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.

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

Footnotes

1

While federal question jurisdiction is often the basis for constitutional claims brought in federal court, cases arising under the Constitution or federal law are just one of several categories of cases that the Constitution authorizes the federal courts to hear. See also, e.g., ArtIII.S2.C1.16.1 Overview of Diversity Jurisdiction to ArtIII.S2.C1.16.7 Conflicts-of-Law and Procedural Rules in Diversity Cases; ArtIII.S2.C1.18.1 Controversies Between a State or its Citizens and Foreign States or Citizens to ArtIII.S2.C1.17 Land Grants by Different States; ArtIII.S2.C2.1 Overview of Supreme Court Jurisdiction; ArtIII.S2.C2.2 Supreme Court Original Jurisdiction to ArtIII.S2.C2.5 Supreme Court Review of State Court Decisions; ArtIII.S2.C2.6 Exceptions Clause and Congressional Control over Appellate Jurisdiction; ArtIII.S2.C2.6 Exceptions Clause and Congressional Control over Appellate Jurisdiction; ArtIII.S2.C1.12.2 Historical Background on Admiralty and Maritime Jurisdiction; to ArtIII.S2.C1.12.8 Exclusivity of Federal Admiralty and Maritime Jurisdiction.

2

This essay focuses on substantive legal issues that may give rise to federal question jurisdiction. For discussion of the constitutional text and procedural statutes that authorize the federal courts to hear federal question cases, see ArtIII.S2.C1.11.3 Constitutional and Statutory Grants of Federal Question Jurisdiction.

3

Congress also sometimes enacts federal statutes that create new legal duties but do not explicitly allow individuals to sue to enforce the law. While the Supreme Court has in the past recognized “implied” rights of action in limited circumstances, more recent case law has instructed courts to “interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

4

See 18 U.S.C. § 3231 (federal criminal proceedings); 28 U.S.C. § 1334 (bankruptcy cases); id. § 1337 (antitrust cases); id. § 1337 (patent and copyright cases).

5

State courts presumptively enjoy concurrent jurisdiction to enforce federal law, and Congress must explicitly or implicitly confine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–84 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990).

6

Section 1983 authorizes private civil suits for the “deprivation of any rights, privileges, or immunities secured by the Constitution” and federal laws. In these suits, Section 1983 provides the substantive cause of action and Section 1343 grants the federal courts jurisdiction. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954); Baker v. Carr, 369 U.S. 186 (1962).

7

See, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980).

8

Medellin v. Texas, 552 U.S. 491, 519 (2008).

9

Id. at 505.

10

Common Law, Black’s Law Dictionary (11th ed. 2019).

11

304 U.S. 64, 78 (1938). Under the Rules of Decision Act, there is a presumption against the creation of federal common law, and federal courts apply state common law when possible. 28 U.S.C. § 1652; see also Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640–41 (1981) ( “The vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law.” ).

12

Tex. Indus., 451 U.S. at 640.

13

Id. In determining whether to create federal common law, the Court’s inquiry focuses on whether a judge-made rule would effectuate the intent of Congress. See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979). Congress can enact legislation to displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 (1981).

14

403 U.S. 388 (1971). Some have likened the holding in Bivens to the creation of federal common law. See, e.g., Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (discussing the petitioners’ arguments “[a]nalogizing Bivens to the work of a common-law court” ); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) (stating that “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action” ). Justice John Harlan’s concurrence in Bivens suggested that liability in that case was not based on common law. 403 U.S. at 403 (Harlan, J., concurring) ( “I do not think that the fact that the interest is protected by the Constitution rather than statute or common law justifies the assertion that federal courts are powerless to grant damages in the absence of explicit congressional action authorizing the remedy.” ).

15

See also Davis v. Passman, 442 U.S. 228 (1979), Carlson v. Green, 446 U.S. 14 (1980).

16

See, e.g., Egbert v. Boule, No. 21-147 (U.S. June 8, 2022).

17

Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 13 (1983). See also ArtIII.S2.C1.11.3 Constitutional and Statutory Grants of Federal Question Jurisdiction; ArtIII.S2.C1.11.5 Removal from State Court to Federal Court.

18

28 U.S.C § 1331; see also Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908).

19

See, e.g., Osborn v. Bank of the U.S., 22 U.S. 738, 818 (1824).

20

28 U.S.C. § 1257.

21

376 U.S. 254 (1964).

22

539 U.S. 558 (2003). Federal courts may also review state law criminal proceedings via a petition for a writ of habeas corpus. While habeas proceedings may relate to state court proceedings, a habeas petition begins a new federal case. For discussion of federal habeas review of state criminal proceedings, see ArtIII.S1.6.9 Habeas Review.

23

Federal court jurisdiction also depends on the identities of the parties when jurisdiction is based on diversity of citizenship. Diversity jurisdiction is distinct from federal question jurisdiction. See ArtIII.S2.C1.16.1 Overview of Diversity Jurisdiction to ArtIII.S2.C1.16.7 Conflicts-of-Law and Procedural Rules in Diversity Cases; ArtIII.S2.C1.18.1 Controversies Between a State or its Citizens and Foreign States or Citizens to ArtIII.S2.C1.17 Land Grants by Different States.

24

See Lynch v. Household Fin. Corp., 405 U.S. 538, 549 n.17 (1972) (listing 28 U.S.C. §§ 1345 and 1346 among other “particular statutes [that] grant jurisdiction, without regard to the amount in controversy, in virtually all areas that otherwise would fall under the general federal-question statute” ).

25

28 U.S.C. §§ 1345, 1346.

26

28 U.S.C. §§ 1442(a)(1), 2679(d).

27

100 U.S. 257, 262 (1880). For additional discussion of Davis, see ArtIII.S2.C1.11.5 Removal from State Court to Federal Court.

28

22 U.S. 738 (1824).

29

115 U.S. 1 (1885).

30

505 U.S. 247 (1992). The Court has held, however, that a general authorization to sue and be sued that does not expressly mention suits in federal courts does not confer jurisdiction.

31

See, e.g., 28 U.S.C. § 1349 ( “The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock.” ).

32

See generally, e.g., Paul Mishkin. The Federal “Question” Jurisdiction of the District Courts, 53 Col. L. Rev. 157, 184–196 (1953); Scott A. Rosenberg, Note, The Theory of Protective Jurisdiction, 57 N.Y.U. L. Rev. 933 (1982); Loretta Shaw, Comment, A Comprehensive Theory of Protective Jurisdiction: The Missing “Ingredient” of “Arising Under” Jurisdiction, 61 Fordham L. Rev. 1235 (1993).

33

See generally ArtI.S1.3.3 Enumerated, Implied, Resulting, and Inherent Powers.

34

Rosenberg, supra note 32, at 937.

35

See, e.g., Verlinden B. V. v. Cent. Bank of Nigeria, 461 U.S. 480, 491 n.17 (1983); Mesa v. California, 489 U.S. 121, 137 (1989).