The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States....
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 may extend. By far the most important is the category encompassing “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.” This is often referred to as the “federal question” jurisdiction, and, although that is something of a misnomer, it is a convenient label.
From the beginning, the Framers intended the scope of the jurisdiction to be broad. The federal question jurisdiction made its first appearance at the Constitutional Convention in the Virginia Plan, which would have authorized federal courts to hear “questions which may involve the national peace and harmony.” By the time the Committee of Detail began its work, the convention had added to this language a grant of jurisdiction over “Cases arising under the Laws passed by the general Legislature.” When the Committee of Detail reported to the convention, the reference to “national peace and harmony” had disappeared, but the “arising under” language remained.
There was little discussion of this provision at the convention. In the course of a single day, the convention made three important changes. It replaced the reference to “laws passed by the Legislature” with “laws of the United States.” And, on separate motions, it extended the judicial power first to cases arising under the Constitution and then to cases arising under treaties, in addition to the cases arising under federal laws. When the Committee of Style reported to the convention in September, the provision read substantially as it does today: 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.”
The potential breadth of this language prompted criticism by opponents of the proposed Constitution during the debates over ratification in the key state of Virginia. George Mason, for example, could find no “limitation whatsoever, with respect to the nature or jurisdiction of [the federal] courts.” James Madison, a supporter of ratification, did not dispute this assertion; rather, he asserted that “the judicial power [of the national government] should correspond with the legislative.”
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 John Marshall in the early years of the republic.
The better-known of the two decisions is Osborn v. Bank of the United States (1824). Marshall’s delineation of the constitutional scope of the jurisdictional grant proceeds in two steps. First, he declares 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, provided the facts necessary to support the action be made out.” In other words, a federal question is a question whose answer depends in some way on federal law. Marshall then says 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, is an element of the plaintiff’s claim.
The breadth of this definition is made clear by a companion case in which the Court upheld federal jurisdiction over a suit by the Bank of the United States to recover on negotiable notes issued by a state bank. Bank of the United States v. Planters’ Bank of Georgia (1824). The liability of the defendant state bank would appear to have depended solely on state law. How, then, could Marshall have concluded that a federal question formed an element of the “original cause”? Marshall’s answer is that there are some federal questions—for example, the federal bank’s capacity to sue—that necessarily exist in every case brought by the bank, even though the particular proposition is not questioned. Osborn thus establishes that, so 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.
Three years before Osborn, in Cohens v. Virginia (1821), the Court considered a challenge to its own authority to exercise appellate jurisdiction over a case originating in state court. The defendants, convicted of a crime under state law, invoked what we would today call a defense of preemption: they “claimed the protection of an act of Congress.” They also asserted that the Supreme Court could consider their appeal because it was a case “arising under” federal law. The state of Virginia disagreed, taking the position that a case could “arise under” the federal Constitution or federal law only if the Constittion or law was the basis for the claim of the party who had initiated the lawsuit.
The state’s interpretation is a plausible reading of the language of Article III, but the Supreme Court rejected it as “too narrow.” The Court said that cases are defined by the rights of both parties, and 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.” The Cohens definition thus supports the Supreme Court’s jurisdiction to hear appeals from state courts when those courts have decided federal questions.
Capacious though they are, neither the Osborn definition nor the one in Cohens would necessarily cover all of the cases in which Congress has authorized the removal of actions from state to federal court. But in a series of nine-teenth-century decisions the Court made plain that Article III authorizes 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). James Davis was a federal revenue officer whose duties included seizing illicit distilleries. In the course of one such effort “he was assaulted and fired upon by a number of armed men.” He fired back, killing one of the men, and was prosecuted in state court for murder. Davis removed the case to federal court under an act of Congress that allowed removal of any suit brought against a federal revenue officer on account of any act done “under color of” any revenue law. The state challenged the constitutionality of the removal statute, but the Supreme Court held that the statute was valid. The Court relied heavily on Marshall’s opinion in Cohens. It 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” (emphasis added).
The Supreme Court’s decisions have thus established that Congress can authorize federal courts to hear cases in which a federal question is (1) a logical antecedent of the plaintiff’s claim (whether or not contested), or (2) the basis of a defense actually raised (even though it may not be dispositive), or (3) the basis of the decision actually made (typically by a state court). The area of uncertainty involves Congress’s power to authorize jurisdiction over cases in which a federal question is an element neither of the original cause nor of the defense, but in which a litigant is a member of a class that Congress seeks to protect (e.g., federal employees sued in state court) or the area is one in which Congress has taken an interest under an Article I grant of power (e.g., consumer protection or nuclear accidents).
Until recently, Supreme Court case law cast little doubt on the breadth of Congress’s authority to vest federal question jurisdiction in federal courts. However, the decision in Mesa v. California (1989) makes clear that the power is not unlimited. In Mesa, the Court construed the statute that allows removal to federal court of suits brought against federal officers for acts done under color of their federal office (a modern-day version of the statute involved in Tennessee v. Davis). The Court held that the statute allows removal only if the officer alleges a federal defense to the state-law claim. The Court explained that if the statute were construed to grant federal jurisdiction simply because a federal officer is a defendant, it would “unnecessarily present grave constitutional problems.” The opinion thus implies that to support “arising under” jurisdiction, a federal question must be present somewhere in the case. However, the Court did not rule out the possibility that, under some circumstances, Congress might be able to vest “arising under” jurisdiction to protect federal interests even in the absence of a federal question.
It is important to emphasize that the broad construction of the “arising under” language of Article III has no bearing on the scope of the statutory grant of federal question jurisdiction, even though the statute uses language identical to that of the Constitution. The Court has read the statutory jurisdiction not to extend as far as it could under the Constitution. Full discussion is beyond the scope of this essay; it is sufficient to note that neither a federal defense (as in Cohens) nor a “logical antecedent” provides a basis for district court jurisdiction under 28 U.S.C. § 1331. Rather, the federal question must be, at a minimum, a necessary element of a “well pleaded complaint”—the plaintiff’s claim for relief.
Finally, it should be made clear that federal jurisdiction extends to cases, not issues. When a federal court has jurisdiction over a case that arises under federal law, the jurisdiction extends to the whole case, and the court will often have power to consider other issues in the case whether state or federal.
The Court defined the boundaries of the constitutional “case” in United Mine Workers v. Gibbs (1966). Under Gibbs, if a federal court has jurisdiction over a case based on the plaintiff’s federal claims, it can also hear non-federal claims as long as the federal and non-federal claims “derive from a common nucleus of operative fact” and are sufficiently related that the plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” Congress codified the substance of the Gibbs decision in 1990 when it recognized “supplemental jurisdiction” in section 1367 of the Judicial Code.
Until 2011, the removal chapter of the Judicial Code included a provision—section 1441(c)—that appeared to go beyond the limits of judicial power as defined in Gibbs. Congress cured this infirmity in the Federal Courts Jurisdiction and Venue Clarification Act of 2011, when it rewrote section 1441(c) to require the district court, upon removal, to sever and remand all claims not within its jurisdiction.
Ray Forrester, The Nature of a "Federal Question," 16 Tulane L. Rev. 362 (1942)
Paul Mishkin, The Federal "Question" in the District Courts, 53 Colum. L. Rev. 157 (1953)
G. Edward White, The Marshall Court and Cultural Change 1814–1835, ch. VIII (Oxford 1991)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
Bank of the United States v. Planters' Bank of Georgia, 22 U.S. (9 Wheat.) 904 (1824)
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
Tennessee v. Davis, 100 U.S. 257 (1880)
Mesa v. California, 489 U.S. 121 (1989)
United Mine Workers v. Gibbs, 383 U.S. 715 (1966)