Article III, Section 2, Clause 1 — Federal Question Jurisdiction

ArtIII.S2.C1.11.1 Overview of Federal Question Jurisdiction

The Constitution authorizes the federal courts to exercise jurisdiction over all cases “arising under” the Constitution or the laws or treaties of the United States. The federal courts’ power to hear such cases is often referred to as “arising under” jurisdiction or “federal question” jurisdiction.¹ The Supreme Court has explained that a case arises under the Constitution or laws of the United States “whenever its correct decision depends on the construction of either.”²

ArtIII.S2.C1.11.2 Historical Background on Federal Question Jurisdiction

Near the beginning of the Constitutional Convention, the delegates expressed an intent to create a Federal Judiciary with jurisdiction to hear cases arising under federal statutory law.¹ Federal jurisdiction over cases involving the Constitution and treaties was added to drafts of Article III later in the Convention.² Even as the Framers planned to vest federal question jurisdiction in the federal courts, they generally accepted that state courts would play a significant role in interpreting and applying federal law and did not make the constitutional grant of jurisdiction over cases arising under federal law exclusive to the federal courts.³ On the other hand, the Framers entertained concerns about whether state courts would apply federal law correctly, uniformly, and without bias.⁴ To mitigate those concerns, the Constitution allowed for Supreme Court appellate review of state judicial decisions involving issues related to federal treaties, statutes, or constitutional law.⁵ The Constitution also granted Congress discretion to establish lower federal courts, which could consider questions arising under the Constitution or federal law or treaties in the first instance.⁶

In the Federalist Papers, Alexander Hamilton explained that the grant of federal question jurisdiction in Article III was based on the “obvious consideration that there ought always to be a constitutional method of giving efficacy to constitutional provisions.”⁷ Specifically, he argued, “restrictions on the authority of the state legislations” must rest upon either “a direct negative on the state laws, or an authority in the federal courts, to overrule such as might be in manifest contravention of the articles of union.”⁸ Hamilton noted that the Framers had adopted the latter approach of authorizing enforcement by the federal courts, which he “presume[d] will be most agreeable to the states.”⁹

The Constitution vests federal judicial power in “one supreme Court” and any lower federal courts that Congress creates.¹⁰ The Constitutional provisions authorizing the establishment of lower federal courts and the grant of federal question jurisdiction to those courts are not self-executing, but instead had to be implemented (if at all) through federal legislation.¹¹ In the Judiciary Act of 1789, Congress created lower federal courts but did not grant them general federal question jurisdiction.¹² This meant that litigants could sue in state court to enforce rights under the Constitution or a federal law or treaty, then appeal to the U.S. Supreme Court if the state courts rejected a federal constitutional challenge to a state law or held invalid a federal law or treaty.¹³ In the late eighteenth century, Congress enacted statutes granting the lower federal courts jurisdiction over selected cases arising under federal law, such as suits relating to patents.¹⁴

Broader statutory grants of federal question jurisdiction were enacted in the nineteenth century. Following the Civil War, Congress granted the federal courts jurisdiction over civil rights cases, seeking to protect newly created federal civil rights.¹⁵ The current statutory grant of federal jurisdiction over civil rights cases is codified at 28 U.S.C. § 1343, which authorizes the district courts to hear civil actions including suits to redress the deprivation “under color of any State law,” of any “right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States,” and suits “[t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”¹⁶ Plaintiffs frequently rely on Section 1343 to bring suits in federal court under 42 U.S.C. § 1983, challenging state and local governmental practices including racial discrimination, electoral malapportionment and suffrage restrictions, unconstitutional police practices, and state restrictions on access to welfare and other public assistance.¹⁷

In 1875, Congress enacted legislation conferring general federal question jurisdiction on the lower federal courts.¹⁸ The 1875 statute included an amount in controversy requirement, creating federal court jurisdiction over federal question suits only if the plaintiff sought money damages of more than five hundred dollars. Since that time, Congress has expanded the availability of general federal question jurisdiction by repealing the amount in controversy requirement.¹⁹ Additional statutory provisions grant the federal courts subject matter jurisdiction to enforce federal law in specific areas.²⁰

ArtIII.S2.C1.11.3 Constitutional and Statutory Grants of Federal Question Jurisdiction

The federal courts’ authority to hear federal question cases is rooted in both constitutional text and a number of implementing statutes.¹ The Constitution authorizes the Federal Judiciary to hear “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.”² The Supreme Court held in the 1821 case Cohens v. Virginia that a case “arises under” the Constitution or laws of the United States “whenever its correct decision depends on the construction of either,” and that cases arising under federal law include all cases that “grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.”³

Congress also plays a role in conferring federal question jurisdiction. The Constitution vests federal judicial power in “one supreme Court” and any lower federal courts that Congress creates.⁴ When Congress creates lower federal courts, it generally also specifies (either then or in a separate statute) what portions of the federal judicial power those courts may exercise.⁵ In Osborn v. Bank of the United States, decided three years after Cohens, the Court explained that the “arising under” clause in Article III “enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it.”⁶ Writing for the Court, Chief Justice John Marshall opined, “when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give the [lower federal courts] jurisdiction of that cause, although other questions of fact or of law may be involved in it.”⁷ Thus, although the Constitution grants the Judiciary as a whole the power to adjudicate federal questions, it generally leaves to Congress the authority to confer that jurisdiction on specific federal courts.⁸

Within that constitutional framework, the current general federal question statute, 28 U.S.C § 1331, grants the federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”⁹ Additional statutes grant the federal courts jurisdiction over certain specific categories of cases arising under the Constitution and federal law.¹⁰ Although the language of Section 1331 is similar to the constitutional text authorizing the grant of federal question jurisdiction, the Supreme Court has held that the statutory grant of jurisdiction in Section 1331 is narrower than the full authority Congress might choose to confer consistent with the constitutional authorization.¹¹ In a 2016 case, the Court explained that it

has long read the words “arising under” in Article III to extend quite broadly, “to all

cases in which a federal question is ‘an ingredient’ of the action.” . . . In the statutory

context, however, we opted to give those same words a narrower scope “in the light of [§

1331’s] history[,] the demands of reason and coherence, and the dictates of sound

judicial policy.”¹²

Because cases that fall within the narrower statutory grant of federal question jurisdiction also fall within the broader constitutional grant, most court cases considering the scope of federal question jurisdiction focus on application of the relevant jurisdictional statute and do not reach constitutional questions.¹³

In determining whether a case satisfies the general federal question statute, courts ask whether a federal question appears in the plaintiff ’s “well-pleaded complaint.”¹⁴ This means that, as a statutory matter, the existence of a federal question depends on the actual claims that the plaintiff raises, and the existence of an actual or potential defense to liability based on federal law is not sufficient to establish federal question jurisdiction.¹⁵ This is an example of when statutory federal question jurisdiction is less than the constitutional maximum, which can include cases involving only a federal defense.¹⁶

The Supreme Court has explained that most cases subject to arising under jurisdiction “are covered by Justice [Oliver Wendell] Holmes’ statement that a ‘suit arises under the law that creates the cause of action,’” meaning that “the vast majority” of federal question cases raise claims based directly on federal law.¹⁷ Less often, a case may arise under the laws of the United States “if a well-pleaded complaint establishe[s] that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.”¹⁸ For instance, in Smith v. Kansas City Title & Trust Co., the Court held that federal question jurisdiction existed in a state law suit by a shareholder claiming that a corporation could not lawfully buy certain federal bonds because the issuance of the bonds was unconstitutional.¹⁹

As a matter of both constitutional scope and statutory authority, federal question jurisdiction is not limited to suits originally filed in federal court. Beginning with the enactment Section 25 the Judiciary Act of 1789, Congress has granted the Supreme Court jurisdiction to review decisions of the states’ highest courts when those decisions involve certain issues arising under the Constitution, treaties, or federal law.²⁰ The Supreme Court upheld Section 25 against a constitutional challenge in Martin v. Hunter’s Lessee.²¹ In addition, as explained in more detail in a later section, if a plaintiff files a case subject to federal court jurisdiction in state court, the defendant may elect to remove the case to federal court.²² Once the federal courts have jurisdiction over a case, they have the authority to decide any issue necessary to the disposition of the case, including questions of law or fact that do not arise under federal law.²³

ArtIII.S2.C1.11.4 Substantive Claims and Defenses in Federal Question Cases

Federal question jurisdiction is the basis for many of the Supreme Court’s high-profile cases. In particular, federal question cases may involve claims of an actual or threatened invasion of the plaintiff ’s constitutional rights by some act of public authority. The “arising under” clause thus provides the main textual basis for the implied power for federal courts to review the constitutionality of legislation and other government actions.¹

There are multiple types of legal claims that may give rise to federal question jurisdiction.² Congress often creates federal question jurisdiction by enacting legislation creating substantive legal rights or obligations and explicitly granting the courts jurisdiction to enforce them.³ Sometimes this jurisdiction is exclusive. For instance, the federal courts have exclusive jurisdiction over federal criminal cases and cases arising under bankruptcy, antitrust, or copyright law.⁴ In other areas, Congress allows both state and federal courts to hear cases based on federal statutes.⁵ For example, 28 U.S.C. § 1343 grants the federal courts jurisdiction over civil rights claims arising under the Constitution or federal law, including claims under 42 U.S.C. § 1983,⁶ but state courts may also hear such claims.⁷

Federal question cases may also arise under treaties to which the United States is a party. The Supreme Court has held that some treaties are “self-executing” and thus “directly enforceable as domestic law in our courts,” while others are not.⁸ If a treaty is not self-executing, Congress must enact legislation to implement the treaty before it can be enforced in U.S. court.⁹

In addition, the constitutional judicial power of federal courts extends to cases arising under judge-made legal doctrines. One example of this is cases involving federal common law. “Common law” refers to legal rules drawn from judicial decisions, rather than a statute or constitution.¹⁰ Although the Supreme Court famously announced in Erie Railroad v. Tompkins that “[t]here is no federal general common law,”¹¹ it is well settled that there are some areas where courts apply federal common law, and the Supreme Court has held that the federal courts have the power to hear federal common law claims.¹² Federal courts primarily create and apply federal common law in two circumstances: where a federal rule of decision is necessary to protect uniquely federal interests, or where Congress has given the courts the power to develop substantive law.¹³

A related example of judge-made law that raises constitutional issues subject to federal question jurisdiction is the doctrine articulated in Bivens v. Six Unknown Named Agents.¹⁴ Bivens and its progeny allowed individuals to sue federal agents directly under the Constitution without a federal statute authorizing relief.¹⁵ More recent Supreme Court cases have construed Bivens narrowly.¹⁶

Other times, federal question jurisdiction exists even though the case, as originally filed, includes only state law civil claims or criminal charges. For instance, a state law civil claim may be filed in federal court, or removed from state to federal court before trial, if a “right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.”¹⁷ In other cases, litigation based on state law questions may proceed through the state courts before receiving federal court review. This often occurs in cases where a civil or criminal defendant invokes the Constitution or a federal statute as a defense to liability. Under the general federal question statute, the federal district courts do not have statutory jurisdiction to hear those cases in the first instance.¹⁸ However, they fall within the constitutional bounds of federal question jurisdiction,¹⁹ and Congress has granted the Supreme Court statutory jurisdiction to hear such cases on appeal from a decision of a state’s highest court.²⁰ A number of high-profile cases have come to the Supreme Court in this way. For instance, the First Amendment case New York Times v. Sullivan involved a state law libel claim that was originally litigated in the Alabama courts.²¹ Likewise, Lawrence v. Texas, in which the Court struck down a state law banning consensual sexual activity between people of the same sex, was an appeal to the U.S. Supreme Court from a state criminal conviction.²²

Both constitutional and statutory federal question jurisdiction may also exist based on the identity of a party, particularly when a party has sufficiently close ties to the federal government.²³ The Constitution specifically grants federal courts jurisdiction over “Controversies to which the United States shall be a Party,” but those cases may also be understood to fall within federal question jurisdiction.²⁴ The federal courts have statutory jurisdiction over suits where the United States itself is either a plaintiff or a defendant.²⁵ Similarly, federal statutes authorize the removal to federal court of certain state law civil and criminal claims against federal officers or other persons acting pursuant to federal authority.²⁶ The Supreme Court rejected a constitutional challenge to the removal of claims against federal revenue officers in Tennessee v. Davis, explaining that federal court jurisdiction over such cases implicated the federal government’s fundamental interest in “preserving its own existence” against state proceedings that might undermine federal authority.²⁷

Article III also allows Congress to grant federal court jurisdiction in cases involving federally chartered corporations, such as banks or railroads. In Osborn v. Bank of the United States, Chief Justice John Marshall held that Congress’s authorization for the Bank of the United States to sue and be sued also granted the federal courts jurisdiction over all cases to which the bank was a party.²⁸ Similarly, in the Pacific Railroad Removal Cases, the Court held that tort actions against railroads with federal charters could be removed to federal courts solely based on federal incorporation.²⁹ In a 1992 case, American National Red Cross v. S. G., the Court held that when a federal statutory charter expressly mentions the federal courts in a provision allowing an entity to sue and be sued, the charter creates federal question jurisdiction over such suits.³⁰ Congress has enacted legislation limiting the extent to which some federally chartered corporations can sue or be sued in federal court based solely on federal incorporation.³¹

Federal question cases usually involve the application of federal substantive law, whether as the direct basis for a claim or defense or as a substantial legal question that may determine rights under state law. Some scholars and advocates take an expansive view of constitutional federal question jurisdiction under a theory known as “protective jurisdiction,” arguing that Congress has the constitutional power to confer federal jurisdiction over claims based entirely on state law.³² They posit that in areas where Congress has the authority to legislate pursuant to one of its enumerated powers,³³ it could enact a jurisdictional statute that creates no new substantive federal legal rights or obligations.³⁴ The jurisdictional statute would itself be the law of the United States within the meaning of Article III, and would validly create federal question jurisdiction, even though Congress enacted no substantive rule of decision. The Supreme Court has declined to adopt the doctrine, instead finding other bases for federal court jurisdiction in cases where it might apply.³⁵

ArtIII.S2.C1.11.5 Removal from State Court to Federal Court

The Constitution’s grant of federal question jurisdiction over cases “arising under” the Constitution, laws, and treaties of the United States extends to some cases filed in state court. Congress has provided that a state court defendant may remove a case to federal court if the case could originally have been brought in federal court.¹ The current general removal statute is codified at 28 U.S.C. § 1441, and additional statutes authorize removal in specific circumstances.²

In Martin v. Hunter’s Lessee, the Supreme Court likened removal before trial to federal appellate review of state court judgments, asserting that both served the purposes of promoting fairness and ensuring the uniform interpretation of federal law.³ Decades later, in Chicago & N.W. Railway v. Whitton’s Administrator, the Court upheld a removal statute against a constitutional challenge.⁴ The Court expressed “doubt” as to whether removal before trial “can properly be called an exercise of appellate jurisdiction,” stating that removal might “more properly be regarded as an indirect mode by which the Federal court acquires original jurisdiction of the causes.”⁵ However, noting that both state and federal courts had frequently recognized the constitutionality of removal statutes, the Court concluded that, except where the Constitution expressly specifies original or appellate jurisdiction, Congress has discretion to legislate “the manner and conditions upon which [the federal judicial power] shall be exercised.”⁶

In Tennessee v. Davis, the Court considered the constitutionality of a statute that allowed removal to federal court of state court civil or criminal proceedings against any federal revenue officer “on account of any act done under color of his office or of any [federal revenue] law.”⁷ The Court explained that federal court jurisdiction over such cases implicated the federal government’s fundamental interest in “preserving its own existence,” preventing states from undermining federal policies by prosecuting federal agents.⁸ The Court stated, “Cases arising under the laws of the United States are such as grow out of the legislation of Congress, [whether] they constitute th[e] right or privilege, or claim or protection, or defence of the party, in whole or in part.”⁹ It held that the Constitution’s grant of federal question jurisdiction extended to the protection of federal agents performing their official duties, and that the removal statute was a valid grant of federal question jurisdiction under the Necessary and Proper Clause.¹⁰

The modern analog to the federal officer removal statute at issue in Davis is codified in 28 U.S.C. § 1442.¹¹ The Supreme Court has construed that statute broadly to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.¹² The Court has interpreted other removal statutes, such as the civil rights removal statute, more narrowly.¹³

ArtIII.S2.C1.11.6 Supplemental Jurisdiction

A single case may simultaneously involve claims that give rise to federal court jurisdiction and claims that, standing alone, would not. The federal courts may often consider both sets of claims together under the doctrine of supplemental jurisdiction. The doctrine is grounded in the broad interpretation of Article III jurisdiction articulated in Osborn v. Bank of the United States, where Chief Justice John Marshall explained that the Constitution grants the federal courts jurisdiction when a federal question “forms an ingredient of the original cause, . . . although other questions of fact or of law may be involved in it.”¹ Supreme Court cases and federal legislation identify circumstances in which federal courts may exercise supplemental jurisdiction to hear claims over which they would not otherwise have jurisdiction, including state law claims between non-diverse parties.²

One form of supplemental jurisdiction, also called ancillary jurisdiction, pendent jurisdiction, or pendent claim jurisdiction, exists when a claim that would not otherwise be subject to federal court jurisdiction arises from the same set of facts as a claim that is subject to federal court jurisdiction.³ Some sources use the term pendent jurisdiction to refer to cases where related federal and non-federal claims appear in a plaintiff ’s complaint.⁴ By contrast, ancillary jurisdiction may refer to cases where a complaint raises one or more claims subject to federal court jurisdiction, then a defendant responds by raising compulsory counterclaims that would not independently meet the jurisdictional requirements.⁵

The doctrine of ancillary jurisdiction has its roots in the 1861 case Freeman v. Howe.⁶ Freeman involved federal court proceedings related to the seizure of rail cars. The original parties were from different states, and the case proceeded in federal court pursuant to diversity jurisdiction. Other parties who did not satisfy the requirements for diversity jurisdiction then sought to intervene and assert rights to the seized property. The Supreme Court held that the federal courts could hear claims from the non-diverse parties, stating that an equitable claim like those at issue “is not an original suit, but ancillary and dependent, supplementary merely to the original suit, . . . and is maintained without reference to the citizenship or residence of the parties.”⁷

By contrast, in Kokkonen v. Guardian Life Ins. Co., the Court held that the federal courts lacked ancillary jurisdiction to hear state law breach of contract claims related to a settlement agreement that resolved earlier federal court litigation.⁸ Justice Antonin Scalia’s majority opinion identified two purposes of ancillary jurisdiction: “to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent,” or “to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.”⁹ The Court held that federal jurisdiction over the breach of contract claims would not serve those purposes.

With respect to pendent jurisdiction over state and federal claims contained in a single complaint, the Supreme Court in Siler v. Louisville & Nashville R.R. considered whether federal courts could exercise jurisdiction over a case involving federal constitutional claims and claims under state law.¹⁰ The court explained that the constitutional claims gave rise to federal court jurisdiction, and thereafter the federal court could “decide all the question[s] in the case, even though it decided the Federal questions adversely to the party raising them,” and even if it declined to decide the federal questions and instead resolved the case on state law grounds.¹¹

The Supreme Court articulated a test for when courts should exercise pendent jurisdiction in the 1933 case Hurn v. Oursler.¹² In that case, the Court distinguished between “a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question”—which was subject to ancillary jurisdiction—and “a case where two separate and distinct causes of action are alleged, one only of which is federal in character” —which was not.¹³

Lower federal courts had difficulty applying the rule in Hurn, and several decades later the Court articulated a new test in United Mine Workers v. Gibbs.¹⁴ Stating that courts applying Hurn had been “unnecessarily grudging” in hearing pendent claims, the Court explained:

Pendent jurisdiction, in the sense of judicial power, exists whenever there is [a federal

question claim], and the relationship between that claim and the state claim permits

the conclusion that the entire action before the court comprises but one constitutional

“case.”¹⁵

To warrant the exercise of pendent jurisdiction, “[t]he state and federal claims must derive from a common nucleus of operative fact.”¹⁶ But if the federal issues are substantial and plaintiff ’s federal and state claims “are such that he would ordinarily be expected to try them all in one judicial proceeding, then . . . there is power in federal courts to hear the whole.”¹⁷ Although the Gibbs Court held that the “judicial power” under the Constitution allowed for pendent jurisdiction in a large class of cases, the Court also emphasized that federal courts could properly decline to exercise that power over state claims based on “considerations of judicial economy, convenience and fairness to litigants,” as well to foster comity between federal and state courts.¹⁸

Pendent jurisdiction does not exist if a plaintiff ’s federal claim is insubstantial or patently without merit.¹⁹ The Supreme Court has also held that when the Eleventh Amendment bars a federal claim against state officials, federal courts may not exercise jurisdiction over pendent state law claims.²⁰ If a federal claim is substantial enough to confer jurisdiction but is dismissed before trial, or if a pendent state law claim substantially predominates, a federal court may be justified in dismissing the state claim.²¹ However, there is no requirement that federal courts resolve cases involving both federal and state law claims on federal grounds when possible.²² On the contrary, the doctrine of constitutional avoidance counsels that federal courts should not decide federal constitutional claims if they can avoid doing so, meaning that it may be an abuse of discretion for a federal court to reach a federal constitutional question when it could decide a case on state law grounds.²³

The foregoing cases considered when federal courts may exercise supplemental jurisdiction over claims over which they would not otherwise have jurisdiction. A related doctrine, sometimes called pendent party jurisdiction, allows the federal courts to hear claims involving parties who might not otherwise be subject to federal subject matter jurisdiction.²⁴

In 1978, in Owen Equipment & Erection Co. v. Kroger, the Supreme Court announced a limit on pendent party jurisdiction, holding that a plaintiff could not amend her complaint to add a claim against a third-party defendant that was a resident of the plaintiff ’s home state.²⁵ The Court again limited pendent party jurisdiction in the 1989 case Finley v. United States.²⁶ Justice Antonin Scalia’s majority opinion in Finley declined to disturb the doctrine of pendent claim jurisdiction laid out in Gibbs, and explicitly acknowledged that pendent party jurisdiction also fell within the constitutional grant of federal judicial power. However, the Court declined to “read jurisdictional statutes broadly” in support of pendent party jurisdiction.²⁷ The majority emphasized that its holding, based on application of the jurisdictional statutes, “can of course be changed by Congress.”²⁸

The following year, Congress enacted legislation that expressly granted the federal courts pendent party jurisdiction.²⁹ Codified at 28 U.S.C. § 1367, the statute provides that, subject to certain limitations, once the federal district courts have jurisdiction over a case, they “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” including “claims that involve the joinder or intervention of additional parties.”³⁰ Section 1367(b) codified the holding in Owen Equipment imposing limits on the federal courts’ ability to exercise supplemental jurisdiction over certain claims by plaintiffs against non-diverse defendants.³¹ More generally, the Supreme Court has explained that Section 1367 “codified [the] principles” of Gibbs and related cases in a supplemental jurisdiction statute that “combines the doctrines of pendent and ancillary jurisdiction under a common heading.”³²