Article I, Article III, and the limits of enumeration.

• Author: Seinfeld, Gil

Article I, Section 8 and Article III, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, Section 2.

If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, Section 2, like its cousin in Article L does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, Section 2, and the Justices have consistently found ways--through a series of highly tendentious interpretive moves--to avoid deeming these provisions unconstitutional.

This Article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, Section 2.

TABLE OF CONTENTS INTRODUCTION I. ENUMERATION AND ARTICLE I A. Congressional Power Outside the Enumeration 1. Immigration 2. Foreign Affairs B. Enumerated Power, Unlimited Power 1. Interstate Commerce 2. The Spending Power II. ENUMERATION AND ARTICLE III A. Article III, Section 2: In Theory B. Article III, Section 2: In Practice 1. Osborn v. Bank of the United States 2. "Related to" Jurisdiction in Bankruptcy 3. Tidewater 4. LMRA [section] 301 and the Lincoln Mills Case 5. The FSIA and the Verlinden Case III. FEDERAL COURT JURISDICTION OUTSIDE THE ENUMERATION A. The Congressional Power Model of Federal Court Jurisdiction 1. The Congressional Power Model: Text and Structure 2. Why Abandon Article III? B. Critiques of the Congressional Power Model 1. State Control Over State Law 2. Lowering the Barriers to Federal Intrusion 3. Other Constraints on Federal Judicial Power? IV. RIVAL THEORIES: PROTECTIVE JURISDICTION A. The Wechsler Theory: "Arising Under" the Jurisdictional Statute B. Professor Mishkin's "Federal Programs" Approach CONCLUSION INTRODUCTION

This Article is about two stories we tell ourselves relating to the Constitution's allocation of power between the federal government and the states. In particular, these stories are about the enumerations of powers in Articles I and III of the Constitution and the extent to which they have given rise to meaningful, judicially enforceable limits on federal authority. One story is true; the other is not.

The first story, about Article I, depicts the enumeration of federal legislative powers as a failure. The framers of the Constitution, the story goes, wished to constrain the powers of the federal government, and so, rather than confer upon it a general police power, they supplied (primarily through Article I, Section 8 (1)) a list of powers that the newly constituted Congress was authorized to exercise and thereby prohibited that body from exercising powers not on the list. According to the standard story, this enumeration of powers has proved to be little more than a parchment barrier; (2) Congress has long exercised powers that are difficult to locate within the Article I enumeration, and the principle of limited federal government has largely fallen by the wayside.

The second story is about Article HI, and it depicts the enumeration of federal judicial powers as a success. According to this story, Article III, Section 2, which contains a list of nine categories of cases to which "the judicial Power [of the United States] shall extend," (3) remains inviolate. This account insists that Congress is prohibited from channeling into the federal courts cases that fall outside the list supplied in Article III, Section 2, and it suggests that, were Congress to do so, the relevant jurisdictional enactment would be invalidated by the courts. (4)

While the first story paints an accurate picture of our experience with Article I, the second story--the account of the constitutional limits on the judicial power of the United States--is seriously flawed. For the reality is that the Supreme Court has shown no more enthusiasm for enforcing the enumeration of judicial powers in Article III, Section 2 than it has for policing the enumeration of legislative powers in Article I. In fact, the Supreme Court has never invalidated a federal statute on the ground that it goes beyond the limits implicit in Article III's enumeration of powers. (5) And this is so despite the fact that Congress has enacted numerous statutes that unmistakably push hard on the limits specified in Article III, Section 2. Our longstanding jurisdictional practice thereby signals that Congress has extremely wide latitude to channel cases into the federal courts so long as it reasonably believes the establishment of federal jurisdiction to be in the national interest.

Over the course of our history, this account of the constitutional limits on federal court jurisdiction has been embraced explicitly in only one opinion from the Supreme Court. Specifically, in his opinion for a plurality of three Justices in National Mutual Insurance Co. v. Tidewater Transfer Co., (6) Justice Jackson took the position that Congress is permitted to channel cases into the federal courts in order to advance Article I interests, and that it may do so without regard to the enumeration of powers in Article III. (7) But Jackson's argument sparked vigorous dissent from six of his colleagues, in three separate opinions, (8) and his conception of federal judicial power has been consigned ever since to the dustbin of federal courts theory. (9)

This Article attempts to revive Justice Jackson's much-maligned theory of the constitutional limits on federal court jurisdiction. It argues not only that Jackson's account best captures the reality of our jurisdictional practice, but that it rests on a normatively attractive conception of the role of the federal courts in our system of government. This conception, under which Congress is afforded considerable discretion to deploy the federal courts as a tool for advancing legitimate federal interests, is of a piece with the vision of federal power underlying the vast expansion in the scope of federal legislative authority under Article I and the concomitant collapse of the enumeration strategy employed there.

I proceed in four parts. In Part I, I examine the fate of the enumeration of powers in Article I. Specifically, I explore the textual roots and scope of Congress's power across a variety of doctrinal areas in an effort to demonstrate the flimsiness of the constraints implicit in the Article I enumeration. In Part II, I show that our experience with the Article III enumeration is much the same. I provide a detailed account of Supreme Court decisions upholding a diverse array of jurisdictional statutes, each of which poses significant difficulties from an Article III perspective. In each instance, we will see, the Court finds a way to reconcile the relevant enactments with Article III, Section 2. But the reasoning in these cases is transparently tortured, and in the aggregate the cases suggest that the Justices feel a powerful compulsion to vindicate congressional judgments relating to the proper scope of federal court jurisdiction, and to do so regardless of the enumeration-based constraints contained in Article III.

Parts III and IV shift from the descriptive to the normative. In Part III, I develop and defend the vision of federal judicial power that silently drives the case law relating to the constitutional limits on federal court jurisdiction. In Part IV, I examine competing theories of federal jurisdiction that have been developed in the academic literature. Parts III and IV also draw attention to similarities in the structure and content of the debates relating to the enumerations of powers in Articles I and III. It is, of course, not necessary that we treat these two fragments of the Constitution the same. And it is not my claim that arguments that have carded the day in connection with Article I must do the same with respect to Article III. But the similarity in our practice and the scholarly discourse across these two contexts raises an important question about the stories we tell ourselves in connection with the Constitution's enumerations of powers: why has the erosion of the Article I enumeration been integrated into the conventional understanding of our federal system (even if unhappily by some), while the Court's failure to police the boundaries of Article III has gone largely unnoticed? (10) I conclude with some tentative thoughts about this question. (11)

1. ENUMERATION AND ARTICLE I

   The classic view of enumerated powers doctrine has two key features. The first is a commitment to locating all exercises of federal authority in the list of powers specified in the text of the Constitution. The framers' decision to enumerate Congress's powers, the argument goes, implicitly prohibits that body from...