The Fall and Rise of Specialized Federal Constitutional Courts

Most constitutional challenges in federal court to federal statutes are litigated in the familiar pattern of a decision by a single U.S. District Judge, followed by an appeal to a three-judge panel of one of the U.S. Court of Appeals, followed by the filing of a writ of certiorari in the U.S. Supreme Court, which has discretion to grant or deny the writ. Sometimes, however, Congress requires a separate path for constitutional challenges to particular federal statutes, with the frequent challenges to provisions of the Bipartisan Campaign Reform Act, such as in Citizens United v. FEC (2010), being a notable example. These provisions often provide for the convening of a threejudge district court, usually in the District of Columbia, followed by an ostensibly mandatory appeal to the Supreme Court. They often also permit members of Congress to bring or intervene in such actions, and mandate that the federal courts decide the cases in an expeditious manner. All of these characteristics are absent from the typical challenge to federal statutes. These atypical jurisdictional provisions in effect establish specialized if ad hoc federal courts to rule on constitutional issues. The causes and consequences of specialized federal constitutional courts are an understudied phenomenon in the scholarly literature, a gap filled by this article. The Article first summarizes the history of the three-judge district court, founded to consider all constitutional challenges to federal statutes, from its establishment in 1937 to its repeal in 1976. It next documents the instances when Congress has subsequently created such courts on a statutespecific basis, and addresses the rationales advanced in the legislative history, namely, uncertainty over a statute’s constitutionality, and the asserted need to promptly resolve that issue. The Article then subjects the partial revival of such courts to critical examination. It argues that a complex and sometimes inconsistent set of reasons, including but not limited to Congressional abdication of constitutional deliberation to the judicial branch, explains the ad hoc adoption of these statutes. The Article argues that other provisions of these laws, such as mandating venue in the District of Columbia or expeditious treatment, are unnecessary. Finally, it contends that cases litigated before these courts have a possibly deleterious impact on the quality of decisions in the Supreme Court. The Article concludes that Congress should not pass these statutes and rather permit all constitutional litigation to proceed in a uniform manner. * Donald P. Klekamp Professor of Law, University of Cincinnati College of Law. For their helpful comments on an earlier draft, thanks to Tim Armstrong, Aaron Bruhl, Chris Bryant, Jacob Cogan, Neal Devins, Josh Douglas, Rick Hasen, Rich Saphire, Sandra Sperino, and to the participants in faculty workshops at the University of Cincinnati College of Law and the University of Dayton School of Law. Thanks also to Matt Dearden for his excellent research assistance, and the Shott Fund for financial support. © 2014 by Michael E. Solimine 116 JOURNAL OF CONSTITUTIONAL LAW [Vol. 17:1