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F, Federal Questions.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 24 September 2020

Federal Questions.

The Constitution, in *Article III, section 2, empowers federal courts to adjudicate “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made … under their Authority.” An act of Congress grants jurisdiction to the federal courts in almost identical language. The jurisdiction thus provided has come to be known as federal question jurisdiction. Yet judicial interpretation has made clear (1) that some disputes in which the sole legal question is one of state law can be heard in federal courts under federal question jurisdiction and (2) that some disputes centering on a controverted issue of federal law cannot be heard in federal court under the statutory grant. What constitutes a federal question is thus not completely clear.

During the first quarter-century after the adoption of the Constitution in 1787, proponents of national power sometimes argued that “Laws of the United States” included all the laws of the several states. This argument, if it had been accepted, would have made cognizable in federal court all *common-law cases now thought of as within the exclusive domain of the states, such as questions of *tort, *contract, and *property (see federal common law). A scattering of federal court decisions that seemed to adopt this position with regard to criminal law was soundly rejected by the Supreme Court in 1812 in United States v. *Hudson & Goodwin.

However, in 1824, in *Osborn v. Bank of the United States and a companion case, the Supreme Court established a broad interpretation of the constitutional language. In a suit against a federally chartered entity (the bank) that involved only ordinary issues of contract law and where no issue of federal law was controverted, the Court permitted federal question jurisdiction because of the strong federal interests involved. Since some states vigorously opposed a national bank and desired to tax it out of existence, the bank could rationally conclude that in such states only a federal court would provide a fair forum.

The 1824 ruling was based on an act of Congress, the federal bank’s charter. Except for a brief interlude in 1801–1802, no statute granted federal question jurisdiction to the national courts as a general matter until 1875. The *Judiciary Act of 1875, essentially still on the books, has not been construed as broadly as the constitutional “arising under” language has been. For example, the Court made it clear in Merrell Dow Pharmaceuticals v. Thompson (1986) that only the most important of federal interests would allow a case like Osborn— a federal interest contained in a state-created cause of action—to constitute a federal question under the statute. The Court today believes that, given the crowding of federal dockets and the principles of *federalism it finds embedded in the Constitution, *state courts should normally hear state-created causes of action.

Even where a controverted issue of federal law is at stake, the Court has ruled that only important, or “substantial,” federal issues constitute federal questions under the statute. Further, in a longstanding (but criticized) ruling reaffirmed in Franchise Tax Board v. Construction Laborers Vacation Trust (1983), the substantial federal question must appear in the plaintiff’s well-pleaded complaint; that is, it must not only be raised by the plaintiff but also be an issue that belongs to the plaintiff’s case. This doorkeeping rule, seemingly unrelated to the constitutional reasons for the existence of federal question jurisdiction, has the potential to exclude genuinely important federal issues from federal court, particularly where the plaintiff has sued in state court and the defendant wishes to raise a substantial federal issue and then to remove the case to federal court.

The federal question statute has also been broadly construed. The most important example is that state law issues, as well as other issues normally outside federal jurisdiction, can be brought into federal court under “pendent jurisdiction” by appending them to even marginally substantial federal issues arising from the same facts. Many find it difficult to understand why the constitutional word “cases” does not include important federal issues raised by the defendant as well as those raised by the plaintiff.

See also judicial power and jurisdiction.

Wythe Holt