The Judicial Power—Arising Under Clause

The judicial Power shall extend to all Cases . . . arising under this Constitution, [and] the Laws of the United States. . . .

—Arthur D. Hellman

Introduction

Article III, Section 2 delineates the scope of the federal judicial power by listing nine kinds of “Cases” and “Controversies” to which the “judicial Power” of the United States “shall extend.” First in the enumeration and, in the view of Chief Justice John Marshall, “first in the mind of the framers”¹ is the category encompassing “all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” This category is often referred to as the “federal question” jurisdiction, and although the Constitution does not use the term, it is a convenient label. The Framers intended the scope of this provision to be broad. The breadth of the constitutional grant was recognized during the ratification debates and confirmed by decisions of the Marshall Court and its successors.²

The Constitutional Convention

The federal question jurisdiction, in embryonic form, made its first appearance at the Constitutional Convention as part of the Virginia Plan. That proposal would have authorized federal courts to hear “questions which may involve the national peace and harmony.”³ Edmund Randolph of Virginia “observed the difficulty in establishing the powers of the judiciary” but emphasized that one purpose was “to preserve the harmony of states and that of the citizens thereof.”⁴

On July 18, 1787, James Madison of Virginia proposed adding to the Virginia Plan’s language a grant of jurisdiction over “cases arising under laws passed by the general Legislature.”⁵ The proposal passed unanimously, but when the Committee of Detail reported to the Convention on August 6, the reference to “national peace and harmony” had disappeared; only the “arising under” language remained.⁶

The delegates devoted little more time to the federal question jurisdiction. In the course of a single day, on August 27, the Convention made three important changes. The delegates replaced the reference to “laws passed by the Legislature” with “laws of the United States.”⁷ And, on separate motions, the Convention extended the judicial power to cases arising under the Constitution and then to cases arising under treaties.⁸ When the Committee of Style reported to the Convention in September, the provision read substantially the same as the ratified version: The federal judicial power extends “to all cases, both 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.”⁹

Significantly, the evolution of the “arising under” jurisdiction proceeded in parallel with that of the Supremacy Clause. The initial version of the Supremacy Clause was part of the New Jersey Plan. It provided that “Acts” of Congress and “Treaties” of the United States “shall be the supreme law of the respective states.”¹⁰ The New Jersey Plan was not adopted, but on July 17, immediately after the delegates rejected the Virginia Plan’s provision allowing the legislature to “negative” state laws, Luther Martin of Maryland proposed a supremacy provision that closely tracked the one in the New Jersey Plan.¹¹ The proposal was adopted unanimously and appeared in streamlined language in the report of the Committee of Detail.¹²

On August 23, the Convention agreed to an amended version of the provision that accorded supremacy to the Constitution as well as statutes and treaties.¹³ Four days later, on August 27, the Convention made the conforming change in the “arising under” clause. In the end, the Constitution, federal laws, and treaties would be the “supreme law of the land” (See Essay No. 154). And the federal courts would have jurisdiction to hear cases that arise under those three sources of supreme law.

The Ratification Debates

When the proposed Constitution came before the states for ratification, as Anthony Bellia has observed, “the meaning of Article III ‘arising under’ jurisdiction did not dominate [the] debates about the federal judicial power.”¹⁴ Nevertheless, some insights do emerge.

First, the connection between the Supremacy Clause and the Arising Under Clause was recognized both by supporters of ratification and by opponents. For example, Luther Martin, arguing to the Maryland legislature against ratification, insisted that with the Supremacy Clause in force, there was no reason to authorize federal courts to hear cases “that should arise under” federal law.¹⁵ But, he reported, “a majority” at the Convention believed that the supremacy of federal law would be at risk if state judges were “intrusted with the administration of” federal laws.¹⁶

Second, opponents of ratification criticized the potential breadth of the language. For example, during the Virginia ratification convention, George Mason asked rhetorically, “What objects will not this expression extend to?”¹⁷ James Madison, a supporter of ratification, implicitly responded the following day, asserting that “the judicial power [of the national government] should correspond with the legislative [power].”¹⁸ More broadly, Edmund Randolph emphasized the need for federal courts to enforce federal law, particularly to prevent encroachments by the states.¹⁹

Third, supporters of ratification emphasized that the jurisdictional grant would empower federal judges to strike down Acts of Congress that were “inconsistent with the Constitution.”²⁰ Opponents agreed that the provision conferred that authority, but they argued that the jurisdictional grant—particularly for cases arising under the Constitution—would lead, in the words of the Anti-Federalist Brutus, to “an entire subversion of the legislative, executive and judicial powers of the individual states.”²¹

Finally, as Hamilton explained in Federalist No. 80, the “arising under” jurisdiction was viewed as an essential means for securing uniformity in the interpretation of federal law.²²

Judicial Construction: The Marshall Court

When does a case “arise under” federal law so that it falls within the judicial power of the United States? The authoritative answer to this question is found largely in two decisions by Chief Justice Marshall in the 1820s.

The first, Cohens v. Virginia (1821), involved a challenge to the authority of the U.S. Supreme Court to review a case originating in state court.²³ The defendants were convicted of a crime under state law. They claimed that those state offenses were preempted, or trumped, by the supreme federal law.²⁴ When the state’s highest court rejected their argument, they asserted that the Supreme Court could consider their appeal, both because an Act of Congress allowed it,²⁵ and because it was a case “arising under” federal law within the meaning of Article III. Virginia countered that a case could “arise under” federal law only if the party who initiated the lawsuit invoked that federal law.²⁶ This was a state criminal prosecution that did not meet this standard.

The state’s interpretation is a plausible reading of the Arising Under Clause, but the Supreme Court rejected it as “too narrow.”²⁷ Marshall said that cases are defined by the rights of both parties, not just the plaintiff who filed the suit. Thus, a case “may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either.”²⁸ Under Cohens, the Supreme Court has jurisdiction to hear appeals from state courts when those courts have decided federal questions.

The second and better-known decision is Osborn v. Bank of the United States (1824).²⁹ Marshall’s analysis proceeded in two steps. First, he declared that a “question” is “federal” if “the title or right set up by the party, may be defeated by one construction of the Constitution or law of the United States, and sustained by the opposite construction. . . .”³⁰ In other words, a federal question is a question whose answer depends in some way on federal law. Second, Marshall stated that a case “arises under” the Constitution or laws of the United States if a federal question “forms an ingredient of the original cause”—that is, if the question is an element of the plaintiff’s claim.³¹

The breadth of this definition is made clear by a companion case argued together with Osborn and decided the following day. This was Bank of the United States v. Planters’ Bank of Georgia (1824).³² In this case, the Bank of the United States brought a suit against a state bank. The defendant bank’s liability depended entirely on state law. Nevertheless, the Court upheld the jurisdiction, saying simply that the jurisdictional issue “was fully considered” in Osborn and required no further discussion.

How did Marshall conclude that a federal question formed an “ingredient” of the “original cause”? Marshall explained in Osborn that there are some federal questions that necessarily exist in every case brought by the bank.³³ These questions include the bank’s capacity to sue in federal court. Osborn thus establishes that as long as a proposition of federal law is a logical antecedent of the plaintiff’s claim, it is sufficient as a constitutional matter to support federal judicial power over the case.

Removal to Federal Court

Cohens and Osborn provide two complementary tests for defining the “arising under” jurisdiction, each targeted to a different situation. Cohens is concerned with the Supreme Court’s appellate jurisdiction over cases initially litigated in state courts. Osborn provides the test for cases in which the plaintiff seeks entry to a federal trial court.

But there is a third possibility. From the beginning, Congress has authorized a process by which a case can be removed from state court by the defendant to be litigated in federal court. If a federal question is an ingredient of the plaintiff’s claim, the Osborn test, of itself, would allow the removal: Nothing in the definition turns on which party is seeking entry to federal court. But suppose the plaintiff’s claim is grounded solely in state law and the federal question is raised by the defendant. The case would not fall within the Osborn test, nor would it meet the Cohens test: At the time of removal, there is no way to know whether the federal question will be dispositive.

In a series of nineteenth-century cases, the Supreme Court made plain that Article III empowers Congress to authorize removal of any case in which a defense under federal law has been invoked, even though the federal issue may prove not to be dispositive. The leading case is Tennessee v. Davis (1880).³⁴ In Davis, a federal revenue agent was prosecuted for killing one of several armed men who fired on him as he attempted to enforce federal revenue laws. A federal statute allowed removal based on his federal defense, and the Court, relying heavily on Cohens, held that the statute was constitutional. The Court emphasized that in order to preserve the supremacy of federal judicial power, it is essential that the national government be able to “take control” “whenever and wherever a case arises under the Constitution and laws or treaties of the United States . . . whether it be civil or criminal, in any stage of its progress.”³⁵

Settled Law and Open Questions

The Supreme Court decisions summarized above have established that Congress can authorize federal courts to hear cases based on the Arising Under Clause under three circumstances: when a federal question is a logical antecedent of the plaintiff’s claim, regardless of whether that question is contested; when the federal question is the basis of a defense actually raised, even though the defense may not be dispositive; and when the federal question is the basis of the decision actually made, typically by a state court.

Relying on the Court’s decisions, Congress has deployed the jurisdiction in numerous statutes, creating a complex body of law that is made more complex by judicial interpretation.³⁶ Meanwhile, other constitutional issues remain unresolved:

Can Congress authorize jurisdiction over cases in which federal interests may be involved but a federal question is an element neither of the original cause nor of the defense—for example, a case in which a litigant is a member of a class that Congress seeks to protect, such as federal employees sued in state court?³⁷

Osborn is sometimes read as allowing jurisdiction based on the mere possibility that a federal question will be presented.³⁸ Is that a correct reading, and should the Court go that far?

Article III provides that the federal judicial power “shall extend to all cases . . . arising under [federal law].” Does this mean that Congress must authorize “some federal court . . . to hear and resolve finally any given federal question [case]?”³⁹ Or can Congress leave final resolution of some federal-question cases to state courts?⁴⁰

1. John Marshall, A Friend of the Constitution, in John Marshall’s Defense of McCulloch v. Maryland 155, 203–04 (Gerald Gunther ed., 1969) (1819). ↩︎
2. Arthur D. Hellman, The Federal Question Jurisdiction Under Article III: “First in the Minds of the Framers,” But Today, Perhaps, Falling Short of the Framers’ Expectations, 104 B.U. L. Rev. 2143 (2024). ↩︎
3. 1 Farrand’s 22. ↩︎
4. Id. at 238. ↩︎
5. 2 Farrand’s 39, 46. ↩︎
6. Id. at 186. ↩︎
7. Id. at 431. ↩︎
8. Id. at 430, 431. ↩︎
9. Id. at 600 ↩︎
10. 1 Farrand 245. ↩︎
11. 2 Farrand 27–28; 3 Farrand’s 286–87. ↩︎
12. 2 Farrand’s 183. ↩︎
13. Id. at 381–82, 389. ↩︎
14. Anthony J. Bellia, Jr., The Origins of Article III “Arising Under” Jurisdiction, 57 Duke L.J. 263, 305 (2007). ↩︎
15. 3 Farrand’s 206. ↩︎
16. Id. at 207. ↩︎
17. 3 Elliot’s 521. ↩︎
18. Id. at 532. ↩︎
19. Id. at 570. ↩︎
20. 2 Elliott’s 489. ↩︎
21. Storing 2.9.139. ↩︎
22. Bellia, supra at 316. ↩︎
23. 6 Wheat (19 U.S.) 264 (1821). ↩︎
24. Id. at 375. ↩︎
25. Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 73, 85. ↩︎
26. Id. at 378–79. ↩︎
27. Id. at 379. ↩︎
28. Id. ↩︎
29. 22 U.S. (9 Wheat.) 748 (1824). ↩︎
30. Id. at 822. ↩︎
31. Id. at 823. ↩︎
32. 22 U.S. (9 Wheat.) 904 (1834). ↩︎
33. Osborn, 22 U.S. at 823–24. ↩︎
34. 100 U.S. 257 (1880). ↩︎
35. Id. at 266 (emphasis added). ↩︎
36. Hellman, supra. ↩︎
37. Mesa v. California, 489 U.S. 121 (1989). ↩︎
38. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 492 (1983). ↩︎
39. Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 206 (1985) (emphasis added). ↩︎
40. Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1372–73, 1401 (1953). ↩︎