[UPDATE: In writing this, I missed Cohens v. Virginia (1821). Under Chief Justice Marshall's constitutional interpretation in that case, the Court does not have original jurisdiction over United States v. Arizona, but only has appellate jurisdiction. For more on that, please see this post.]
Several readers asked me why United States v. Arizona — the case in which the U.S. is challenging the constitutionality of Arizona’s law dealing with illegal immigrants — hasn’t been filed from the outset before the United States Supreme Court. Article III, section 2 of the Constitution provides, in relevant part,
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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.
In U.S. v. Arizona, “a State [is] Party,” so why doesn’t “the supreme Court … have original Jurisdiction” (without regard to any “Regulations as the Congess shall make,” since that latter clause is applicable only to “the other Cases before mentioned”)?
Unfortunately, I am not an expert on the law of federal jurisdiction, so I can’t speak to this with great confidence. But with some help from cobloggers, and from my UCLA colleague Prof. Jonathan Varat, here’s what seems to be the answer — I’d love to hear any corrections or elaborations of this from readers who know more about federal jurisdiction law than I do.
1. A federal statute, 28 U.S.C. § 1251, provides that
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.
In principle, this means that the Supreme Court could be asked to hear the case (since it does have original jurisdiction), but might well decline (since its jurisdiction is not exclusive). See United States v. Nevada (1973) for an example of an opinion declining to exercise such jurisdiction. (“We seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim.”)
2. The Judiciary Act of 1789 similarly provided, in section 13, that some of the cases as to which the Supreme Court has constitutional original jurisdiction — there, certain (though not all) cases involving states, as well as certain cases involving ambassadors and consuls — could also be heard in lower courts.
3. In United States v. Ravara (1793), a 3-judge circuit court held — by a 2-1 vote, with Justice Wilson and Judge Peters in the majority, and Justice Iredell in the dissent — that
[A]lthough the Constitution vests in the Supreme Court an original jurisdiction, in cases like the present [which involved the Genoese consul], it does not preclude the Legislature from exercising the power of vesting a concurrent jurisdiction, in such inferior Courts, as might by law be established[.]
4. Based on this, the Supreme Court in Ames v. Kansas ex rel. Johnston (1884), held:
Within six months after the inauguration of the government under the Constitution, the Judiciary Act of 1789 was passed. The bill was drawn by Mr. Ellsworth, a prominent member of the convention that framed the Constitution, who took an active part in securing its adoption by the people, and who was afterwards Chief Justice of this Court….[Given provisions such as section 13 of the Act, i]t thus appears that the first Congress, in which were many who had been leading and influential members of the convention, and who were familiar with the discussions that preceded the adoption of the Constitution by the States and with the objections urged against it, did not understand that the original jurisdiction vested in the Supreme Court was necessarily exclusive….
Acting on this construction of the Constitution, Congress took care to provide that no suit should be brought against an ambassador or other public minister except in the Supreme Court, but that he might sue in any court he chose that was open to him. As to consuls, the commercial representatives of foreign governments, the jurisdiction of the Supreme Court was made concurrent with the District Courts, and suits of a civil nature could be brought against them in either tribunal. With respect to States, it was provided that the jurisdiction of the Supreme Court should be exclusive in all controversies of a civil nature where a State was a party, except between a State and its citizens, and except, also, between a State and citizens of other States or aliens, in which latter case its jurisdiction should be original but not exclusive….
5. Over time, the zone of the Court’s original and exclusive jurisdiction has shrunk, but the principle underlying Ravara, Ames, and the 1789 Judiciary Act — that Congress may indeed shrink this original and exclusive jurisdiction — has apparently been accepted. Even if this was a mistaken interpretation of the Constitution (and I’m not sure it was), it seems to be a 220-year-old mistake, and our judicial system tends to be reluctant to disturb such old mistakes. To quote James Madison, sometimes “the question of the constitutional authority of the Legislature” to do something is seen as “precluded … by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.”
Or so it seems to me at this point; please do correct me — preferably with citations to relevant authority — if I’m mistaken.
UPDATE: Here, by the way, Justice Iredell’s dissenting opinion in United States v. Ravara (1793), which I take it echoes (with “questions relating to the Public Agents of Foreign Nations” suitably changed to “cases involving States”) the view of those who think that cases such as United States v. Arizona should indeed be within the Supreme Court’s exclusive jurisdiction:
I do not concur in this opinion, because it appears to me, that for obvious reasons of public policy, the Constitution intended to vest an exclusive jurisdiction in the Supreme Court, upon all questions relating to the Public Agents of Foreign Nations. Besides, the context of the judiciary article of the Constitution seems fairly to justify the interpretation, that the word original, means exclusive, jurisdiction.
The questions are (1) whether you think Justice Wilson (who, for whatever it’s worth, was a leading drafter of the Constitution) or Justice Iredell had the better view, and (2) perhaps more importantly, what you think of the significance of the longstanding judicial and legislative precedent on the matter.
dan says:
Interestingly, as your Nevada case implies, the Supreme Court can decline to exercise its original jurisdiction even when it IS exclusive.
August 19, 2010, 6:04 pmNicholas M. says:
My understanding was that original jurisdiction in the SC was provided to assure the States, at the time of adoption, that they would not be railroaded in an untested and unformed Federal judicial system.
See the dissent in last term’s South Carolina v. North Carolina, which suggests that original jurisdiction be reserved for “high claims affecting state sovereignty,” or “disputes so serious that they would be grounds for war if the States were truly sovereign.”
Perhaps over that 220-year period, the States (and the public) have seen that the lower Federal courts can try questions of fact and of law in an independent, fair manner, undercutting the original motivations for the OJ provision.
August 19, 2010, 6:17 pmfwb says:
The original jurisdiction grant is a command. The language SHALL HAVE is a command, a directive. It leaves nothing for Congress to decide nor does it allow Congress to transfer the authority. You can play with language all you want but the delegation of authority from We the People was to the supreme Court without any option of interference from Congress. There are no ambiguities in the language to make one believe Congress can decide that this jurisdiction is not exclusive.
August 19, 2010, 6:51 pmAnon21 says:
On the contrary; as the per curiam opinion notes, the United States could have resorted to federal district court to file its claim in the first instance. Apparently then as now, controversies between the United States and a State were not within the exclusive original jurisdiction of the Supreme Court.
But the whole issue is that Article III doesn’t even mention exclusivity. Are you suggesting that the concept of concurrent jurisdiction was so alien to the Framers that they didn’t even see the need to include an explicit provision as to exclusivity, if that’s what they intended? I’m no legal historian, but I’m dubious that that could be true, given that concurrent jurisdiction appeared almost immediately in the law of federal courts.
August 19, 2010, 7:08 pmAndy McGill says:
The Supreme Court would have to assign it to a special master to develop a factual record, and that would take a year or years. Plus another year for the Supreme Court to hear the case and decide whether to issue an injunction. I think there have been less than 150 original jurisdiction cases before the Supreme Court.
If the US wanted an injunction or decision any time soon, then it makes much more sense to file in district court.
August 19, 2010, 7:19 pmBama 1L says:
If you are thinking of expanding this discussion, you probably ought to mention the Eleventh Amendment, since it amended Article III, section 2 and limited the Court’s original jurisdiction.
August 19, 2010, 7:30 pmJozxyqk says:
Here in Washington, a statute (RCW 2.08.010) provides that the superior courts SHALL HAVE original jurisdiction in all cases where the amount in controversy is more than $300. Would you say that this demands exclusive jurisdiction over all such cases? Where does that leave the municipal courts? Or small claims courts (amounts up to $5,000)? How strange that the legislature should create them!
August 19, 2010, 7:38 pmSuperSkeptic says:
Echoing Bama1L and piling on fwb: An overly textualist reading on this section in addition to the eleventh amendment would simply eliminate a lot of jurisprudence and settled expectations. What Madison said must control, practically.
August 19, 2010, 7:41 pmSuperSkeptic says:
Just one more thought on Madison’s quote (sorry for double post): What he describes here is what I’ll term “republican estoppel”. What I mean by this is that this kind acceptance by acquiescence is the core of how the republicanism *actually* functions – its actual purported theory being pure fiction. We are estopped from complaining about things of this nature in the same way we are estopped from complaining about the very existence of government under the republican theory; hence, republican estoppel.
August 19, 2010, 7:54 pmepluribus says:
You are playing with these words. Jurisdiction is the power to hear and decide a case. It is not the duty to hear and decide a case. The Constitution says the Supreme Court “shall have” jurisdiction. It does not say it “shall exercise” the jurisdiction. Having jurisdiction does not mandate that the jurisdiction be exercised, particularly if the parties do not invoke the jurisdiction. The Constitution doesn’t say that Congress may not grant the same or similar jurisdiction to other federal courts. It has done so. When you state an argument like this with cock sure certainty, it should give you pause when you consider that Congress and the courts have for many years come to a completely different conclusion.
August 19, 2010, 8:21 pmGuy says:
Article III also says the judicial power “shall” extend to diversity cases, does that make the amount in controversy requirement unconstitutional? In fact, I think there’s a better textual argument there, since Congress is negating the existence of the jurisdiction entirely.
August 19, 2010, 8:31 pmGuy says:
No, I think it means that all of the courts in the state have to take jurisdiction simultaneously, and then race each other to judgment.
August 19, 2010, 8:36 pmfirst history says:
This is a favorite talking point on Free Republic.
August 19, 2010, 9:24 pmGarrett says:
I’m not a legal professional, but I think there are three interesting things to consider here:
1) As a part of founding the country, one of the issues to address was matters between the states. If one state thought another had improperly annex a portion of another, why would be able to provide a fair trial? Not the alleged infringer, nor the one allegedly infringed upon. The Supreme Court was fleshed out well enough to handle it.
2) My understanding is that the SCOTUS will frequently appoint a special master to deal with a trial, even if it exercises original jurisdiction.
3) If the SCOTUS objects to how things are being done, it can address them directly on appeal. Just simply state that the whole previous process was invalid and in front of the wrong juristiction, and that it would be *delighted* to start hearing evidence.
August 19, 2010, 9:37 pmJay says:
Along the same lines, 28 USC 1331 and 1332 say that the district courts “shall have original jurisdiction” over those types of cases (FQ and diversity), but no one thinks they operate to deprive state courts of jurisdiction over those cases.
August 19, 2010, 10:07 pmAndrew says:
The “state shall be a party” language in the Constitution does NOT mean that SCOTUS has original jurisdiction merely because a state is a plaintiff or defendant.
Per Cohens v. Virginia, 19 U.S. 264 (1821): “[T]he original jurisdiction of the supreme court, in cases where a state is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised, in consequence of the character of the party.”
Thus, the original jurisdiction of SCOTUS due to a state being a party ONLY applies to: “Controversies between two or more States;– between a State and Citizens of another State… between a State…and foreign States, Citizens or Subjects.”
The case that the US is bringing against Arizona is none of these, so SCOTUS lacks original jurisdiction. Incidentally, per Marbury v. Madison, Congress cannot expand the original jurisdiction of SCOTUS.
Even if SCOTUS did have original jurisdiction in this case (which it does not), that would not necessarily preclude concurrent original jurisdiction in a lower court.
August 19, 2010, 10:09 pmGuy says:
One question that I don’t know has ever been addressed: If the Supreme Court has concurrent original jurisdiction in a case, doesn’t Marbury v. Madison suggest that it lacks appellate jurisdiction? Can the Court hear an appeal as an act of “original” jurisdiction? Sort of like how an “original” writ of habeas corpus is an exercise of “appellate” jurisdiction in the sense of the Constitution?
August 19, 2010, 10:57 pmcboldt says:
Tangentially (in the same statutory family, but SCOTUS jurisdiction stated as exclusive and original) see Arizona v. New Mexico, 425 US 794 (1976) for an example of a state v. state case where SCOTUS declined Arizona’s motion for leave to file a complaint.
August 19, 2010, 11:04 pmDuffy Pratt says:
I’m not sure I understand the reference to Marbury v. Madison. Original jurisdiction does not necessarily imply a lack of appellate jurisdiction. For example, District Courts share original jurisdiction with state courts over a host of matters. The District Courts also have appellate jurisdiction over some of those cases via removal statutes.
August 19, 2010, 11:10 pmcboldt says:
– I’m not sure I understand the reference to Marbury v. Madison. –
Marbury v. Madison
The lesson is that jurisdiction, like all the rest of the law, is simply outcome oriented. There are sufficient precedents on either side of any issue, that with suitable selection and surrounding rhetoric, any outcome can be obtained in what appears to be a decision reasoned from first principles, rather than from outcome.
August 19, 2010, 11:21 pmGuy says:
Marbury‘s construction was that the Supreme Court could not possess original jurisdiction where it also possessed appellate jurisdiction:
Now, since the Exceptions Clause is (or has been construed to be) only attached to the definition of appellate jurisdiction, I suppose you could argue that granting statutory appellate jurisdiction concurrent to Constitutional original jurisdiction is not the same as granting statutory original jurisdiction concurrent to Constitutional appellate jurisdiction (the latter of which Marbury held to be unconstitutional), since the latter construction is necessary to prevent the Exceptions Clause from being surplusage, but the former isn’t. But that conclusion is far from obvious to me.
August 19, 2010, 11:23 pmAndrew says:
Cboldt, I don’t know that any SCOTUS decision has ever contradicted that language from Marbury v. Madison (which seems consistent with a federal statute giving both original and appellate jurisdiction to SCOTUS on a case where the Constitution merely gives original jurisdiction).
August 19, 2010, 11:32 pmGuy says:
To be frank, I’ve never found Marbury‘s construction of the relevant clauses to be persuasive, even though the rest of the opinion seems perfectly correct to me. But then again, John Marshall was a judicial activist before it was cool. And, as Andrew alludes to, contradicting any part of Marbury, even its dicta, is pretty unthinkable.
August 19, 2010, 11:38 pmSkyler says:
It seems to me that it could have been brought to the US Supreme Court, which could have refused to hear it, but more importantly, the State of Arizona was obliged to challenge jurisdiction of the district court and having failed to do so it was obliged to accept its power over the case.
August 19, 2010, 11:39 pmcboldt says:
– which seems consistent with a federal statute giving both original and appellate jurisdiction to SCOTUS on a case where the Constitution merely gives original jurisdiction –
August 19, 2010, 11:40 pmMy read of the dicta in Marbury v. Madison is that the two types of jurisdiction are mutually exclusive, and that the legislature can not be found to have a power (to define jurisdiction) that modifies the jurisdictional grant recited in the constitution.
The solution is obvious. Ignore the offending dicta, and let the Supreme Court and Congress agree on whatever jurisdictional arrangement suits the moment.
Guy says:
Which there is a lot of, since most of the case is an utterly superfluous, if well reasoned, discussion of the merits.
August 19, 2010, 11:46 pmAndrew says:
Cboldt, the Court said in Marbury: “If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance.”
Notice the conjunction “and”. Congress cannot expand the original jurisdiction of SCOTUS described in the Constitution, and no subsequent SCOTUS decision has ever said otherwise AFAIK. So, the quoted satement from Marbury was correc and remains correct, it seems to me.
August 19, 2010, 11:48 pmAndrew says:
In his blog post, Professor Volokh quoted 28 U.S.C. § 1251 as saying that SCOTUS shall have original jurisdiction in controversies between the United States and a State. That seems to unconstitutionally add to the original jurisdiction described on the Consitution, unless you construe such a case as a controversy between two or more states which seems like quite a stretch.
August 19, 2010, 11:59 pmcboldt says:
– Notice the conjunction “and”. Congress cannot expand the original jurisdiction of SCOTUS described in the Constitution, and no subsequent SCOTUS decision has ever said otherwise AFAIK. So, the quoted satement from Marbury was correc and remains correct, it seems to me. –
August 19, 2010, 11:59 pmThe way I read the sentence, the “and” is conjunctive in the sense of sharing “If congress remains at liberty to give this court” without resort to independent sentences; notice the semi-colon separators. By granting appellate jurisdiction where the constitution grants original jurisdiction (which is not an extension of original jurisdiction, it is an expansion of appellate jurisdiction), Congress is altering the distribution of jurisdiction made in the constitution.
Hey, it’s called the “Supreme” Court for a reason. It can follow whatever rule it sets forth, and it can read its precedents for the opposite of what they say. That’s “normal.”
As for the construction you prefer (Congress has the power, under the Constitution and under the precedent of Marbury v. Madison, to expand SCOTUS appellate jurisdiction), would the Supreme Court have both original and appellate jurisdiction over the same case, so that it could, theoretically of course, both try it, and then conduct the appeal?
J.T. Wenting says:
If you’re cynical, you’d say they filed in a lower court to lengthen the process, and chose one they knew they’d win in, knowing full well in advance that eventually they’d loose in the USSC.
August 20, 2010, 12:06 amThis way the Obama administration gets the Arizona bill defanged until after the midterms, winning them (in their reasoning, they still think the majority of Americans like them) some votes (and of course allowing possibly millions of illegals to stream into the US before the midterms, all of whom can be equipped with voter registration cards and told which box to tick on the ballots by ACORN or its children, just as happened in the past).
Guy says:
It contradicts Cohens v. Virginia, but seems consistent with the most literal reading of the text. I don’t know what point of time the relevant language dates from, but even if it antedates Cohens, it’s possible the drafter simply overlooked this relatively obscure technicality.
August 20, 2010, 12:09 amGuy says:
That’s one resolution of the issue, but I like my “an appeal can be still be original jurisdiction” argument better, it just feels more Marshallian.
August 20, 2010, 12:13 amAndrew says:
Cboldt, by granting appellate jurisdiction where the constitution grants original jurisdiction, Congress is not altering the distribution of jurisdiction made in the constitution if the two are concurrent, but is altering the distribution if the two are not concurrent; Marshall was doubtlessly assuming that Congress wanted the two to not be concurrent. Anyway, it’s time for me to go get unconscious. Good night.
August 20, 2010, 12:17 amGuy says:
I meant postdates.
August 20, 2010, 12:17 amcboldt says:
– In his blog post, Professor Volokh quoted 28 U.S.C. S: 1251 as saying that SCOTUS shall have original jurisdiction in controversies between the United States and a State. –
August 20, 2010, 12:25 amThe statutory grant of 28 USC 1251 describes two types of original jurisdiction. Original [and implied, "shared"], and original and exclusive [for cases between two states; but see Arizona v. New Mexico (linked above) where SCOTUS declined to hear the case]. 28 USC 1251 does not delve into appellate jurisdiction.
The point of Cohens v. Virginia was to justify expansion of appellate jurisdiction beyond the constitutional grant, and beyond the dicta in Marbury v. Madison. Its argument draws on cases between a state and citizens of the state, but I think that argument falls flat because those cases are outside of the broad subject matter jurisdictional grant in the first place. Cohens v. Virginia also notes the history of not taking original jurisdiction in cases involving foreign ambassadors.
Guy says:
I think it’s funny how the Supreme Court goes out of its way even more than usual to avoid Constitutional questions when they’re about the first two clauses of Article III §2, and then when they do the result looks less like a natural development and more like the law is having an epileptic fit.
August 20, 2010, 12:33 amcboldt says:
– If you’re cynical, you’d say they filed in a lower court to lengthen the process, and chose one they knew they’d win in, knowing full well in advance that eventually they’d loose in the USSC. –
August 20, 2010, 12:34 amI suspect one real reason is that both the federal government and the government of Arizona assumed (and it’s a good assumption) that SCOTUS would reject a motion for leave to file the case.
Another real reason is that SCOTUS is inexperienced and of generally low quality, as a trial court.
Guy says:
I don’t understand what you mean by this, though. Are you saying there wasn’t really federal question jurisdiction in Cohens?
August 20, 2010, 12:38 amcboldt says:
– I don’t understand what you mean by this, though. Are you saying there wasn’t really federal question jurisdiction in Cohens? –
No. I’m saying that the argument “shall have original jurisdiction in cases involving states can’t mean no appellate jurisdiction, ‘every case between a State and its citizens, and, perhaps, every case in which a State is enforcing its penal laws’” That argument falls flat, because the bulk of state penal laws are outside of the subject matter jurisdiction described in the federal constitution.
I just noticed though, in Cohens, SCOTUS seems to be saying that if the case (with the state as a party) could be brought in a federal court, then SCOTUS has exclusive original jurisdiction. It didn’t, in this case, because the issue was a federal lottery operating in contravention to a state law, case tried in a state court.
This statement describes two classes of case; those that can be brought in federal court, and those that cannot.
August 20, 2010, 1:01 amFor the first class, cases that can be brought in federal court, SCOTUS has original jurisdiction. For the other class, cases NOT amenable to federal trial (this is a case involving violation of a state law), SCOTUS would NOT have original jurisdiction. Ahhh, here, in the Court’s own words …
michael H says:
Wouldn’t “original, but not exclusive” mean that the SCOTUS would get priority (dibs, so to speak) on the case, and if they chose not to , they ultimately give permission to lower courts to decide the case.
Whether or not the case must first go to the SCOTUS and if they chose not to accept it the lower court will hear it or if the lower court hears it first unless the SCOTUS choses to take command of the case (so the SCOTUS doesn’t actually have to formally say that it doesn’t want to take the case )is another question.
August 20, 2010, 3:56 amcboldt says:
– Wouldn’t “original, but not exclusive” mean that the SCOTUS would get priority –
August 20, 2010, 7:31 amYes, but not “dibs” in the sense that they must be offered an opportunity (motion for leave to file) by either/any litigant. SCOTUS has priority only in the sense that if it is presented with, and grants a motion requesting that it take up original jurisdiction, then THAT decision is above review. It has “priority.”
IOW, there is no need for permission from SCOTUS to a lower court; the statutory jurisdictional grant of Chapter 85 of Title 28 delineates the scope of original jurisdiction of the federal district courts.
Original jurisdiction in federal district court in this case is asserted as being enabled by 28 USC 1331 (Federal question) and 28 USC 1345 (United States as plaintiff).
cboldt says:
– Are you saying there wasn’t really federal question jurisdiction in Cohens? –
Correcting my brief characterization of the case, defendants below sought to render the state law against lotteries to be unconstitutional, in light of a federal lottery operating in the District of Columbia. It was not that the lottery was in contravention of state law, just that sale of lottery tickets was forbidden in that state, by state law. IOW, neither the state of Virginia nor the defendants made a claim that the DC lottery was unconstitutional, for lottery tickets sold outside of the state of Virginia.
I think the jurisdiction issue before SCOTUS might be stated as whether or not SCOTUS can take an appeal where the loser below asserted and maintained a federal constitutional (or statutory) basis for invalidating a state law. In other words, can defendants manufacture a federal question against state law? Cohens v. Virginia says “yes.”
As for the flavor of federal question here, Cohens is a sort of preemption case. Did the District law enabling a corporation to conduct a District-wide lottery aim to preempt Virginia (and every other state) law?
As for SCOTUS not having original jurisdiction in the Cohens case, but having appellate jurisdiction, the constitutional recitation of controversies involving states (and implying original jurisdiction) is limited.
Cohens v. Virginia is none of those situations. The question is whether or not SCOTUS might have appellate jurisdiction, and that is obtained by finding this to be a case “in Law [or] Equity, arising under this Constitution, [or] the Laws of the United States.”
The DC lottery was found to be enabled by a law of the United States, by act of Congress on 4 May 1812.
I personally don’t think the Cohens case satisfies the subject matter jurisdiction, as it does not “arise under” the federal law. The federal law is being used by defendant in an attempt to invalidate state law. The case arises under state law, not federal law.
August 20, 2010, 8:21 amruuffles says:
Not an area that piques my interest but +1 for a polite discussion of legal issues rather than ideological ranting.
August 20, 2010, 8:42 amMartinned says:
Well, mostly without ideological ranting…
August 20, 2010, 10:00 amAnon21 says:
I was going to point out that litigants don’t pick their judges, but then I kept reading and you were off to the crazy races.
August 20, 2010, 10:39 amZathras says:
The interesting question is how “dibs” would be enforced. Would the Supreme Court be able to issue a writ taking the case from the lower court? Would that writ occur on the Court’s own Motion or on motion of the parties? In any case, enforcing the dibs would be discretionary. The Court could abstain from dibs of course!
August 20, 2010, 10:44 amcboldt says:
– I was going to point out that litigants don’t pick their judges … –
August 20, 2010, 10:49 amIn this case, plaintiff DOJ could have requested a trial before SCOTUS, a federal District Court, and maybe even in an Arizona state court. On the federal side, SCOTUS and the District Court have concurrent original jurisdiction.
In general, defendants may be able to obtain a change in jurisdiction and/or venue as well.
Anon21 says:
Yes, but if you’ll go back and read J.T. Wenting’s loony rant, you’ll see he’s implying that they chose a judge whom they knew would rule in their favor, which is impossible. It’s not like you can say anything intelligible about “the Arizona District Court,” and its position on preemption issues. It all depends on which judge is randomly assigned to the case.
August 20, 2010, 11:02 amcboldt says:
– It all depends on which judge is randomly assigned to the case. –
The US v Arizona case was taken from the judge it was randomly assigned to.
ImmigrationProf Blog: What’s Next for United States v. Arizona
August 20, 2010, 11:08 amruuffles says:
I’ve never heard of this. When was the last time the DOJ or the US sued a state in its own state court?
August 20, 2010, 11:17 amAndrew says:
Chief Justice Fuller dissenting in United States v. Texas (1892):
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE LAMAR, dissenting.
August 20, 2010, 11:21 amMR. JUSTICE LAMAR and myself are unable to concur in the decision just announced.
This Court has original jurisdiction of two classes of cases
Page 143 U. S. 649
only — those affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party.
The judicial power extends to “controversies between two or more states,” “between a state and citizens of another state,” and “between a state, or the citizens thereof, and foreign states, citizens, or subjects.” Our original jurisdiction, which depends wholly upon the character of the parties, is confined to the cases enumerated in which a state may be a party, and this is not one of them.
The judicial power also extends to controversies to which the United States shall be a party, but such controversies are not included in the grant of original jurisdiction. To the controversy here the United States is a party.
We are of opinion, therefore, that this case is not within the original jurisdiction of the Court.
ruuffles says:
I can’t tell from the blog post if the assignment to Judge Wake was in fact random or because he heard the previous AZ immigration law, the one before SCOTUS now. Anyone have insight on whether this initial assignment was a coincidence?
Either way, the re-assignment to Judge Bolton makes sense since she got (randomly?) assigned the other SB1070 challenges. The DOJ did not file the other challenges so presumably it would not have been able to request that those instead be assigned to Judge Wake.
August 20, 2010, 11:22 amBZ says:
Note: there is a difference between case transferral and consolidation. In D.Ariz., the local rules provide that multiple cases on the same topic are transferred to the judge whose case has the lowest number (i.e., was filed first). The plaintiffs filed several cases, but the first (some
looneyconcerned citizen from D.C. who claimed he wanted to travel to Arizona) went to Judge Bolton. Other cases were transferred to her as well, including USA v AZ.The consolidation rules are different. Under the local rules, the cases should be consolidated before the judge who has the case with the greatest significance. Since only one case is proceeding at this point (USA v AZ), it would seem that the consolidation rules would have operated differently.
But in litigation, as in baseball, the tie goes to the runner, and Judge Bolton grabbed the big case and ran with it.
August 20, 2010, 11:34 amMartinned says:
Isn’t that what a Writ of Certiorari was originally for? Wiki says that I remembered it correctly:
August 20, 2010, 11:41 amNot My Leg says:
I don’t think this is actually correct. The question of whether the District Court has jurisdiction to hear this case is a question of the court’s subject matter jurisdiction. As such it is an issue that can never be waived by the parties, and can be raised for the first time at any point during the process, including on appeal. In fact, even if the parties never raise subject matter jurisdiction the court is under a duty to raise the issue sua sponte if it believes it lacks jurisdiction.
August 20, 2010, 11:55 amJay says:
I think you’re conflating the jurisprudence regarding statutory FQ jurisdiction and constitutional FQ jurisdiction. It’s well settled that a case like Cohens doesn’t “arise under” federal law in a sense that would allow its removal to federal district court under 1331/1441 (of course, there are additional issues in that Cohens is a criminal prosecution, rather than a civil case). But that’s because Congress has intentionally passed a more restrictive version of FQ jurisdiction in those statutes than could possibly exist under the constitution. You’re reading the well-pleaded complaint rule back into time to apply to the Constitution as well as to the FQ statute.
Likewise with respect to diversity cases — the constitution allows cases to proceed based on minimal diversity (as long as one party and one defendant are diverse), but s. 1332 requires complete diversity. Congress relaxes this sometimes, as in CAFA.
August 20, 2010, 11:58 amjon says:
There are some academic discussions of using the Supreme Court’s original jurisdiction for just this purpose. See James E. Pfander, Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555 (1994). And if I may be permitted to advertise my own writing — see Jonathan Horne, On Trying and Failing To Resolve Interstate Disputes, 5 N.Y.U. J. L. & Lib. (2011 forthcoming). Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620627
August 20, 2010, 12:27 pmGuy says:
Right, subject-matter jurisdiction only becomes conclusive once final judgment is issued. Though a lack of personal jurisdiction can unravel a final judgment.
August 20, 2010, 1:28 pmGuy says:
That’s an awfully strict reading of “arising under”, and I think it undermines the purpose of having a federal judiciary in the first place. On the whole, I think Cohens‘ reading of what it calls the distributive clause is much more logical than Marbury‘s, albeit slightly more “clever”.
August 20, 2010, 1:32 pmReg Dunlop says:
Perhaps it’s just because the Supreme Court lacks CM-ECF.
August 20, 2010, 1:36 pmcboldt says:
– That’s an awfully strict reading of “arising under”, and I think it undermines the purpose of having a federal judiciary in the first place. –
August 20, 2010, 2:56 pmI might agree in some other case, but not Cohens v. Virginia. My thought is to draw a parallel, say to a Massachusetts lottery, with somebody selling those tickets in Virginia, against Virginia law. The person is charged and tried in Virginia, do they have the ability to use the existence of the (interstate) Massachusetts lottery to render the Virginia ban unconstitutional?
The lottery in Cohens was a District of Columbia (city) lottery. “Void where prohibited.” Defendant argued it was a federal issue, but I don’t agree. Same result either way, judgment below upheld.
Cohens doesn’t expand appellate jurisdiction by finding concurrent original and appellate jurisdiction, either. It cites examples of hypothetical state laws that would implicate the federal constitution or federal law, potentially to be heard by SCOTUS on appeal.
Guy says:
I think the Court got this right, the question isn’t what capacity (national or D.C. legislature) Congress is acting in, the questions are (1) whether Congress intended the law to apply outside its jurisdiction, and (2) if so, whether the law is Constitutional as a necessary and proper exercise of its plenary police authority over D.C.
It could be argued that Congress has no more Constitutional power to legislate outside D.C. under its police power than for a state does outside its territory (and I think that’s probably right), but that doesn’t mean that the laws passed pursuant to its police power over D.C. are stripped of the preemptive effect that federal law usually has, it just means it wouldn’t come up very often. In any event, the Court found Congress had no such intention and avoided the issue, but either way, the Constitution had to be construed to settle the case.
My reading of Cohen, though perhaps I’m mistaken, is that the Court “adjusted” its dicta in Marbury to say that original jurisdiction exists in ambassador cases, controversies between two or more states, between a state and citizens of another state, and between a state and citizens or subjects of another state; and that appellate jurisdiction exists in all federal question, diversity, and United States as a party cases, so that there is sometimes an overlap. The Court maybe leaves open the possibility that there could be original jurisdiction in, say, a controversy between a state and the United States, or in a controversy between a state and its own citizens that arises under federal law, but actually I think they rule that out.
This is because the Court reads the state as a party requirement to mean only those cases where the judicial power exists because a state is a party, and doesn’t include cases where the judicial power exists anyway, even if a state happens to be a party.
August 20, 2010, 3:32 pmgeokstr says:
Perhaps because the Obama administration hasn’t been able to figure out a way to forum shop at the SCOTUS level yet, but give Obama a couple more appointments and that pesky little problem will be taken care of.
August 20, 2010, 3:34 pmAndrew says:
Regarding Fuller’s dissent in United States v. Texas (quoted above), he was 100% correct. The majority simply amended the Constitution to increase its power. Chief Justice Marshall used a very apt word for that in Cohens v. Virginia.
August 20, 2010, 4:09 pmDon says:
The Constitution of the State of Washington initially provided for the state Supreme Court and Superior Courts and later for superior court commissioners and the Courts of Appeal. The Constitution also permits the legislature to create inferior courts, so that provides the legal authority to establish small claims courts and district courts.
As you know, the courts of state of Washington have also created positions called appellate court commissioners and supreme court commissioners who exercise judicial power. These individuals issue rulings, orders, and judgments and yet have no legal or constitutional authority to do so. They do this, in part, to hide cases from public view they don’t want to see the light of day.
As to your point, a plainiff can choose the court into which a case is filed as long as there is jurisdiction in that court and it is to be litigated there absent a provision that permits the defendant to remove it to a different court.
August 20, 2010, 4:12 pmGuy says:
I can’t find in the majority opinion where they even address the issue of original jurisdiction, it seems like they only discuss the extent of the judicial power. Did they just ignore Cohens? Or did they overrule or distinguish it?
August 20, 2010, 4:38 pmAndrew says:
Sure, the majority opinion in US v. Texas devoted lots of space to the jurisdictional question. For example: “We cannot assume that the framers of the Constitution, while extending the judicial power of the United States to controversies between two or more states of the union and between a state of the union and foreign states, intended to exempt a state altogether from suit by the general government.”
In other words: “We cannot assume that the framers meant to not give us absolute power to decide whatever the hell we please.”
August 20, 2010, 4:56 pmGuy says:
Doesn’t the case arise under the Constitution anyway?
Art. IV §3 Cl. 2
I got the impression that they were talking about whether it was a case or controversy in law or equity and whether Texas was immune from suit as a sovereign.
I don’t see how there was original jurisdiction under Cohens, though. I would think it would be appellate only.
I guess they didn’t use that reasoning, though. It’s a pretty ridiculous construction that they adopt.
August 20, 2010, 5:08 pmAndrew says:
“Doesn’t the case arise under the Constitution anyway?”
SCOTUS does not have original jurisdiction over all federal questions. Article III clearly spells out the original jurisdiction of SCOTUS, and it’s very limited.
August 20, 2010, 5:16 pmGuy says:
I agree, but they could have appellate jurisdiction if a lower court had jurisdiction. That’s not what happened here, but I don’t think they expanded the judicial power writ large
August 20, 2010, 5:25 pmAndrew says:
Sure they expanded judicial power. Congress had excepted the case from appellate jurisdiction. It should have been decided in the state courts.
August 20, 2010, 5:40 pmGuy says:
But Congress clearly wanted the dispute resolved by the Supreme Court, and could have provided for the Court to hear that by appeal (and was it excepted? Was there no ability to hear appeal from state courts in all federal questions at that time?) But this is procedural error. I don’t see how the Court was prohibited from reviewing it at all.
August 20, 2010, 5:50 pmAndrew says:
Yeah, Congress could have given SCOTUS appellate jurisdiction in cases where the US and a state are parties, and SCOTUS should have waited for Congress to do it.
August 20, 2010, 6:39 pmDennis says:
I want to know why Arizona didn’t countersue for damages based on all the costs associated with the U.S. government’s failure to enforce the law.
August 20, 2010, 7:12 pmepluribus says:
Maybe because they knew they would lose? It’s bad enough to lose the original suit. It would add insult to injury to lose the countersuit too.
August 20, 2010, 7:57 pmGuy says:
Under what cause of action? State law? Arizona doesn’t get to review the United States’ decisions regarding immigration and naturalization.
August 20, 2010, 8:59 pmBitter Lawyer says:
The position that the Supreme Court has exclusive jurisdiction over the case is untenable both logically and historically. From a logical perspective, Article III Section 1 provides that the judicial power of the United States shall rest with a Supreme Court and in inferior courts that congress has the power to establish. Article III Section II Clause I goes on to define the power (jurisdiction) of the federal judiciary (Supreme Court + Inferior Courts). That includes :
(1) Cases arising under the Constitution, laws of the U.S., and treaties made
(2) Cases affecting Ambassadors, other public ministers and Consuls
(3) Cases of admiralty and maritime Jurisdiction
(4) Cases in which the United States shall be a Party
(5) Controversies between two or more States
(6) Controversies between a State and Citizens of another State
(7) Controveries between Citizens of different States
(8) Controversies between Citizens of the same State claiming Lands under
Grants of different States
(9) Controveries between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects
Article III, Section 2, Clause 2 defines the original and appellate jurisdiction of the Supreme Court. The Constitution does not define the original or appellate jurisdiction of the yet to be created inferior courts. If the grant of the Supreme Courts jurisdiction was exclusive, then Clause 2 obstensibly removed nearly all jurisdiction from the inferior courts just established in clause 1, leaving them only original jurisdiction to hear only (1), (3), (4), and (7). Why would the founders create this power in the inferior courts only to then strip them of the power in the very next paragraph? What happens when the United States sues a State? The Supreme Court has original jurisdiction over the case because a state is a party, but it simultaneously only has appellate jursidiction over the case because the United States is a party.
Article III could be this maze of complex logical fallacies and nonsensical constructions or it could be as simple as Alexander Hamilton explained it in Federalist No. 82:
It appears that Hamilton was in the same court as Wilson, that the legislature was free to define the jurisdiction of the inferior courts so long as it was inferior to the Supreme Court and did not exceed the confines of judicial power laid out in Section 2, clause 1.
All of this nonsense is just another attempt by tea baggers to give their xenophobic views an appearance of credibility.
August 21, 2010, 1:27 pmRangefinder Camera says:
35mm Rangefinder Cameras…
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August 21, 2010, 9:57 pmRagebot says:
It is not clear to me why you think Arizona will lose. I have seen plenty of talking heads say the SCOUS will rule in their favor, and it is not out of the question the 9th will do so as well.
August 22, 2010, 3:02 amAndrew says:
Although this discussion seems to be over and done with, I want to make an additional comment about the Court’s decision in United States v. Texas (mentioned above), in which the Court decided that cases between the United States and a state fall within its original jurisdiction. That case was clearly decided wrongly, IMHO. However, United States v. Texas would not handicap Congress if Congress wishes to make certain exceptions to the types of federal question cases heard by the federal courts (i.e. via “jurisdiction stripping”).
An important factor in United States v. Texas was that there had been an “act of congress requiring the institution of this suit”, as the Court put it. With a few narrow exceptions, courts have consistently held that Congress controls access to the courts by the United States and its agencies and officials. See, e.g., Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 (“Agencies do not automatically have standing to sue for actions that frustrate the purposes of their statutes”). So, if Congress had not required institution of the suit in United States v. Texas, the Court would not have reached the merits.
August 23, 2010, 12:30 amGuy says:
Without commenting on the likelihood of success, I wouldn’t rely on talking heads for legal advice if I were you, there’s a reason that they’re talking heads, and not in a profession that requires knowledge
I don’t know if you’re going to come back and see this, but it occurred to me that, if read one way, Cohens is consistent with United States v. Texas, this is because “United States as a Party” jurisdiction is one of the types of jurisdiction that depends on the status of the parties. Read literally, Cohens seems to suggest that there can be original jurisdiction there if a state is a party.
That is, one way to read Cohens is that original jurisdiction (on the basis of a state party) exists only when the judicial power extends to the case by virtue of the party’s status as a state. Another way to read it is that for original jurisdiction to exist (again, on state-as-a-party basis) then (1) the judicial power must extend to the case on the basis of the status (but not necessarily state status) of the parties, rather than the nature of the suit, and (2) a state must be a party to the suit.
August 23, 2010, 2:18 amAndrew says:
Maybe.
August 23, 2010, 5:08 amConstitutionality of US vs Arizona says:
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