Federal Desk BookConstitution Annotated

Article III, Section 2, Clause 1 — Controversies Between Two or More States

Article III, Section 2, Clause 1

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.

Essays on this page (6)

ArtIII.S2.C1.14 Controversies Between Two or More States

ArtIII.S2.C1.14.1 Historical Background on Controversies Between Two or More States

The extension of federal judicial power to controversies between states and the vesting of original jurisdiction in the Supreme Court of suits to which a state is a party had its origin in experience. Prior to independence, disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under Article IX of the Articles of Confederation, Congress was made “the last resort on appeal” to resolve “all disputes and differences . . . between two or more States concerning boundary, jurisdiction, or any other cause whatever,” and to constitute what in effect were ad hoc arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten states.1 It is hardly surprising, therefore, that during its first sixty years the only state disputes coming to the Supreme Court were boundary disputes2 or that such disputes constitute the largest single number of suits between states. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization, other types of cases have occurred with increasing frequency.

Notes
  1. C. Warren, The Supreme Court and Disputes Between States, 34 BULL. OF WILLIAM AND MARY, NO. 4 (1940), 7–11. For a more comprehensive treatment of background as well as the general subject, see C. WARREN, THE SUPREME COURT AND THE SOVEREIGN STATES (1924). ↩
  2. WARREN, supra note 1, at 13. However, only three such suits were brought in this period, 1789–1849. During the next ninety years, 1849–1939, at least twenty-nine such suits were brought. Id. at 13, 14. ↩

ArtIII.S2.C1.14.2 Boundary Disputes Between States

Among the earlier suits between states, the suit between New Jersey and New York1 is significant for applying a rule laid down earlier in Chisholm v. Georgia (i.e., that the Supreme Court may proceed ex parte if a state refuses to appear when duly summoned). The long drawn out litigation between Rhode Island and Massachusetts is also significant for its rulings: that, although the Constitution does not extend the judicial power to all controversies between states, it does not exclude any;2 that a boundary dispute is a justiciable and not a political question;3 and that a prescribed rule of decision is unnecessary in such cases. On the last point, Justice Henry Baldwin stated:

The submission by the sovereigns, or states, to a court of law or equity, of a controversy

between them, without prescribing any rule of decision, gives power to decide

according to the appropriate law of the case (11 Ves. 294); which depends on the

subject-matter, the source and nature of the claims of the parties, and the law which

governs them. From the time of such submission, the question ceases to be a political

one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be

decided by its judgment, legal discretion and solemn consideration of the rules of law

appropriate to its nature as a judicial question, depending on the exercise of judicial

power; as it is bound to act by known and settled principles of national or municipal

jurisprudence, as the case requires.4

Notes
  1. New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1831). ↩
  2. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838) ↩
  3. 37 U.S. at 736–37. ↩
  4. Id. at 737. Chief Justice Roger B. Taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. Id. at 752–53. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two states, to which neither state is a party, does not come within the original jurisdiction of the Supreme Court. Fowler v. Lindsey, 3 U.S. (3 Dall.) 411 (1799). For recent boundary cases, see United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985); United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S. 93 (1985); United States v. Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497 U.S. 336 (1990); Mississippi v. Louisiana, 506 U.S. 73 (1992). ↩

ArtIII.S2.C1.14.3 Modern Suits Between States

Beginning with Missouri v. Illinois & Chicago District,1 which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like, have been a source of suits between states. Such suits have been especially frequent in the western states,2 where water is in short supply, but they have not been confined to any one region.3 In Kansas v. Colorado,4 the Court established the principle of the equitable division of river or water resources between conflicting state interests.5

In the 1931 case, New Jersey v. New York,6 New Jersey sought to enjoin New York for diverting water into the Hudson River watershed for New York’s use in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and harm the saline contents of the Delaware River. Justice Oliver Wendell Holmes, writing for the majority, explained:

A river is more than an amenity, it is a treasure. It offers a necessity of life that must be

rationed among those who have power over it. New York has the physical power to cut

off all the water within its jurisdiction. But clearly the exercise of such a power to the

destruction of the interest of lower States could not be tolerated. And on the other hand

equally little could New Jersey be permitted to require New York to give up its power

altogether in order that the river might come down to it undiminished. Both States

have real and substantial interests in the River that must be reconciled as best they

may.7

In Florida v. Georgia, the Supreme Court issued two opinions concerning how to apportion water from an interstate river basin known as the Apalachicola-Chattahoochee-Flint (ACF) River basin.8 Florida, the downstream state, alleged that Georgia overconsumed the ACF basin’s waters, leading to the collapse of its local oyster industry and harming Florida’s river ecosystems.9 After agreeing to exercise original jurisdiction, the Supreme Court appointed a Special Master to take evidence and issue a report with recommendations on how to resolve the dispute.10 The Court explained that “given the complexity of many water-division cases, the need to secure equitable solutions, the need to respect the sovereign status of the States, and the importance of finding flexible solutions to multi-factor problems, we typically appoint a Special Master and benefit from detailed factual findings.”11

The Special Master in Florida v. Georgia recommended that the Court dismiss the case because the relief Florida sought—a limitation on Georgia’s consumptive use of ACF Basin waters—would not redress the alleged injury without also joining the Army Corps of Engineers (Corps) as party to the case.12 Although the Corps operated a dam that controlled the amount of water flowing southward into Florida, it was not a defendant in the suit because it was protected by sovereign immunity.13 The Special Master recommended dismissing the case based on the “single, discrete” conclusion that Florida’s injury could not be redressed without a judicial decree that was binding on both Georgia and the Corps as defendants.14 Florida lodged exceptions to the Special Master’s report, and, in a 5-4 opinion issued in 2018, the Supreme Court declined to adopt the Special Master’s recommendation of dismissal.15

At the outset of its 2018 opinion, the Supreme Court summarized “several related but more specific sets of principles” that govern the doctrine of equitable apportionment in interstate disputes between two states.16 The Court remanded the case to the Special Master assigned to the dispute, concluding that he had applied too strict a standard on the issue of redressability.17 The Court advised the Special Master that, “[c]onsistent with the principles that guide our inquiry in this context, answers need not be ‘mathematically precise or based on definite present and future conditions.’ Approximation and reasonable estimates may prove ‘necessary to protect the equitable rights of a State.’ . . . Flexibility and approximation are often the keys to success in our efforts to resolve water disputes between sovereign States that neither Congress ‘nor the legislature of either State’ has been able to resolve.”18

On remand, a newly appointed Special Master recommended that the Supreme Court dismiss Florida’s request for equitable apportionment, and the Court agreed.19 In a unanimous opinion issued in 2021, the Supreme Court held that Florida did not meet its evidentiary burden to show that Georgia’s consumption of ACF Basin waters caused Florida’s alleged harm.20 Rather, the evidence suggested Florida’s mismanagement of its own fisheries contributed to its oyster industry’s collapse, and Florida did not show any “actual” or “real-world” damage to its ecosystems.21

Other types of interstate disputes of which the Court has taken jurisdiction include suits by a state as the donee of the holders of bonds issued by another state, and the ability to collect thereon;22 by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia that the latter owed the former;23 and by Arkansas to enjoin Texas from interfering with the performance of a contract by a Texas foundation to contribute to the construction of a new hospital in the medical center of the University of Arkansas.24 Other examples include a suit brought by one state against another to enforce a contract between the two,25 a suit in equity between states for the determination of a decedent’s domicile for inheritance tax purposes,26 and a suit by two states to restrain a third from enforcing a natural gas measure that purported to restrict the interstate flow of natural gas from the state in the event of a shortage.27

In Texas v. New Jersey,28 the Court adjudicated a multistate dispute about which state should be allowed to escheat intangible property consisting of uncollected small debts held by a corporation. Emphasizing that the states could not constitutionally provide a rule of settlement and that no federal statute governed the matter, the Court evaluated the possible rules and chose the one easiest to apply and least likely to lead to continuing disputes.29

In general, in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court relied on the liberal construction of the term “controversies between two or more States” that the Court enunciated in Rhode Island v. Massachusetts,30 and Chief Justice John Marshall fortified in dictum in Cohens v. Virginia31 that “it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union.”32

Notes
  1. 180 U.S. 208 (1901). ↩
  2. E.g. Montana v. Wyoming, 563 U.S. 368 (2011); Texas v. New Mexico and Colorado, No. 141, Orig., slip op. at 1 (U.S. Mar. 5, 2018); Texas v. New Mexico, No. 65, Orig., slip op. at 1 (U.S. Dec. 14, 2020). ↩
  3. See, e.g., Florida v. Georgia (2018 Florida), No. 142, Orig., slip op. at 1 (U.S. June 27, 2018) (“This case concerns the proper apportionment of the water of an interstate river basin. Florida, a downstream State, brought this lawsuit against Georgia, an upstream State, claiming that Georgia has denied it an equitable share of the basin’s waters.”). ↩
  4. 206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington, 444 U.S. 380 (1980). ↩
  5. See also 2018 Florida, slip op. at 10 (“Where, as here, the Court is asked to resolve an interstate water dispute raising questions beyond the interpretation of specific language of an interstate compact, the doctrine of equitable apportionment governs our inquiry.” (citing Colorado v. New Mexico, 459 U.S. 176, 183 (1982)); Virginia v. Maryland, 540 U.S. 56, 74 n.9 (2003) (“Federal common law governs interstate bodies of water, ensuring that the water is equitably apportioned between the States and bodies of water, ensuring that the water is equitably apportioned between the States and that neither State harms the other’s interest in the river.”). ↩
  6. 283 U.S. 336 (1931). ↩
  7. Id. at 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a state against citizens of other states to abate a nuisance allegedly caused by the dumping of mercury into streams that ultimately run into Lake Erie, but it declined to permit the filing because the presence of complex scientific issues made the case more appropriate for first resolution in a district court. See also Texas v. New Mexico, 462 U.S. 554 (1983); Nevada v. United States, 463 U.S. 110 (1983) ↩
  8. 2018 Florida, slip op. at 1; Florida v. Georgia (2021 Florida), No. 142, Orig., slip op. at 1 (U.S. Apr. 1, 2021). ↩
  9. 2021 Florida, slip op. at 5. ↩
  10. See 2018 Florida, slip op. at 6. ↩
  11. Id. at 14. ↩
  12. Id. at 7. ↩
  13. Id. at 2–3, 6. ↩
  14. Id. at 7 (emphasis in original). ↩
  15. Id. at 15. ↩
  16. 2018 Florida, slip op. at 10. Specifically, when asked to resolve such a dispute under the doctrine of equitable apportionment, the Court should consider the following principles: (1) that the two states “possess an equal right to make a reasonable use of the waters of the stream”; (2) that “the Court’s ‘effort always is to secure an equitable apportionment without quibbling over formulas’ . . . [and w]here ‘[b]oth States have real and substantial interests in the River,’ those interests ‘must be reconciled as best they may be’”; (3) that, “in light of the sovereign status and ‘equal dignity’ of States, . . . the complaining State must demonstrate that it has suffered a ‘threatened invasion of rights’ that is ‘of serious magnitude’”; and (4) that “where a complaining State meets its ‘initial burden of showing ‘real or substantial injury,’ this Court, recalling that equitable apportionment is ‘flexible,’ not ‘formulaic,’ will seek to ‘arrive at a just and equitable apportionment of an interstate stream’ by ‘consider[ing] ‘all relevant factors.’” Id. at 11–14 (citations omitted). ↩
  17. Id. at 15. ↩
  18. Id. at 37 (quoting Idaho ex rel. Evans v. Oregon, 462 U.S. 1017, 1026 (1983)); Virginia v. West Virginia, 220 U.S. 1, 27 (1911). ↩
  19. See 2021 Florida, slip op. at 1. ↩
  20. Id. at 5. ↩
  21. See id. at 5–10. ↩
  22. South Dakota v. North Carolina, 192 U.S. 286 (1904). ↩
  23. Virginia v. West Virginia, 220 U.S. 1 (1911). ↩
  24. Arkansas v. Texas, 346 U.S. 368 (1953). ↩
  25. Kentucky v. Indiana, 281 U.S. 163 (1930). ↩
  26. Texas v. Florida, 306 U.S. 398 (1939). In California v. Texas, 437 U.S. 601 (1978), the Court denied a state leave to file an original action against another state to determine the contested domicile of a decedent for death tax purposes, with several Justices of the view that Texas v. Florida had either been wrongly decided or was questionable. But, after determining that an interpleader action by the administrator of the estate for a determination of domicile was barred by the Eleventh Amendment, Cory v. White, 457 U.S. 85 (1982), the Court over dissent permitted filing of the original action. California v. Texas, 457 U.S. 164 (1982). ↩
  27. Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The Court, in Maryland v. Louisiana, 451 U.S. 725 (1981), over dissent, relied on this case in permitting a suit contesting a tax imposed on natural gas, the incidence of which fell on the suing state’s consuming citizens. And, in Wyoming v. Oklahoma, 502 U.S. 437 (1992), the Court permitted a state to sue another to contest a law requiring that all in-state utilities burn a mixture containing at least 10% in-state coal, the plaintiff state having previously supplied 100% of the coal to those utilities and thus suffering a loss of coal- severance tax revenues. ↩
  28. 379 U.S. 674 (1965). See also Pennsylvania v. New York, 407 U.S. 206 (1972). ↩
  29. Id. at 683. ↩
  30. 37 U.S. (12 Pet.) 657 (1838). ↩
  31. 19 U.S. (6 Wheat.) 264 (1821). ↩
  32. Id. at 378. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 79–80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965); Pennsylvania v. New York, 407 U.S. 206 (1972). ↩

ArtIII.S2.C1.14.4 Cases Where the Court Has Declined Jurisdiction

Centering its attention upon the elements of a case or controversy, the Court has declined jurisdiction in certain circumstances. For example, in Alabama v. Arizona,1 where Alabama sought to enjoin nineteen states from regulating or prohibiting the sale of convict-made goods, the Court stated that jurisdiction of suits between states will be exercised only when absolutely necessary.2 The Court explained that the equity requirements in a suit between states are more exacting than in a suit between private persons, and that a plaintiff state asking leave to sue another state must show the threatened injury to be of great magnitude and imminent.3 The Court further explained that the burden on the plaintiff state to establish all the elements of a case is greater than the burden generally required by a plaintiff seeking an injunction in cases between private parties.4

Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees.5 In holding that the complaint presented no justiciable controversy, the Court declared that, to constitute such a controversy, the complainant state must show that it “has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to . . . the common law or equity systems of jurisprudence.”6 The fact that the trust property was sufficient to satisfy the claims of both states and that recovery by either would not impair any rights of the other distinguished the case from Texas v. Florida,7 where the Court held the contrary. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right.8 The Court then proceeded to reiterate its earlier rule that a state may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens.9 Moreover, the Court held that Massachusetts could not invoke the original jurisdiction of the Court by making citizens of Missouri parties to a suit that was not otherwise maintainable.10 Accordingly, Massachusetts was held to have an adequate remedy in Missouri’s courts or in a federal district court in Missouri.11

In 2020, the Supreme Court declined to allow Texas to file a bill of complaint in which Texas alleged that four states allowed “material illegality”12 in the 2020 general elections held in their states.13 Texas argued that alleged flaws in voting processes in Pennsylvania, Georgia, Michigan, and Wisconsin affected an “outcome determinative” number of votes in the 2020 presidential election.14 The Supreme Court denied Texas’s motion under the rationale that Texas lacked standing because it did not have a “judicially cognizable interest in the manner in which another State conducts its elections.”15

Notes
  1. 291 U.S. 286 (1934). The Court has been loath to permit filings of original actions where the parties might be able to resolve their disputes in other courts, even in cases in which the jurisdiction over the particular dispute is exclusively original. Arizona v. New Mexico, 425 U.S. 794 (1976) (dispute subject of state court case brought by private parties); California v. West Virginia, 454 U.S. 1027 (1981). But in Mississippi v. Louisiana, 506 U.S. 73 (1992), the Court’s reluctance to exercise original jurisdiction ran afoul of the “uncompromising language” of 28 U.S.C. § 1251(a) giving the Court “original and exclusive jurisdiction” of these kinds of suits. ↩
  2. Alabama v. Arizona, 291 U.S. 286, 291 (1934). ↩
  3. Id. at 292. ↩
  4. Id. ↩
  5. Massachusetts v. Missouri, 308 U.S. 1, 20 (1939). ↩
  6. Id. at 15–16 (citing Florida v. Mellon, 273 U.S. 12 (1927)). ↩
  7. 306 U.S. 398 (1939). ↩
  8. See id. at 16–17. ↩
  9. Massachusetts, 308 U.S. at 17 (citing Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277, 286 (1911) and Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 394 (1938)). See also New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76 (1883), which held that a state cannot bring a suit on behalf of its citizens to collect on bonds issued by another state, and Louisiana v. Texas, 176 U.S. 1 (1900), which held that a state cannot sue another to prevent maladministration of quarantine laws. ↩
  10. Massachusetts, 308 U.S. at 17, 19. ↩
  11. See id. at 19–20. ↩
  12. Mot. for Leave to File Bill of Complaint, Texas v. Pennsylvania at 2, No. 155, Orig. (U.S. Dec. 11, 2020). ↩
  13. Order, Texas v. Pennsylvania, No. 155, Orig. (U.S. Dec. 11, 2020). ↩
  14. Mot. for Leave, supra note 12, at 2. ↩
  15. Order, supra note 13. ↩

ArtIII.S2.C1.14.5 Enforcement Authority

In 2015, the Court, noting that proceedings under its original jurisdiction are “basically equitable,”1 took the view that its enforcement authority encompasses ordering disgorgement of part of one state’s gain from its breach of an interstate compact, as well as reforming certain agreements adopted by the states.2 In so doing, the Court emphasized that its enforcement authority derives both from its “inherent authority” to apportion interstate streams between states equitably and from Congress’s approval of interstate compacts.3 As to its inherent authority, the Court noted that states bargain for water rights “in the shadow of” the Court’s broad power to apportion them equitably and it is “difficult to conceive” that a state would agree to enter an agreement as to water rights if the Court lacked the power to enforce the agreement.4 The Court similarly reasoned that its remedial authority “gains still greater force” because a compact between the states, “having received Congress’s blessing, counts as federal law.”5 The Court stated, however, that an interstate compact’s “legal status” as federal law could also limit the Court’s enforcement power because the Court cannot order relief that is inconsistent with a compact’s express terms.6

Notes
  1. Kansas v. Nebraska, 574 U.S. 445, 451 (2015). ↩
  2. Kansas, 574 U.S. at 461–64 Equity is “the system of law or body of principles originating in the English Court of Chancery.” Equity, BLACK’S LAW DICTIONARY 656 (10th ed. 2014). Persons who sought equitable relief “sought to do justice in cases for which there was no adequate remedy at common law,” A.H. MANCHESTER, MODERN LEGAL HISTORY OF ENGLAND AND WALES, 1750–1950, at 135–36 (1980), i.e., cases in which the English courts of law could afford no relief to a plaintiff. While eventually courts of law and courts providing equitable relief merged into a single court in most jurisdictions, an equitable remedy refers to a remedy that equity courts would have historically granted. See 1 DAN B. DOBBS, DOBBS LAW OF REMEDIES: DAMAGES - EQUITY - RESTITUTION § 2.1(2), at 59–61 (2d ed. 1993). Compensatory damages are a classic “legal” remedy, whereas an injunction is a classic “equitable” remedy. See RICHARD L. HASEN, REMEDIES 141 (2d ed. 2010). ↩
  3. Id. at 454–55. ↩
  4. See Kansas, 574 U.S. at 455 (quoting Texas v. New Mexico, 462 U.S. 554, 569 (1983)). ↩
  5. Id. ↩
  6. Id. ↩