insisting on the continuation of preemption and removal, how much can Congress impair those courts while expanding their function and compelling plaintiffs to litigate in federal court? Short of total darkness, how dim must the lights be to trigger a breach?    B. The Moment of Breach The Supreme Court has held that the right of court access must be "adequate, effective, and meaningful" n320 and that litigants must be afforded "some real opportunity" n321 to protect rights. What is "adequate, effective, and meaningful"? Assume that federal courts were operating at fifty percent efficiency. The Speedy Trial Act prioritizes criminal cases and in many districts, all of the courts' remaining time would be spent on the criminal docket. n322 Is fifty percent operating strength the point of breach? It may be for civil claimants. Remember that the judicial budgeting process must distinguish between mandatory and discretionary costs. Mandatory costs judicial salaries and rent presently consume fifty nine percent of the budget, and, in the current budgeting formula, will consume seventy two percent in five years. The remaining "discretionary" functions the clerks' offices, probation officers, technology costs, and so on will suffer reductions even in the face of modest budget increases that do not keep pace with the quickly rising mandatory costs, the increased discretionary costs such as salary and benefits increases, rising technology costs, and newly implemented security costs. Federal courts are currently operating at less than capacity, and that capacity reduction will accelerate.    Some districts are contemplating four day weeks, while others are furloughing so many support personnel that the effect will be partial closure. n323 Closing one day a week is a twenty percent cutback in a district's functioning. Assuming that the time allocation between civil and criminal is even (and in some districts criminal cases take up more than half the courts' time), n324 a one day a week closure is a forty percent cutback in those courts' availability for civil cases. Some will argue that partial closing might involve only the closing of nonjudicial functions, allowing judges and their immediate staffs to function throughout the traditional five day week. This assumes that the court needs no assistance from the clerk's office or other personnel on those days. Marshalls and other security personnel would of course have to be there, and the utilities would have to function, resulting in less savings on the "closed" days. That lesser savings would have to be made up, perhaps by having the clerk 's office closed two days a week. This may well be the case in less than five years. n325    With the criminal docket having priority over civil cases, would due process permit us to assess the courts' aggregate performance, civil and criminal, and ignore the growing backlog of civil cases? If so, if civil cases can be forced from state court into federal court with the knowledge that they will not be heard, then there is no remedy for methodical defunding, and there is no right to court access. If the budget impact is sufficient to make federal civil filings greatly exceed case resolutions for an extended period, those cases will not have an adequate, effective, and meaningful remedy. Civil defendants would lose incentive in the all important pretrial phase. Discovery would be less compelling with courts unavailable to hear the disputes, and those discovery disputes would in turn increase without fear of sanction, or even orders to compel. The prospect of litigation pressures settlement, which would abate as cases sat idle. With lower incentive defendants, a paradox would occur with some plaintiffs, or at least their lawyers. To the extent that dispute resolution shifted even more heavily from litigation to mediation and other out of court procedures, some plaintiffs would increasingly file frivolous cases without the fear of facing the burden of even summary judgment, let alone trial, looking instead for an opportunity to mediate a profit.    This is not to suggest that we need a Speedy Civil Trial Act. Civil litigation has always been tedious and lengthy, and delays must be endured. Rather, it is to suggest that if the elimination of lower federal courts would abate their jurisdiction, then a significant partial closing (where criminal trials would take up most judicial resources) would necessarily have the same effect of making civil jurisdiction constitutionally questionable.    If impaired federal courts do breach a duty that breach occurs with more impact for litigants who would prefer state courts. The current crisis demonstrates the reason why courts of general jurisdiction state district courts are essential to democratic society, not to mention society's freedoms. Federal courts have never had a function of general jurisdiction, but are being given something close to that role by Congress's increasing use of removal jurisdiction and the preemption of state law remedies. These expansions have prima facie constitutional validity, but to the extent that Congress is advancing its tort reform agenda by stripping the federal courts' operating budget and undermining the same civil litigation it has pushed from state courts into federal courts, the due process clause and the Tenth Amendment compel the conclusion that Congressional power has been exceeded.    It is difficult to fashion an appropriate test for breach, at least this breach involving economic data, in an academic format. The test must be devised in an adversary setting based on both national and local data and the injury to the parties. Two sufficient grounds come to mind. First, if Congress is shown to have intentionally impaired the federal forum to achieve policy goals (something simple like tort reform, or complex like re defining the judicial function) n326 unrelated to budget concerns, its jurisdictional expansions such as the minimal diversity statutes arguably breach the court access duty and are unconstitutional. This is an unlikely result because courts may not ordinarily inquire into Congressional motives and must instead rely on the legislative language and record. n327    Second, without speculating about Congressional intent, if essential judicial branch functions are undermined to the extent that litigants no longer have an "adequate, effective and meaningful" forum, the duty is breached. Breach would not be triggered by simple docket backlog, particularly if the backlog is specific to some districts and not others, or by short term backlog primarily caused by non funding factors such as judicial vacancies. It would be triggered where Congressional funding cutbacks have a substantial and nationwide impact on court functions to the extent that the districts' collective dockets are growing. Thus, the standard might be based on a nationwide problem (although the problem would not have to be acute in every district), based on systemic problems rather than a series of locally occurring problems, that were ongoing rather than short term, and that affect essential court functions. One possible standard, then, is if the federal backlog reaches the point that over a sustained time it is adding civil cases significantly faster than it disposes of them, and does so systematically rather than in isolated districts, it will be in breach. Congress's current funding approach may reach that point soon.    One additional factor in determining the moment of breach will be backlogs in various state courts, which are historically more crowded than federal courts. Moreover, some state courts are facing their own funding crises, although not with the dire predictions accompanying the federal forecasts. n328 Some will argue that if state and federal backlogs are similar, then neither can be deemed to have breached a duty of court access. That argument, put in its best light, is like saying that the standard of care is determined by prevailing practices in the locale of the negligence. Put in its worst light, it is the equivalent of saying that if two defendants are grossly negligent, then neither is negligent. Under this view, if both state and federal judiciaries are compromised to the extent that criminal trials largely displace the courts' ability to deal with civil dockets, then both systems will have been breached. In this event, where neither system is providing any remotely meaningful access, plaintiffs with claims litigable in state court ought to be able to choose where to stand in line. Another possibility, however, is that federal court access for civil cases will become much worse than state court access that Congressional underfunding and executive overbilling for rent, combined with Congress's expansion of federal jurisdiction (both criminal and civil), and the priority for criminal cases, may push the federal backlog well beyond the waiting time in the states.    C. The Remedy for Congress's Funding Breach Two remedies have been suggested for underfunded courts. One is the inherent power doctrine that courts state or federal have an inherent power to raise revenue. n329 The second is that courts have the power to compel Congress to pay, or even that a single federal district court can send Congress the bill. n330 While those arguments are not examined here, both are constitutionally doubtful in regard to federal courts. A more plausible remedy is the one argued for throughout this article that Congress's regulatory power over the lower federal courts is tied, at least loosely, to its funding. Because of the forum furnishing duty, an enabling budget is just as important as an enabling statute. If either fails, Congress's judicial regulation must fail with it. If Congress used its Article III discretion to eliminate lower federal courts entirely, then the Congress's jurisdictional regulation of those courts would be dormant. To argue otherwise would be to argue that Congress could authorize defendants to remove cases from state court for litigation in a nonexistent court, or require plaintiffs with employee benefit claims to file them in nonexistent federal courts. In every instance, this would violate due process and the first amendment petition clause, and in other instances would violate other clauses as explained in this article. Without this constitutional solution, a solution that necessarily follows from the cases discussed here, the judiciary is at the mercy of Congress and the President.    Congress's current attitude toward federal courts stripping funds while piling on new cases will breach Congress's duty at some point. In more than two centuries of democracy that included a civil war, a court blocking crisis has never occurred on the level that could occur in this fact setting. If Congress pursues the paradox of increased jurisdiction with fewer personnel and less equipment, courts will not be able to fix the problem by raising their own funds or ordering Congress to pay. However, courts can determine that they lack jurisdiction, based on Congress's failure to provide an adequate, effective and meaningful forum.    What jurisdiction is lost? One answer is that, like Oliver Wendell Holmes's "Wonderful One Hoss Shay," the whole system breaks down at once and all jurisdiction is impaired at the point of breach, when a sufficient number of courts cease functioning as traditional fully operational courts. That answer is as severe as Congress's attitude toward the judiciary. A more reasoned answer is that because part of the problem is the Congress's astonishing expansion of federal judicial jurisdiction, that the more recent and exorbitant exercises of that jurisdiction fail.    But compromise answers may be inappropriate for jurisdictional questions. The right of court access compels a third answer for a specific class of plaintiffs those who prefer to litigate in state courts. If federal courts cannot function with the growing docket and shrinking budget that Congress has given them, then plaintiffs who have claims capable of adjudication in state courts have a right to choose state court over federal court. Congress's efforts to deny that choice and force those plaintiffs into partially functioning federal courts is a further breach. Any statute compelling this result is unconstitutional, violating due process and the other court access guarantees discussed here. Specifically, Congress loses the power to preempt state law remedies and compel exclusive jurisdiction in federal courts; it loses the power to authorize the removal of claims from state to federal court; n331 and it loses the power to authorize putative defendants to sue for declarations of nonliability regarding claims for which true plaintiffs prefer state court. Marbury's holding that a right entails a remedy has been eroded by Congress's creation of public rights that lack a private remedy. n332 Marbury and its progeny have not been eroded, however, for the concept that courts of general jurisdiction have the power and the duty to adjudicate legal claims that do have a private remedy. Congress may not federalize those claims by exclusive preemption or removal and then close the federal courthouse doors.
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