FEDERAL QUESTION JURISDICTION

Article III of the Constitution provides that the judicial power of the united states shall extend to all "Cases… arising under this Constitution, the laws of the United States, and Treaties.…" This power is called federal question jurisdiction, because typically it entails the construction, application, or enforcement of federal law, including federal common law. Performance of this function includes interpretation of the Constitution itself; thus federal question jurisdiction provides the jurisdictional basis for the federal courts' important power of judicial review. It is also the means by which Congress can secure a sympathetic and uniform interpretation of federal laws.

Although Congress has the power to make exceptions to the Supreme Court's appellate jurisdiction over federal questions, it currently makes few of them. A few federal trial court decisions, such as those remanding cases to state court following removal, are unreviewable. The Supreme Court reviews state court decisions only when they are final judgments that have been rendered by the highest state court in which judgment is available. Such a judgment will not be reviewed if it rests on an independent and adequate state ground or if it lacks a substantial federal question (for example, raises only a federal issue already resolved in an earlier case).

Apart from these restrictions, the appellate federal question jurisdiction extends to every federal issue, factual or legal, part of the plaintiff's case or part of a defense, in either a civil or a criminal case. Even if federal law appears in a case solely because a state statute refers to and incorporates it, the Supreme Court may exercise its federal question jurisdiction if it finds an independent federal interest in assuring proper interpretation of the incorporated federal matter.

In contrast, when Congress first created the lower federal courts in 1789, it authorized them to hear only a few federal question cases of special importance, such as patent suits and suits involving treaty rights. After the civil war, Congress realized that state courts would be reluctant to enforce newly created federal civil rights, and authorized the federal courts to hear the enforcement actions. Then, in 1875, Congress used almost the exact language of Article III to empower federal courts to hear "all suits of a civil nature … arising under the Constitution or laws of the United States, or treaties made.…" The 1875 act, known as the general federal question statute, required that at least $500 be in controversy in the suit, a requirement that was increased gradually over time.

Notwithstanding the breadth of the general federal question statute, Congress has continued to enact more limited laws authorizing federal jurisdiction over particular kinds of federal questions. These laws, designed to aid in enforcing the vast array of federal rights created in recent decades, have not required any amount in controversy. The range of these specialized federal question statutes is so great that by 1970 few federal question cases drew only upon the general statute. In 1976 Congress eliminated the amount in controversy requirement for the only remaining significant group of such cases, suits alleging unconstitutional conduct by federal officers; and in 1980, it repealed the requirement altogether.

Because Congress's legislative powers are enumerated and limited, a complaint filed in federal court frequently invokes a combination of state and federal law. The issue then arises whether the federal element warrants labeling the case one that "arises under" federal law. For a federal court to have federal question jurisdiction, this inquiry must be determined affirmatively, both under Article III and under the general federal question statute.

Although some Supreme Court decisions, notably Justice benjamim n. cardozo's opinion in Gully v. First National Bank (1936), have announced an equally demanding construction for both the Constitution and the statute, the currently accepted view is that the statute should be construed more narrowly than Article III despite the near identity of their language. In other words, Congress has a broad power but is assumed not to have exercised all of it. Interpretations of Article III have required that the plaintiff invoke some federal law to support a part of the claim for relief, whether or not the federal right is actually disputed by the defendant. (See osborn v. bank of united states.) In a theory known as "protective jurisdiction," some judges and scholars have advanced the view that Congress should have the power to confer federal question jurisdiction even over a case arising under state law, when the claim implicates a strong, legistimate federal interest. The Supreme Court has not yet been required to decide whether Article III extends this far, although in some fields, such as bankruptcy, the Court has approved federal question jurisdiction over suits involving only minor elements of federal law.

The Supreme Court has struggled to develop a narrower interpretive principle for the general federal question statute, seeking to allow adequate implementation of federal policy while avoiding an unnecessary deluge of cases into federal courts. For example, the statute is read to require the plaintiff's reliance on federal law to be revealed in the complaint according to traditional rules of pleading. It also appears that if plaintiff's reliance on federal law is not at the forefront of the claim, as when there is a dispute over present property rights that at some remote time had their source in federal law, jurisdiction will be denied under the general statute even though Congress could constitutionally confer it more specifically. Also, if the plaintiff relies on, refers to, and incorporates state law, the Court may refuse to allow the claim into federal court under the general statute because federal law will not be sufficiently at issue.

No single principle explains all the cases interpreting the general federal question statute. Despite this confusion, most types of cases have been classified either within or outside the federal question jurisdiction. To determine whether a new type of case combining federal and state elements falls within the statute's scope, the courts pragmatically assess the degree of federal interest in the subject matter of the litigation, the relative prominence of state and federal issues, and the likely burden on the federal judicial system of accepting jurisdiction in cases of that type.

The federal question jurisdiction authorized in Article III encompasses cases removed from state to federal court upon the defendant's assertion of a federal defense. Congress has not, however, conferred such broad federal question removal jurisdiction upon the federal courts. With a few exceptions, it has limited removal to cases that fall within original federal question jurisdiction under the general statute.

Carole E. Goldberg -A mbrose
(1986)

Bibliography

Cohen, William 1967 The Broken Compass: The Requirement That a Case Arise "Directly" under Federal Law. University of Pennsylvania Law Review 115:890–916.

Mishkin, Paul J. 1953 The Federal "Question" in the District Courts. Columbia Law Review 53:157–196.