The Constitution provides for the protection of rights from the will of the majority through the separation of powers doctrine. Controversy arises when Congress attempts to limit the appellate jurisdiction of the Supreme Court, set forth in Article III, section 2 of the Constitution, which states that, "The Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Legislative schemes that curtail the jurisdiction of federal courts to interpret the Constitution or other pieces of legislation are often found unconstitutional. Neither the courts nor scholarly doctrines have come to an agreement in determining the scope of Congress' power to strip federal courts of their jurisdiction under the Exceptions Clause of the Constitution. To date, the Supreme Court has upheld some jurisdictional-stripping statutes while finding them unconstitutional in other cases.
[...] Never was a decision made to determine if compliance with NEPA would necessarily stand as an obstacle to the expeditious construction of the Memorial. Citing the case of D.C. Federation of Civic Associations, Inc. v Volpe F.2d 436 (D.C. Cir. 1970), the Plaintiffs maintain that the savings provision of Section 1 should be read as “permitting the design of the World War II Memorial to be modified a manner consistent with' previously approved plans and permits, in accordance with any applicable laws and regulations.” Plaintiffs suggest such interpretation is how the “notwithstanding” provision should be applied to their case as Court is left with the task of determining the extent to which laws identified in the savings given provision are ‘applicable,' given the directive that the project be exempted from laws that might unduly delay construction.” The Plaintiff's conclude their argument that since Section 3 of Public Law 107-11 removes the courts' jurisdiction, they are unable to determine the interpretative questions brought up in Section 1 such as its applicability of exempting particular statutes. [...]
[...] The Plaintiffs first set forth the requirements to obtain injunctive relief: [That] they will suffer irreparable injury unless injunctive relief is granted; The Harm to the National Mall Outweighs the Harm to the Government; The Coalition has a Strong Likelihood of Prevailing on the Merits. Next they argued that the National Environmental Policy Act (NEPA) claim is not expressly precluded by the language of Public Law 107-11 and it does not stand as an obstacle to achieving the law's goals. [...]
[...] National Coalition to Save Our Mall v. Norton F.Supp.2d 14 (D.D.C. 2001) Memorandum Opinion of District Court The next day, on May the Justice Department attorney representing the Defendants, went before the District Court to argue that the new law should result in a dismissal of the pending case as Public Law 107-11 withdrew the courts' jurisdiction over the case. It the District Court's analysis, it was ascertained that the Plaintiffs essentially set forth three arguments. First, was that Public Law 107-11 does not mention the National Park's Service decision to forego preparation of an Environmental Impact Statement and therefore the law does not in anyway remove the applicability of the National Environmental Policy Act to the Memorial. [...]
[...] In addressing the Government's argument that an adequate NEPA analysis was conducted, the Plaintiffs contend that the National Park Service's decision to forgo completing an Environmental Impact Statement by conducting an Environmental Assessment (which resulted in the issuance of the “Finding No Significant Impact”), was violative of environmental rules. In addition, the Environmental Assessment was based upon a design of the Memorial that was later modified for a larger design. Plaintiffs next argue that a “Finding No Significant Impact” (FONSI) was a final agency action. [...]
[...] This paper will focus on the case of National Coalition to Save Our Mall v. Norton, to demonstrate the complexities that surround the issue of jurisdiction-stripping legislation. It will be argued that the removal of judicial review may be made in good-faith and appear a logical way to obtain a particular result. Nevertheless, such legislation too often has damaging consequences on parties that are left without the ability to argue their judiciable issues in court. In conclusion, it will be suggested that instead of precluding judicial review altogether, Congress could designate particular cases to be “judicially prioritized.” Certain cases could be assigned time limits, a type of judicial fast-track, in order to expedite a court ruling. [...]
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