Fed. Courts OutlineProf. ManningSpring 2011Ethan Kent

FED. COURTS OUTLINE

Table of Authorities......................................................................................................................................................4

Chapter 1 – Introduction..............................................................................................................................................7§ 1.01 – The Text........................................................................................................................................................7§ 1.02 – Resources......................................................................................................................................................8

Chapter 2 – Justiciability.............................................................................................................................................9§ 2.01 – The “Case or Controversy” Requirement.....................................................................................................9

[A] – Advisory Opinions........................................................................................................................................9[B] – Marbury and the Dispute-Resolution Understanding of Judicial Power.......................................................9[C] – Hayburn’s Case and the Finality of Judgments...........................................................................................10[D] – Adversarialness...........................................................................................................................................11

§ 2.02 – Standing......................................................................................................................................................11[A] – Basic Concepts............................................................................................................................................11[B] – Lujan............................................................................................................................................................12[C] – Costs and Benefits of Standing Doctrine.....................................................................................................14

§ 2.03 – The Political Question Doctrine..................................................................................................................14[A] – The Basics...................................................................................................................................................14[B] – The Classical / Merits View........................................................................................................................15[C] – The Prudential View....................................................................................................................................15

Chapter 3 – Congressional Control Over Federal Court Jurisdiction..................................................................17§ 3.01 – The Relationship Between Federal and State Court Jurisdiction................................................................17

[A] – The Presumption of Federal–State Court Parity: Tafflin v. Levitt...............................................................17[B] – Congress’s Power to Create Exclusive Federal Jurisdiction: Tennessee v. Davis.......................................18[C] – State Court Authority to Issue Writs Against Federal Officials: Tarble’s Case.........................................18[D] – Discrimination Against Federal Claims in State Court: Testa....................................................................18

[1] – The Rule...................................................................................................................................................18[2] – Limit: Commandeering and the Tenth Amendment.................................................................................19

[E] – Jurisdiction Over State Cases Implied by the Due Process Clause: Ward v. Love County.........................19§ 3.02 – Congressional Control Over Federal Court Jurisdiction.............................................................................20

[A] – Jurisdiction Stripping..................................................................................................................................20[1] – Leading Cases...........................................................................................................................................20[2] – Internal and External Constraints.............................................................................................................20[3] – The Court’s Response to Jurisdiction-Stripping Statutes.........................................................................21[4] – The Story / Amar Theory of Mandatory Jurisdiction...............................................................................21[5] – Jurisdictional Statutes That Foist Rules of Decision on Courts...............................................................21[6] – Jurisdiction to Determine Jurisdiction......................................................................................................22

[B] – Jurisdictional Gerrymandering....................................................................................................................22[C] – Federal Court and Agency / Non-Article-III Adjudication.........................................................................23

[1] The Old Tests: Crowell through Northern Pipeline....................................................................................23[2] – Private Rights: Schor................................................................................................................................23[3] – Public Rights: Thomas..............................................................................................................................24[4] – Agency Determinations in Criminal Cases: Falbo, Estep, and Mendoza-Lopez.....................................25

Chapter 4 – Habeas Corpus.......................................................................................................................................26§ 4.01 – Executive Detention and Suspension..........................................................................................................26

[A] – World War II and Before.............................................................................................................................26[B] – The “War on Terror”...................................................................................................................................26

[1] – The Cases Leading up to Boumediene.....................................................................................................26[2] – Boumediene..............................................................................................................................................27

§ 4.02 – Review of State Court Convictions.............................................................................................................28[A] – The Original Conception and the Shift to Brown........................................................................................28[B] – Cutting Back Brown: Teague......................................................................................................................28[C] – AEDPA........................................................................................................................................................29

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Chapter 5 – State Sovereign Immunity.....................................................................................................................30§ 5.01 – The Courts, Acting Alone...........................................................................................................................30

[A] – Chisholm and the Eleventh Amendment.....................................................................................................30[B] – Hans.............................................................................................................................................................30[C] – Suing a State Officer: Ex parte Young.........................................................................................................30

§ 5.02 – Abrogation..................................................................................................................................................31§ 5.03 – Alden v. Maine............................................................................................................................................32§ 5.04 – Summary of the Theories............................................................................................................................32

Chapter 6 – Federal Common Law...........................................................................................................................33§ 6.01 – Criminal Federal Common Law: Hudson & Goodwin...............................................................................33§ 6.02 – Swift through Erie.......................................................................................................................................33§ 6.03 – Federal Proprietary Interests: Clearfield Trust and the “New” Federal Common Law.............................34

[A] – Clearfield Trust............................................................................................................................................34[B] – Theory..........................................................................................................................................................34[C] – The Current Approach: Kimbell Foods.......................................................................................................34

§ 6.04 – Enclaves of Federal Common Law.............................................................................................................34[A] – Admiralty & Maritime Law: Chelentis.......................................................................................................34[B] – State–state Disputes: Hinderlider................................................................................................................35[C] – Authority Inferred From a Pure Jurisdictional Grant: Lincoln Mills...........................................................35

§ 6.05 – International Law........................................................................................................................................35[A] – Sabbatino.....................................................................................................................................................35[B] – Customary International Law......................................................................................................................35

§ 6.06 – Implied Rights of Action: Bivens................................................................................................................36

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Table of Authorities

Cases

Ahrens v. Clark, 335 U.S. 188 (1948).....................................................................................................................26, 27Alden v. Maine, 527 U.S. 706 (1999)...........................................................................................................................32Allen v. Wright, 468 U.S. 737 (1984).....................................................................................................................11, 13Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011)..............................................................................12Baker v. Carr, 369 U.S. 186 (1962)........................................................................................................................14, 15Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398 (1964)......................................................................................35Barclay’s Bank, PLC v. Franchise Tax Bd., 512 U.S. 298 (1994)...............................................................................35Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948)................................................................................22Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)..............................36Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518 (1928)..............33Blanchette v. Conn. Gen. Ins. Corp., 419 U.S. 102 (1974)..........................................................................................10Boumediene v. Bush, 553 U.S. 723 (2008).............................................................................................................26, 27Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484 (1973).................................................................................26, 27Brown v. Allen, 344 U.S. 433 (1953)......................................................................................................................28, 29Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).......................................................................................................34Carlson v. Green, 446 U.S. 14 (1980)..........................................................................................................................36CFTC v. Schor, 478 U.S. 833 (1986)......................................................................................................................23, 24Chelentis v. Luckenbach SS Co., 247 US 372 (1918)...................................................................................................34City of Boerne v. Flores, 521 U.S. 507 (1997).............................................................................................................31Claflin v. Houseman, 93 U.S. (3 Otto) 130 (1876).......................................................................................................17Clearfield Tr. Co. v. United States, 318 U.S. 363 (1943).............................................................................................34Coleman v. Miller, 307 U.S. 433 (1939).......................................................................................................................12Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666................................................31Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).....................................................................................35Crowell v. Benson, 285 U.S. 22 (1932)........................................................................................................................23D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942)...............................................................................................34Davis v. Passman, 442 U.S. 228 (1979).......................................................................................................................36Douglas v. N.Y., N.H. & H.R.R., 279 U.S. 377 (1929).................................................................................................18Edelman v. Jordan, 415 U.S. 651 (1974).....................................................................................................................31Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)...............................................................................................................33Estep v. United States, 327 U.S. 114 (1946).................................................................................................................25Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).......................................................................................................20Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)..............................................................................................................26Ex parte Quirin, 317 U.S. 1 (1942)..............................................................................................................................26Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869)...............................................................................................................21Ex parte Young, 209 U.S. 123 (1908)...........................................................................................................................30Fairchild v. Hughes, 258 U.S. 126 (1922)....................................................................................................................11Falbo v. United States, 320 U.S. 549 (1944)................................................................................................................25FEC v. Akins, 524 U.S. 11 (1998).................................................................................................................................13Felker v. Turpin, 518 U.S. 651 (1996)..........................................................................................................................21FERC v. Mississippi, 456 U.S. 743 (1982)...................................................................................................................19Flast v. Cohen, 392 U.S. 83 (1968)........................................................................................................................12, 13Frothingham v. Mellon, 262 U.S. 447 (1923)...............................................................................................................12Gen. Oil Co. v. Crain, 209 U.S. 211 (1908)...........................................................................................................20, 32Goldwater v. Carter, 444 U.S. 996 (1979)...................................................................................................................15Griffith v. Kentucky, 479 U.S. 314 (1987)....................................................................................................................28Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981)..................................................................................17, 18Hamdi v. Rumsfeld, 542 U.S. 507 (2004)...............................................................................................................26, 27Hans v. Louisiana, 2 U.S. (2 Dall.) 419 (1793)......................................................................................................30, 32Hayburn’s case, 2 U.S. (2 Dall.) 409 (1792)....................................................................................................10, 25, 29Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007)......................................................................11, 12Herb v. Pitcairn, 324 U.S. 117 (1945)..........................................................................................................................18

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Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938)...........................................................35Hirabayashi v. United States, 320 U.S. 81 (1943)........................................................................................................16Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 (1913).........................................................................................31Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997)......................................................................................31Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986)............................................................................15Johnson v. Eisentrager, 339 U.S. 763 (1950).........................................................................................................26, 27Kansas v. Colorado, 206 U.S. 46 (1907)......................................................................................................................35Korematsu v. United States, 323 U.S. 214 (1944)........................................................................................................16Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938)........................................................................................................21Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)..............................................................................................................29Lockerty v. Phillips, 319 U.S. 182 (1943).....................................................................................................................22Luther v. Borden, 48 U.S. (7 How.) 1 (1849)...............................................................................................................15Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).......................................................................................................9Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)..........................................................................................21Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827)............................................................................................................16Massachusetts v. EPA, 549 U.S. 497 (2007)................................................................................................................13Mathews v. Eldridge, 424 U.S. 319 (1976)...................................................................................................................22McKesson v. Div. of ABT, 496 U.S. 18 (1990).............................................................................................................19Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977)................................................................................................31Mondou v. N.Y., N.H., & H.R. Co., 223 U.S. 1 (1912).................................................................................................19Moragne v. Star Marine Lines, Inc., 398 U.S. 375 (1970)...........................................................................................35Muskrat v. United States, 219 U.S. 346 (1911)............................................................................................................12N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)....................................................................23New York v. United States, 505 U.S. 144 (1992)..........................................................................................................19Nixon v. United States, 506 U.S. 224 (1993)................................................................................................................14Norwood v. Harrison, 413 U.S. 455 (1973).................................................................................................................12Parden v. Terminal Ry., 377 U.S. 184 (1964)..............................................................................................................31Pennsylvania v. Union Gas, 491 U.S. 1 (1989)............................................................................................................31Plaut v. Spendthrift Farms, Inc., 514 U.S. 211 (1995).................................................................................................11Powell v. McCormack, 395 U.S. 486 (1969)................................................................................................................15Printz v. United States, 521 U.S. 898 (1997)................................................................................................................19Raines v. Byrd, 521 U.S. 811 (1997)............................................................................................................................12Rasul v. Bush, 542 U.S. 466 (2004)..............................................................................................................................27Reich v. Collins, 513 U.S. 106 (1994)....................................................................................................................19, 32Richardson v. United States, 418 U.S. 166 (1974).......................................................................................................13Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).................................................................................................31Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850)...............................................................................................................20Sierra Club v. Morton, 405 U.S. 727 (1972)................................................................................................................12Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)............................................................................................................36Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).....................................................................................................................33Tafflin v. Levitt, 493 U.S. 455 (1990).....................................................................................................................17, 18Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872)........................................................................................................18, 27Teague v. Lane, 489 U.S. 288 (1989).....................................................................................................................28, 29Tennessee v. Davis, 100 U.S. (10 Otto) 257 (1880).....................................................................................................18Testa v. Katz, 330 U.S. 386 (1947).........................................................................................................................18, 19Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448 (1957)..............................................................35Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985).......................................................................23, 24Townsend v. Sain, 372 U.S. 293 (1963)........................................................................................................................28Tutun v. United States, 270 U.S. 568 (1926)................................................................................................................11United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816)...........................................................................................33United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812)...........................................................................33United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979)..........................................................................................34United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)...........................................................................................21, 29United States v. Mendoza-Lopez, 481 U.S. 828 (1987)................................................................................................25Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464 (1982).......................12Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C. Cir. 1983)..............................................................................................13

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W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400 (1990).............................................................35Ward v. Love County, 253 U.S. 17 (1920)..............................................................................................................19, 32Yakus v. United States, 321 U.S. 414 (1944)................................................................................................................22Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)..................................................................................16Zschernig v. Miller, 389 U.S. 429 (1968).....................................................................................................................35

Other Authorities

Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962)....................15Richard H. Fallon, Jr., et al., Hart & Wechsler’s The Federal Courts and the Federal System (6th ed. 2009)....passim

Constitutional Provisions

U.S. Const. amend V.....................................................................................................................................................19U.S. Const. amend. I...............................................................................................................................................12, 26U.S. Const. amend. VI..................................................................................................................................................26U.S. Const. amend. X..............................................................................................................................................19, 33U.S. Const. amend. XI........................................................................................................................................7, 30, 32U.S. Const. amend. XIV, § 1........................................................................................................................................17U.S. Const. amend. XVII..............................................................................................................................................33U.S. Const. art. I, § 10...................................................................................................................................................32U.S. Const. art. I, § 3, cl. 6............................................................................................................................................14U.S. Const. art. I, § 9, cl. 2......................................................................................................................................26, 27U.S. Const. art. I, § 9, cl. 7......................................................................................................................................10, 13U.S. Const. art. III, § 1....................................................................................................................................7, 9, 20, 33U.S. Const. art. III, § 2..................................................................................................................................................20U.S. Const. art. III, § 2, cl. 1..................................................................................................................................passimU.S. Const. art. III, § 2, cl. 2...............................................................................................................................7, 20, 21U.S. Const. art. III, § 3, cl. 1.........................................................................................................................................26U.S. Const. art. IV, § 4..................................................................................................................................................15

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Chapter 1 – Introduction

§ 1.01 – The Text

The law of federal courts is difficult in part because it rests upon very little text. There are 277 words in play; the most recent was written 213 years ago.

Article III, Section 1 :

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

What does “the judicial Power” mean? It’s not vested in a single court; how is it divvied up?

There must be a Supreme Court, but the lower federal courts are apparently up to Congress to make—or not. This reflects the Madisonian Compromise,1 which bridged the gap between those framers who preferred no lower federal courts and those who wanted the lower federal courts to be constitutionally mandated.

Note too the important separation-of-powers protections that Article III provides: judges enjoy income protection and can be removed only by impeachment.

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.

This first three heads of jurisdiction refer to “cases”; the last six to “controversies.” It’s not completely clear why. It may be that the first three are most important. Indeed, Akhil Amar argues that these are examples of mandatory federal jurisdiction.2 Yet it’s not clear that the latter six heads of jurisdiction are so much less important. And the Constitution itself gives no sense of why the language shifts.

Article III, Section 2, Clause 2 :

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. . . .

The Supreme Court has original jurisdiction in especially fraught cases. The Court has appellate jurisdiction otherwise. But what of the last part—to what extent can Congress use its power over jurisdiction to affect the substantive outcomes the Court reaches?

Eleventh Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The language strips something out of Article III, but precisely what?1 See Richard H. Fallon, Jr., et al., Hart & Wechsler’s The Federal Courts and the Federal System 8–9 (6th ed. 2009).2 See id. at 300 (citing a series of Amar articles expounding this theory).

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§ 1.02 – Resources

In trying to make sense of the 277 words, what resources are useful or usable?

The background of English common law. The historical purposes of the Constitution, particularly that of providing an effective judiciary The framing generation’s understanding of the Constitution’s meaning as it came into effect. The political compromises that the text reflects. But be careful: the details were unknown to the ratifying

conventions; the proceedings of the Constitutional Convention were kept secret. Changes to the Constitution, particularly the Reconstruction amendments. History and usage over the last two centuries.

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Chapter 2 – Justiciability

§ 2.01 – The “Case or Controversy” Requirement

The words “case” and “controversy” aren’t defined, and had not taken on specialized meanings at the time of the framing. So it’s somewhat mysterious precisely what these phrases require. The Court has recognized a few general requirements. Advisory opinions aren’t allowed. Courts should confine their business to resolving disputes rather than declaring law in some abstract way. Final judgments should not be revisable by the other branches. And cases and controversies involve adversaries. These requirements are closely entwined. And none seems strictly required by the text nor absolute in operation.

[A] – Advisory Opinions

Madison and Wilson each wanted the judiciary to participate in the legislative process by determining at the outset whether statutes were constitutional. Indeed, two of the plans called for express provisions allowing the Court to serve as a council of review.3

But instead, in 1793, the Justices refused Jefferson’s request to provide advice on a variety of legal matters.4 The Justices cited separation-of-powers concerns, alluding most directly Article III’s vesting clause5 and the case or controversy requirement of Article III, §2, clause 1.

This wasn’t so obviously correct at the time. British practice allowed advisory opinions. And Jay himself gave Washington informal advice.

The decision reflects a few concerns. First, the courts may be less skillful dealing with abstract questions rather than issues framed by a concrete case. Second, the executive branch could chip away at judicial power by making the Court something like an advisor. And in an advisory role, the Court’s “advice” might be ignored, making the executive less likely to yield to judicial review of actual cases. Finally, there may be a negative implication from Article II, § 2, clause 1, which expressly allows the President to require opinions in writing from his cabinet.

Neither of these seems like an insuperable obstacle. Courts do treat some cases that lack a true adversarial framing of issues as justiciable—default judgments, for instance. Judicial opinions may yet be ignored, as several cases have demonstrated.6 And the expressio unius argument is a bit weak.

[B] – Marbury and the Dispute-Resolution Understanding of Judicial Power

In Marbury v. Madison,7 a little-known case from 1803, the Supreme Court grappled with the meaning of “case” and “controversy.”

Many academics think Marbury stands for the Court’s duty to be that of law declaration. For example, Professor Sunstein points to the line, “It is emphatically the province and duty of the judicial department to say what the law is.”8

Professor Manning disagrees. First, Marbury’s next-door neighbor may have as strong an interest in seeing that law is correctly expounded and enforced. But she would lack standing, and we don’t tend to see this as a problem. We’re okay with no free-floating law-declaration power.

Second, this interpretation ignores the very next lines in the case: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”9

3 Fallon, et al., supra note 1, at 11 n.62.4 See Letter from Thomas Jefferson to John Jay, et al. (July 18, 1793), as reprinted in Fallon, et al., supra note 1, at 50; Letter from John Jay, et al. to Thomas Jefferson (July 20, 1793), as reprinted in Fallon, et al., supra note 1, at 52.5 U.S. Const. art. III, § 1.6 See, e.g., Ex parte Merryman, 17 F. Cas. 144 (Taney, Circuit Justice, D. Md. 1861) (holding that Lincoln could not suspend the writ of habeas corpus himself and ordering the release of a Confederate detainee).7 5 U.S. (1 Cranch) 137 (1803), as reprinted in Fallon, et al., supra note 1, at 58.8 Marbury, 5 U.S. (1 Cranch) at 177, as reprinted in Fallon, et al., supra note 1, at 65.9 Id.

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So, says Professor Manning, the courts’ business is dispute resolution. Crucially, though, this often requires law declaration. The Court’s power comes only from dispute resolution, but dispute resolution implies law declaration.

This explains the Court’s focus on personal rights. It also suggests why the Court, despite falling all over itself to show respect for the executive, nevertheless said it could bind Madison:

It is scarcely necessary for the court to disclaim all pretensions to [intrude into the cabinet, and to intermeddle with the prerogatives of the executive]. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.10

The Court can’t order the executive to exercise its discretion in a particular way. But it can order someone who just happens to be Secretary of State to carry out a duty required by law.

One other thing to note: Chief Justice Marshall suggests that all rights must have remedies. Yet this neither seems to be the law now, nor even then (keep in mind that Marbury has no remedy, at least before the Supreme Court).

[C] – Hayburn’s Case and the Finality of Judgments

Hayburn’s case11 is actually only an order of continuance. But Alexander Dallas included in a footnote the opinions that five of the Justices delivered while on circuit. So while the Supreme Court didn’t strike anything down in Hayburn’s Case, five of the six Justices held that the Invalid Pensions Act was unconstitutional in lower-court proceedings.

The gist of the lower court opinions is that the Act was invalid because (1) it required the courts to carry out nonjudicial duties, and (2) it subjected judicial decision-making to nonjudicial appellate review.

The second objection is most relevant here. The Act required the courts to make findings of facts and provide a recommendation to the Secretary of War, who could then revise the findings and ignore the recommendation. This requires the court to issue advisory opinions. The courts must have the final say.

This seems inconsistent with the Court of Claims (during its existence as an Article III court). The Court of Claims could render judgments that required the government to pay damages, but this was qualified by Congress’s appropriation authority.12 The Court decided this was okay in Glidden Co. v. Zdanok,13 reasoning that because Congress almost never refuses to pay—and no judgment of any court has a 100% guarantee of being enforced—the Court of Claims could rely in good faith upon the government appropriating funds.

The Court relied upon Glidden when it upheld the Regional Rail Reorganization Act.14 The Court rested its holding upon the idea that the Court of Claims could deal with defaults by a governmental organization that took over certain obligations, created as part of a bankruptcy workout. The dollar amounts were gigantic, and the dissenters worried that Congress was more likely than usual not to appropriate the funds to pay out damages ordered by the Court of Claims.

Professor Manning says the cases are probably just inconsistent.

Plaut v. Spendthrift Farms, Inc.15 reaffirmed the spirit of Hayburn’s Case. There the Court struck down a statute that retroactively extended statutes of limitation and directed the courts to reopen cases dismissed as time-barred. The Court reasoned that courts must have the authority to render final judgments: the Constitution reflects the framers’ desire to protect final judgments, inspired by their living “among the ruins of a system of intermingled legislative

10 Marbury, 5 U.S. (1 Cranch) at 170, as reprinted in Fallon, et al., supra note 1, at 60.11 2 U.S. (2 Dall.) 409 (1792), as reprinted in Fallon, et al., supra note 1, at 80.12 U.S. Const. art. I, § 9, cl. 7.13 370 U.S. 530 (1962), discussed in Fallon, et al., supra note 1, at 91.14 Blanchette v. Conn. Gen. Ins. Corp., 419 U.S. 102 (1974), discussed in Fallon, et al., supra note 1, at 91.15 514 U.S. 211 (1995), discussed in Fallon, et al., supra note 1, at 89.

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and judicial powers . . . .”16 There was no problem with Congress simply extending a statute of limitations; only with ordering final dispositions to be revisited.

[D] – Adversarialness

Hayburn’s Case made some reference to the necessity for adverse parties. This may be inherent in the notion of a “case” or “controversy.” Then again, says Professor Manning, we can imagine a case in the sense that caseworker deals with—one that doesn’t necessarily require a specific adversary.

One minor, possible exception to this—dictated more by historical usage than any coherent theory—is naturalization proceedings. In Tutun v. United States,17 the Court held that although naturalization proceedings don’t usually involve an adversary, Article III courts have authority to hear them because the government always may oppose the petitioner.

§ 2.02 – Standing

Standing is very complicated and inconsistent. Fundamentally, it seems to be about avoiding ideological plaintiffs. But because the Court is reasoning from very vague and abstract principles (the case/controversy requirement), it’s hard to channel them with any certainty or consistency into resolving discrete cases.

Standing was more or less invented in the Twentieth Century—Fairchild v. Hughes18 is said to be the first case. But standing lurked in the background of public rights litigation in earlier cases, though it was not made into an explicit doctrine.

[A] – Basic Concepts

Allen v. Wright19 held that parents of black public school students lacked taxpayer standing to sue the IRS to cut off tax benefits to racially discriminatory private schools. The plaintiff class sought a declaration that the IRS was not enforcing its own policies appropriately and an injunction to require more stringent enforcement.

The plaintiffs alleged two harms: stigmatic harm and impairment of ongoing desegregation efforts.

As to the first claim, the Court sought to draw a line—if all abstract, stigmatic harms were actionable, a Hawaiian could sue a local school district in Maine. And so the Court sought to limit itself to recognizing only “wallet injuries,”20 though this is not invariably the case.21

There is surely an injury we can recognize as humans, but the Court’s goal is to avoid opening the floodgates of litigation by making it cognizable.

The Court held that the second claim failed to meet the causation and redressability requirements. The Court considered it too abstract to link the IRS’s policy to the effectiveness of school desegregation efforts. Justice Stevens’s dissent points out that this is Economics 101: “when something becomes more expensive, less of it will be purchased.”22 So subsidizing racist schools leads to more racist schools. But the Court has required a very stringent idea of causation in standing cases.23 The Court earlier had held that aiding discrimination perpetuates it.24

16 Plaut, 514 U.S. at 219.17 270 U.S. 568 (1926), discussed in Fallon, et al., supra note 1, at 84.18 258 U.S. 126 (1922).19 468 U.S. 737 (1984), as reprinted in Fallon, et al., supra note 1, at 101.20 Cf. Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 619 (2007) (Scalia, J., concurring) (“We have alternately relied on two entirely distinct conceptions of injury in fact, which for convenience I will call ‘Wallet Injury’ and ‘Psychic Injury.’ ”).21 See Heckler v. Matthews, 465 U.S. 728 (1984) (standing allowed in a suit by a man challenging more favorable Social Security benefits for women, even though winning would level down yielding no pecuniary benefits for the litigant), discussed in Fallon, et al., supra note 1, at 117.22 Allen, 468 U.S. at 788 (Stevens, J., dissenting), as reprinted in Fallon, et al., supra note 1, at 112.23 See, e.g., Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mothers lacked standing to sue a prosecutor for not bringing criminal charges against deadbeat fathers because putting the fathers in jail wouldn’t actually get the child support paid), discussed in Fallon, et al., supra note 1, at 124; Simon v. E. Ky. Rights Org., 426 U.S. 26 (1976) (no standing for indigents to challenge the IRS dropping a tax incentive for hospitals that provided support for indigents because it wasn’t clear that dropping the tax incentive was what actually drove the hospitals’ decision not to treat indigents) discussed in Fallon, et al., supra note 1, at 124.24 See Norwood v. Harrison, 413 U.S. 455 (1973) (standing existed for parents to challenge state providing textbooks to discriminatory schools subject to a desegregation order; Allen distinguished this on the basis of the desegregation order, see Allen, 468 U.S. at 763–64, as reprinted in

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There are several other cases on taxpayer standing. In the 1923 case Frothingham v. Mellon,25 the Supreme Court held that a person lacked standing to challenge federal support of state programs that helped to reduce mother and infant mortality. Progressives at this time favored limited standing doctrine so as to prevent the Lochner-era Court from getting its mitts on progressive spending programs.

In 1968, the Court recognized a special cutout for establishment clause26 claims in Flast v. Cohen27—some sort of ridiculous “double nexus” theory. This is all but dead now.28

The two leading cases on legislative standing point in opposite directions and are pretty hard to distinguish.

In Coleman v. Miller,29 the Court held that state legislators who alleged their votes were overborne by a violation of the federal Constitution had standing. Contrastingly, Raines v. Byrd 30held that members of Congress lacked standing to challenge the Line Item Veto Act on the ground that Act diluted their voting power.

The Court distinguished the cases by noting that Coleman involved the complete nullification of the state legislators’ votes while Raines dealt with an allegation of dilution only and that therefore Coleman involved individual rights while Raines involved institutional rights.

Professor Manning thinks the real distinction has more to do with the Court’s feelings about the appropriate role of the judiciary.

[B] – Lujan

Lujan v. Defenders of Wildlife31 is now the leading standing case. It was probably the first time the Court struck down a statute on standing grounds.32

The respondent brought suit, challenging a regulation the Secretary of the Interior promulgated under the Endangered Species Act. The regulation said that government agencies need not consider the impact of their actions on endangered species abroad. Defenders said that this regulation was an unlawful interpretation of the Act.

Because organizational standing requires showing harm to specific members,33 Defenders trotted out Kelly and Skilbred, who had visited animal habitats in the past and had vague plans to do so in the future.

The Court came up with a set of rules, but it’s important to point out that they’re mostly B.S.: the entire point is to cater to the Court’s intuition of who is and who isn’t an ideological plaintiff, about what really motivates the suit:

“All of the doctrines that cluster about Article III—not only standing but mootness, ripeness, political question, and the like—relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.”34

The rule is this:

Fallon, et al., supra note 1, at 108–09).25 262 U.S. 447 (1923), discussed in Fallon, et al., supra note 1, at 120.26 U.S. Const. amend. I.27 392 U.S. 83 (1968), discussed in Fallon, et al., supra note 1, at 121.28 See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464 (1982) (no standing for taxpayers to challenge a transfer of property to a religious organization because (1) it was accomplished by an executive agency, and (2) was based on a clause other than the taxing and spending clause); Hein (no standing because the spending was not pursuant to a specific statute but rather general appropriations); Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) (no taxpayer standing to challenge religious spending through tax expenditures rather than appropriations). See generally Fallon, et al., supra note 1, at 120–22.29 307 U.S. 433 (1939), discussed in Fallon, et al., supra note 1, at 122–23.30 521 U.S. 811 (1997), discussed in Fallon, et al., supra note 1, at 123.31 504 U.S. 555 (1992), as reprinted in Fallon, et al., supra note 1, at 129. 32 But cf. Muskrat v. United States, 219 U.S. 346 (1911) (dismissing on non-adversarialness grounds a suit in which a litigant colluded with a disinterested opponent to manufacture a case).33 Sierra Club v. Morton, 405 U.S. 727 (1972).34 Allen, 468 U.S. at 751, quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–79 (D.C. Cir. 1983) (Bork, J., concurring), as reprinted in Fallon, et al., supra note 1, at 104

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“the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is” o “concrete and particularized,” and o “actual or imminent, not conjectural or hypothetical”;

“there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court”; and

“it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”35

The burden is on the person seeking to establish standing.36

The Court determined that although the harm was particularized, the plaintiffs could not prove that it was imminent, caused by the challenged regulation, or redressable by the remedy they sought.

Kennedy’s vote was necessary to the majority, and his concurrence put a puzzling gloss on the case. “In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view.”37

Professor Manning asks whether this means that Congress could create an injury by passing a statute that says, “All biologists have the right to study animals anywhere in the world, unimpeded by federal spending.” The majority suggests that it wouldn’t accept sham injuries concocted in statute simply to meet the injury-in-fact requirement. Put another way, the Court doesn’t believe that a loss of an inchoate future opportunity is an injury. But Kennedy seems to disagree.

Three other cases shed light on or perhaps further muddle the doctrine.

In Federal Election Commission v. Akins,38 the Court recognized an injury when the FEC refused to release information that a statute gave citizens a right to demand. The Akins Court distinguished Richardson v. United States,39 which held that a plaintiff lacked standing to force the CIA to reveal details of its budget. Although the accounts clause of the Constitution40 appeared to require this kind of disclosure, the Court reasoned that the plaintiff didn’t meet the double-nexus test of Flast, and more to the point the plaintiff had no statutorily conferred individual right to the information. This latter basis seems to support Kennedy’s theory in Lujan.

Massachusetts v. Environmental Protection Agency41 was thought at the time to confirm Kennedy’s theory completely, but may only reflect its unusual facts. The Court held that Massachusetts had standing to bring suit to force the EPA to issue regulations related to greenhouse gases—the EPA’s statute authorized certain challenges. The Commonwealth said that its coastal lands would be flooded, but this could be prevented by appropriate regulation. The Court reasoned that a statute recognizing a procedural injury could at least lower the requirements for causation and imminence, and that there was redressability if there was at least some possibility that the agency would reconsider. The dissent emphasized that the rule was at least cabined to states, which had some sort of extra standing oomph.

[C] – Costs and Benefits of Standing Doctrine

According to Professor Manning, there are reasons to liberalize standing and reasons to limit it. Strict standing doctrine makes it easier for regulated entities to have standing to chip away at regulation while keeping the public out of court. The intuition-driven approach is hard to anticipate. And if it’s an impossible morass, shouldn’t the courts defer more to Congress? On the other hand, liberalizing standing doctrine would consume judicial resources and shift enforcement from expert agencies to generalist courts.

35 Lujan, 504 U.S. at 560–61, as reprinted in Fallon, et al., supra note 1, at 130 (citations omitted, internal punctuation altered).36 Lujan, 504 U.S. at 561, as reprinted in Fallon, et al., supra note 1, at 130.37 Lujan, 504 U.S. at 580 (Kennedy, J., concurring), as reprinted in Fallon, et al., supra note 1, at 135.38 524 U.S. 11 (1998), discussed in Fallon, et al., supra note 1, at 142–44. 39 418 U.S. 166 (1974), discussed in Fallon, et al., supra note 1, at 116, 143–44.40 U.S. Const. art. I, § 9, cl. 7.41 549 U.S. 497 (2007), discussed in Fallon, et al., supra note 1, at 144.

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§ 2.03 – The Political Question Doctrine

Sometimes a case is ripe, not moot, the litigants have standing—but a court refuses to hear it because of the political question doctrine. Is this okay? And what does it mean? Professor Manning seems to believe that the political question doctrine involves a lot of peeking at the merits, à la the parol evidence rule. This is because it seems likely that the Court would always intervene if the political branches went beyond some outer limit of lawful behavior; thus the question is one of line drawing.

[A] – The Basics

In Baker v. Carr, the Court identified six situations in which the political question doctrine was applied:

“a textually demonstrable constitutional commitment of the issue to a coordinate political department”; “a lack of judicially discoverable and manageable standards for resolving it”; “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial

discretion”; “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect

due coordinate branches of government”; “an unusual need for unquestioning adherence to a political decision already made”; and “the potentiality of embarrassment from multifarious pronouncements by various departments on one

question.”42

An important political-question case arose in connection with federal judge Walter Nixon’s impeachment. The Senate allowed a committee to hear evidence and report to the full body. Nixon claimed that this violated the impeachment trial clause,43 which he viewed as requiring the full Senate to conduct the trial.

The Court in Nixon v. United States44 held that the impeachment trial clause vests the Senate with exclusive authority for the conduct of impeachment trials.

First, the Court reasoned that the clause represents a textual commitment of the power to the Senate: it says, “The Senate shall have the sole Power to try all Impeachments.” (Emphasis added.) This isn’t as clear as the Court suggests; as Justice White suggested in his concurrence, the Court determines the contours of Congress’s powers under Article I, § 8 all the time.

Second, the Court said the word “try” is not a judicially manageable standard against which to measure the Senate’s actions. Again, this is a bit peculiar: who knows better than the courts what it is to “try” someone?

According to Professor Manning, both of these arguments are necessary: the holding rests upon an unusually specific textual commitment plus a standard that’s not entirely clear.

A few other cases fill in the doctrine.

In Luther v. Borden,45 a case decided in 1849, the Court declined to consider whether a state government was republican in form (a requirement of the guarantee clause46).

Demonstrating a limit to the doctrine, the Court in Powell v. McCormack47 held that it was unconstitutional for the House of Representatives to require more of an elected member than that he meet the qualifications expressly laid out in Article I. The Court did note that the House was the final arbiter of whether members actually met the requirements.

42 369 U.S. 186, 217 (1962), discussed in Fallon, et al., supra note 1, at 234.43 U.S. Const. art. I, § 3, cl. 6.44 506 U.S. 224 (1993), as reprinted in Fallon, et al., supra note 1, at 222.45 48 U.S. (7 How.) 1 (1849), discussed in Fallon, et al., supra note 1, at 241.46 U.S. Const. art. IV, § 4.47 395 U.S. 486 (1969), discussed in Fallon, et al., supra note 1, at 236.

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[B] – The Classical / Merits View

Professor Manning posed a series of hypotheticals to demonstrate cracks in the doctrine. What if Walter Nixon were convicted based upon a coin-flip? What if a state government were run by a hereditary monarch? What if the House rejected Adam Clayton Powell, Jr. (born 1908) because it found as a matter of fact that Powell was only 24 years old in 1968?

The point (and this is Wechsler’s view, too,48 and similar to Souter’s concurrence in Nixon) is that the political question doctrine means (1) this decision is vested in _____ (Congress, the President, etc.), (2) within whatever limits, and (3) this is within those limits. If this is correct, step (3) is clearly a merits decision.

An alternative reading (e.g., Rehnquist’s in Nixon) is that the Court would defer even in these hypothetical cases. This is consistent with Marbury.

[C] – The Prudential View

Alexander Bickel argues that the political-question doctrine is prudential.

“[O]nly by means of a play on words can the broad discretion that the courts have in fact exercised be turned into an act of constitutional interpretation governed by the general standards of the interpretive process. The political-question doctrine simply resists being domesticated in this fashion. There is * * * something different about it, in kind not in degree; something greatly more flexible, something of prudence, not construction and not principle. And it is something that cannot exist within the four corners of Marbury v. Madison. * * * Such is the foundation, in both intellect and instinct, of the political-question doctrine: the Court’s sense of lack of capacity, compounded in unequal parts of (a) the strangeness of the issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be,; (d) finally (‘in a mature democracy’), the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth draw strength from.”49

Bickel’s ideas appear to be what animates the list the Baker Court discussed. But what is the source of the judiciary’s power to choose not to resolve cases?

Several cases involving the military and foreign relations seem to support this view.

In Goldwater v. Carter,50 Justice Rehnquist (in a opinion concurring with the summary vacation of a lower court order) wrote that the authority to terminate a treaty is a political question. In Japan Whaling Ass’n v. American Cetacean Society,51 the Court refused to apply the political-question doctrine to a case that would pass upon whether the Secretary of Commerce was correct to certify whether Japanese whalers were in compliance with an international program.

The Court denied certiorari to several cases attacking the legality of the Vietnam War.52

Professor Manning gave an example based upon a case arising out of the War of 1812, Martin v. Mott.53 Imagine Congress passes a statute authorizing the President to mobilize troops in the case of invasion or insurrection. Obama calls out Massachusetts National Guard to defend the border between Vermont and Canada, believing invasion is imminent. A member of the militia resists deployment, is tried for insubordination by a court martial, and seeks to defend on the ground that there was no invasion or insurrection. Martin held that this was a political question. But note the significant liberty interest at stake and the seeming availability of judicially manageable standards. As with the Vietnam cases, the Court seems motivated by the desire to avoid meddling in military affairs.

48 See Fallon, et al., supra note 1, at 232–33.49 Fallon, et al., supra note 1, at 233, quoting Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 125–26 (1962).50 444 U.S. 996 (1979), as discussed in Fallon, et al., supra note 1, at 243.51 478 U.S. 221 (1986), as discussed in Fallon, et al., supra note 1, at 244.52 See generally Fallon, et al., supra note 1, at 244–45.53 25 U.S. (12 Wheat.) 19 (1827).

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Note too that the Court has not applied the political question doctrine when it could have.54 This further supports the prudential argument.

The danger of the prudential view is that it’s unpredictable and ad hoc. Professor Manning asks whether this undermines the rule of law.

54 See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944).

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Chapter 3 – Congressional Control Over Federal Court Jurisdiction

There are two big questions here. First, how much can Congress control the jurisdiction of the federal courts to adjudicate federal questions—and how much can it leave to the states? Second, are state courts adequate, and are they or must they be available to adjudicate federal questions?

Professor Fallon outlines two models: the federalist model and the nationalist model. The federalist model (antifederalist model?) argues that the states retained a lot of sovereignty, and that they ought to play a substantial role in adjudicating federal rights—the federal courts are organized around the Madisonian Compromise. The nationalist model, on the other hand, has it that however things were arranged at the framing, Reconstruction and the evolution of constitutional law in the Twentieth Century have shifted the state–federal balance. Thus, federal courts must always be available to check the work of the state courts.

§ 3.01 – The Relationship Between Federal and State Court Jurisdiction

The big-picture conclusions are these:

State courts are in parity with federal courts. State courts are presumptively available to hear federal claims. Congress can abrogate state court jurisdiction to hear specified kinds of claims. State courts cannot discriminate against federal claims, nor refuse to hear federal claims because of a

disagreement with substantive federal law or policy. State courts have a requirement arising under the due process clause55 to hear certain federal constitutional

claims, especially those relating to alleged takings of property.

[A] – The Presumption of Federal–State Court Parity: Tafflin v. Levitt

In Tafflin v. Levitt,56 the Court held that state courts have concurrent jurisdiction over civil RICO claims because the statute neither expressly nor impliedly excluded state jurisdiction, and state jurisdiction was compatible with federal interests in that area.

Thus, Tafflin affirms the parity presumption first discussed in Claflin v. Houseman:57 state courts generally enjoy concurrent jurisdiction with federal courts over federal claims. The exceptions are:

an “explicit statutory directive”; an “unmistakable implication from legislative history”; or “a clear incompatibility between state-court jurisdiction and federal interests,” including—

o “the desirability of uniform interpretation, o the expertise of federal judges in federal law, and o the assumed greater hospitality of federal courts to peculiarly federal claims.”58

The Court reasoned that federalism and the supremacy clause59 are the only limits upon state judicial power. In his concurring opinion, Justice Scalia argued that federal law is state law by operation of the supremacy clause; thus it makes perfect sense for state courts to apply it.

The explicit statutory directive test is quite strict: it prevents normal methods of statutory interpretation like negative implication and the expressio-unius canon. And though Scalia didn’t like the legislative history test, it remains good law.

55 U.S. Const. amend. XIV, § 1.56 493 U.S. 455 (1990), as reprinted in Fallon, et al., supra note 1, at 384.57 93 U.S. (3 Otto) 130 (1876).58 Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 483–84 (1981).59 U.S. Const. art. VI, cl. 2.

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[B] – Congress’s Power to Create Exclusive Federal Jurisdiction: Tennessee v. Davis

In Tennessee v. Davis,60 the Court applied a federal removal statute to preclude state jurisdiction over a federal officer. Davis was a federal revenue officer who shot it out with a bootlegger, killing the man. Tennessee brought Davis up on murder charges, and Davis sought to remove the cause to federal court. The federal removal statute purported to allow removal, but the issue was whether the statute was constitutional.

The Court held that the statute was allowable under the grant of federal question jurisdiction in Article III, Section §2, Clause 1 and the necessary-and-proper clause61.

Davis is the corollary to Tafflin, showing that Congress has significant power to abrogate state jurisdiction, even in cases that involve issues seemingly core to the state police power.

[C] – State Court Authority to Issue Writs Against Federal Officials: Tarble’s Case

Edward Tarble joined the military unlawfully, lying about his age. His dad brought a petition for habeas corpus in Wisconsin state court to order Edward’s release from military custody. The state court granted the writ. But in Tarble’s Case,62 the Supreme Court overruled the state court.

The Court reasoned that the state and federal government have independent power, and that when the Venn diagram overlaps by necessity, the supremacy clause applies. Thus, state courts can never have authority over the federal government. Moreover, this would make it very difficult for the military to do its business. And the federal courts are open for these sorts of claims.

Note that Tarble’s Case stomps a giant mudhole in the parity presumption, and seems inconsistent with the Madisonian Compromise. We can try to come up with principled distinctions, but they don’t seem right: the Court never discusses any of this. Perhaps it’s the post-Civil War / Reconstruction context. But it seems that the Supreme Court still pays lip service to parity—in Tafflin for example. Perhaps instead there’s some special idea of military preclusiveness or necessity (think the dormant commerce clause, but for military affairs). Perhaps this fits within the third exception in Gulf Offshore.

What if Congress had never created lower federal courts? Would Tarble’s Case be the law?

[D] – Discrimination Against Federal Claims in State Court: Testa

[1] – The Rule

The federal Emergency Price Control Act gave certain claimants a cause of action in any court of competent jurisdiction. The Rhode Island courts refused to hear a case based upon that statute. In Testa v. Katz,63 the Supreme Court said nuh-uh. Though the supremacy clause doesn’t textually require this, the Court reasoned penumbrally.

Testa stands for two things:

state courts cannot discriminate against federal claims, and state courts cannot refuse to entertain federal claims because the state disagrees with the policy.

But this doesn’t mean that state courts invariably must entertain federal claims. There are valid excuses.64 On the other hand, states are still in violation of Testa’s non-discrimination principle if they act discriminatorily under the authority of facially neutral statutes or precedents.65

60 100 U.S. (10 Otto) 257 (1880), as reprinted in Fallon, et al., supra note 1, at 384.61 U.S. Const. art. I, § 8, cl. 18.62 80 U.S. (13 Wall.) 397 (1872), as reprinted in Fallon, et al., supra note 1, at 398.63 330 U.S. 386 (1947), as reprinted in Fallon, et al., supra note 1, at 408.64 See, e.g., Douglas v. N.Y., N.H. & H.R.R., 279 U.S. 377 (1929) (state could decline to hear a federal claim in a case that would also be declined under state law), discussed in Fallon, et al., supra note 1, at 414; Herb v. Pitcairn, 324 U.S. 117 (1945) (state could decline to here federal claim when it would jurisdiction over similarly-situated state claim), discussed in Fallon, et al., supra note 1, at 414.65 Cf. Felder v. Casey, 487 U.S. 131 (1988) (striking down a facially neutral state statute that was inconsistent with the policies embodied in 42 U.S.C. § 1983), discussed in Fallon, et al., supra note 1, at 414.

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Professor Manning offers two hypotheticals to illustrate the doctrine:

1. Testa doesn’t meet Rhode Island’s amount-in-controversy requirement, a pleading requirement, or a forum-non-conveniens rule. Okay, probably.

2. Rhode Island has a statute that says no Rhode Island court has jurisdiction over any worker’s compensation claim. Not okay: this is an example of a state disagreeing with substantive federal policy.66

[2] – Limit: Commandeering and the Tenth Amendment

In Federal Energy Regulatory Commission v. Mississippi,67 the Supreme Court held that a federal statute that required state utility regulators to “consider” certain other policies didn’t violate the Tenth Amendment because the federal government had the authority to preempt that area of regulation entirely, and this implied the lesser authority to permit state regulation only if the states meet particular requirements.

But New York v. United States68 and Printz v. United States69 reached a different result. These cases distinguished Testa and FERC v. Mississippi, holding that while the federal government could require the states to do certain things with their courts and “consider” certain policies, the Tenth Amendment prevents the federal government from commandeering the states’ political branches.

Professor Manning thinks that even more aggressive commandeering of state courts would probably be upheld. For example, a statute might require state courts to hear worker’s compensation claims and specify that the state courts must follow the Federal Rules of Evidence. Manning thinks that because the Madisonian Compromise contemplates no lower federal courts, it probably implies the power for the Congress to control state courts pretty substantially.

[E] – Jurisdiction Over State Cases Implied by the Due Process Clause: Ward v. Love County

Until 1908, Choctaw lands in Oklahoma were subject to restrictions on alienation but were untaxable. In 1908, Congress changed the law, treating Indian lands like any other. The Supreme Court held that the tax exemption was a vested property right protected by the takings clause.70 But while that case was pending, Oklahoma aggressively sought to collect taxes from the tribe, imposing draconian penalties for nonpayment. Yet once the tribe won its Supreme Court case, Oklahoma said it had no means to pay back the taxes, which it said weren’t in any event taken coercively. The tribe challenged this, reaching the Supreme Court again.

In Ward v. Love County, the Court held that “if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.”71

This, says Professor Manning, is dramatic. The Court recognized (1) a substantive due process right not to have taxes assessed in a manner that violates the takings clause, and (2) a (substantive? procedural?) due process right to a remedy. In other words, the due process clause provides an implied right of action that supplies a basis for the Supreme Court to review a state court’s neutral rule.

More broadly, Ward seems to suggest a due process right to a hearing when the state deprives you of property.

In McKesson v. Division of ABT,72 the Supreme Court held that the due process requires a state to set up a mechanism to refund unlawful taxes if it requires you to pay taxes before challenging the tax law. Reich v. Collins73 stated the rule even more starkly: taxes that are unlawful under federal law violate the due process clause, and a right of action lies notwithstanding the doctrine of sovereign immunity.

And the broadest reading of Ward and General Oil Co. v. Crain74 is that some court must be open to claims of constitutional violations.66 Cf. Mondou v. N.Y., N.H., & H.R. Co., 223 U.S. 1 (1912).67 456 U.S. 743 (1982), discussed in Fallon, et al., supra note 1, at 415.68 505 U.S. 144 (1992), discussed in Fallon, et al., supra note 1, at 416.69 521 U.S. 898 (1997), discussed in Fallon, et al., supra note 1, at 416.70 U.S. Const. amend V.71 253 U.S. 17, 24 (1920) (emphasis added, internal quotation marks omitted), as reprinted in Fallon, et al., supra note 1, at 716, 718.72 496 U.S. 18 (1990), discussed in Fallon, et al., supra note 1, at 720–21.73 513 U.S. 106 (1994), discussed in Fallon, et al., supra note 1, at 721.74 209 U.S. 211 (1908), discussed in Fallon, et al., supra note 1, at 723–24.

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§ 3.02 – Congressional Control Over Federal Court Jurisdiction

It’s federal court orthodoxy that Congress has lots of power to define jurisdiction. But the precise limits are somewhat unclear. There are probably at least two absolute limits: (1) no stripping all jurisdiction for federal claims, and (2) no stripping jurisdiction to determine jurisdiction.

[A] – Jurisdiction Stripping

[1] – Leading Cases

In Sheldon v. Sill,75 the Supreme Court upheld a statute that disallowed federal diversity jurisdiction when a person manufactures diversity by assigning a contract to the citizen of a different state. The Court rejected what seemed like a pretty persuasive argument: Article III’s vesting clause gives the courts the judicial power. This said the respondent, is what Article III, Section 2 lays out. It can only be switched on or off, not qualified.

But the Court rejected these arguments. The respondent’s view contradicts long practice—including the Judiciary Act of 1789, which vested the lower federal courts with less authority than Section 2 contemplates. So although the respondent’s argument might have been persuasive as a matter of first impression, the Court seemed to think that too much water had gone under the bridge.

In Ex parte McCardle,76 the Supreme Court dismissed a case that was pending when Congress changed the jurisdictional statute. McCardle ran a newspaper in Reconstruction-era Mississippi, and was to be tried by Military Commission for printing his paper in violation of the Military Reconstruction Act. The Court agreed to review a petition for habeas corpus. But before the cause reached the Court, Congress amended the habeas statute to remove the Court’s jurisdiction. The Court held that this was allowable.

[2] – Internal and External Constraints

One can conceive of internal and external constraints on Congress when it comes to controlling federal-court jurisdiction. Internal constraints are those arising from within Article III. External constraints are limits that flow from other provisions, like the due process clause.

Some possible examples of what probably does and what probably doesn’t run afoul of internal constraints:

Congress passes a statute that says “The Supreme Court shall have no appellate jurisdiction over any cases or controversies.” This would probably violate the exceptions clause77 because it’s not an exception—it strips all authority. But it’s unclear just how much jurisdiction must remain so that what’s stripped is the exception.

Congress passes a statute that says no diversity jurisdiction. Probably no problem. Congress passes a statute that says no Supreme Court jurisdiction over constitutional cases. This seems like

only an exception, but it is getting into the ballpark of threatening the rule.

There is a purposive argument that suggests the Court must be allowed some diversity and federal-question jurisdiction: the framers assumed that the Court would assure the uniformity and supremacy of federal law.

On the other hand, this doesn’t seem to be required by the text. And Oliver Ellsworth apparently drafted both Article III and the 1789 Judiciary Act, so it seems unlikely that the two are wildly inconsistent.

[3] – The Court’s Response to Jurisdiction-Stripping Statutes

Despite Congress’s perhaps plenary authority to strip jurisdiction, the Supreme Court tends to find creative ways to read the statutes so they don’t strip jurisdiction.

75 49 U.S. (8 How.) 441 (1850), as reprinted in Fallon, et al., supra note 1, at 283.76 74 U.S. (7 Wall.) 506 (1869), as reprinted in Fallon, et al., supra note 1, at 285.77 U.S. Const. art. III, § 2, cl. 2.

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For example, in both Ex parte Yerger78 and Felker v. Turpin,79 the Court responded to having its appellate habeas jurisdiction stripped in a class of cases by granting original writs of habeas. The Court has even claimed that it is not “a Court of the United States” in order to avoid a jurisdiction-stripping statute.

Also note that the Court struck and severed a jurisdiction-stripping provision in Boumediene v. Bush.80

[4] – The Story / Amar Theory of Mandatory Jurisdiction

Joseph Story advanced a theory in Martin v. Hunter’s Lessee81 that Akhil Amar apparently pretended that he invented. Amar’s theory82 is basically that there are two tiers of federal jurisdiction. The first three heads of jurisdiction in Article III83 are mandatory; the last six are discretionary for Congress. The key to his claim is that the first three categories say “all cases”; the last six don’t.

Amar argues that various sources are consistent with his theory:

the legislative history; the text of the Judiciary Act of 1789; early Supreme Court precedent and practice; and the constitutional design.

Professor Meltzer disputes each of these points.

Professor Manning says this is a strong—but not airtight—textual argument. It seems unlikely that the framers didn’t mean anything by changing language midstream in Article III. And the word “all” is quite strong. But then again, the Constitution does sometimes use the word “case” a bit more promiscuously than Amar would have it. In setting out the Supreme Court’s appellate jurisdiction, the Constitution refers to the entire enumeration of jurisdictional categories as “all the other Cases before mentioned.”84

Most important to Professor Manning is the amount of water that has passed beneath the bridge (or over the dam, or perhaps the number of cows that have already gone out to the yard). The Court would have to act extremely boldly and contrary to long practice to change things now. Amar may have argued to a tie on the text, but Manning says he probably considers the history to be decisive.

[5] – Jurisdictional Statutes That Foist Rules of Decision on Courts

In United States v. Klein,85 the Court struck down a jurisdiction-stripping statute, though the Court’s reasoning was pretty much incomprehensible. During the Civil War, the Union seized Klein’s cotton for his disloyalty. Andrew Johnson pardoned him after the war. Earlier Supreme Court precedent treated a pardon as a proof of loyalty. But as Klein’s case was pending, Congress passed a law that (1) said a presidential pardon was actually evidence of disloyalty, and (2) federal courts lacked jurisdiction to hear claims like Klein’s that involved a pardon.

Klein is difficult to distinguish from Lauf v. E.G. Shinner & Co.86 Before deciding Lauf, the Court had struck down state statutes that limited remedies in employment cases. In those earlier cases, the Court held that jurisdictional laws violated the due process clause by denying all effective remedies for alleged violations of certain common law rights; and that laws violated the equal protection clause by denying injunctive relief for employment claims when injunctive relief was available for similar claims not in the employment area. But in Lauf, the Court held that a very similar federal scheme, the Norris-LaGuardia Act, was constitutional. That Act restricted the authority of any court to issue injunctions or enforce some contracts relating to employment.

78 75 U.S. (8 Wall.) 85 (1869).79 518 U.S. 651 (1996), discussed in Fallon, et al., supra note 1, at 297.80 See Section 4.01[B][2], below.81 14 U.S. (1 Wheat.) 304 (1816), discussed in Fallon, et al., supra note 1, at 288.82 See Fallon, et al., supra note 1, at 300–02.83 U.S. Const. art. III, § 2, cl. 1.84 Id. art. III, § 2, cl. 2.85 80 U.S. (13 Wall.) 128 (1871), discussed in Fallon, et al., supra note 1, at 303.86 303 U.S. 323 (1938), discussed in Fallon, et al., supra note 1, at 293.

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Both cases seem to deal with statutes that pretend rules of decision are actually jurisdictional rules. Klein seems to come down to the Court disapproving a statute that sought to effect a particular result in a particular kind of case. But it’s not totally clear why this wasn’t the case for Lauf. Perhaps it’s that the statute in Klein aimed a particular result even more directly than Lauf.

If Klein does stand for the proposition that Congress can’t pass jurisdictional statutes that have the effect of dictating rules of decision, it’s hard to see how we draw a line between this and the ordinary rule that statutes passed while cases are pending bind the courts. The case law on retroactivity for civil statutes is very lax: there need only be a rational basis for retroactivity.

Perhaps the most important facts in Klein are these: Congress denied Klein a remedy for a constitutional right; and sovereign immunity denied Klein any remedy.

[6] – Jurisdiction to Determine Jurisdiction

In Battaglia v. General Motors Corp.,87 the Second Circuit seemed to hold, Escher-like, that courts have jurisdiction to determine whether or not they have jurisdiction. “Since Congress . . . otherwise had the power to enact the Portal-to-Portal Act, the fact that one of the Act’s incidental effects is to prevent the courts from following the [Supreme Court’s decisions interpreting the Fair Labor Standards Act], is of no importance.”88

It’s interesting to contemplate what the Second Circuit would have done had it thought the Act was unconstitutional. Could or would the court have struck and severed the jurisdictional component?

Professor Hart argued that the Second Circuit should have said something like, “We don’t have jurisdiction, end of story. But if you’re worried about this being unconstitutional, there’s a state court across the street—it doesn’t rely upon Congress for its authority.” Professor Manning says this seems more consistent with the Madisonian Compromise. On the other hand, some state courts really do suck, so it’s a conundrum.

[B] – Jurisdictional Gerrymandering

In Lockerty v. Phillips,89 the Court upheld a provision of the Emergency Price Control Act of 1942 that set up a special court of limited jurisdiction to hear claims under the Act and denied jurisdiction to any other court. The plaintiff sued in district court to enjoin enforcement of the Act, but the court dismissed for want of jurisdiction under the Act itself. Though the special court couldn’t grant injunctive relief, that limit was severable. So the correct procedure for the plaintiff would apparently have been to file a claim in the special court, preserve the claim for injunctive relief in an appeal to Supreme Court, then litigate both the substantive and jurisdictional claim there.

What if Congress says you can only challenge the validity of regulations in a particular court, by an affirmative suit, and within a time limit? If you’re prosecuted under the regulations, you can’t raise their validity as a defense. The Court upheld just such a “claim splitting” scheme in Yakus v. United States,90 holding it didn’t violate Article III.

Now that World War II is over with, the Court probably would strike this down as violating procedural due process under Mathews v. Eldridge.91

[C] – Federal Court and Agency / Non-Article-III Adjudication

The fundamental inquiry animating the law in this area is that the Court wants to have some way of checking to assure that non-Article III adjudicators are not acting beyond their authority. The doctrinal tests have changed over time, however.

87 169 F.2d 254 (2d Cir. 1948), as reprinted in Fallon, et al., supra note 1, at 305.88 Battaglia, 169 F.2d at 264, as reprinted in Fallon, et al., supra note 1, at 308.89 319 U.S. 182 (1943), discussed in Fallon, et al., supra note 1, at 321.90 321 U.S. 414 (1944), discussed in Fallon, et al., supra note 1, at 322.91 424 U.S. 319 (1976).

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In the 1980s, the Court detonated a bomb beneath the leading cases in this area. Now, the standard to apply when non-Article III tribunals adjudicate private rights is Commodity Future Trading Commission v. Schor.92 The leading case for public rights is Thomas v. Union Carbide Agricultural Products.93

Note what’s at stake here. Congress claims that it needs administrative adjudication to assure that experts solve certain kinds of problems. And because of life tenure and salary protection, Congress is stuck with judges even if it decides to get rid of special courts—this isn’t a problem with non-Article III tribunals.

But most importantly, Congress is jealous of its power, and wants organizations that are like courts but not so damned independent. Is this worrisome? Yes, says Professor Manning.

Also, it bears noting that the definitions of private and public rights have shifted over time. I hold off on providing a clear definition until discussing the cases that remain good law in order to avoid describing something both complicated and wrong.

[1] The Old Tests: Crowell through Northern Pipeline

The first important case in this area was Crowell v. Benson.94 Crowell involved agency adjudication of longshoremen’s worker’s compensation claims. The Crowell Court gave an administrative tribunal authority to resolve certain maritime claims on question of both fact and law.

The Court distinguished those facts that were “basic” from those that were “jurisdictional” or “constitutional.” Jurisdictional facts are those that are condition precedent to the statute’s applicability—if the statute doesn’t apply, the agency doesn’t have jurisdiction in the first place.

On appeal to the district court, basic facts could be protected by a JNOV-like reasonable-person / -juror standard. Questions of law and jurisdictional facts were reviewable de novo.

Half a century later, the Court decided Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,95 the only case in which it struck down a legislative court. The case involved the Bankruptcy Act of 1978, which vested the Bankruptcy Court with the power to resolve peripheral state-law claims during a bankruptcy proceeding. The plurality wrote that this provided a non-Article III court with “essential attributes” of Article-III power. Unlike Crowell, the tribunal here could resolve any subject matter that arose during a bankruptcy proceeding; could do too much factfinding; could offer too many remedies; and was treated with too much deference by a reviewing court—the clearly-erroneous standard.

Thus, Northern Pipeline took a bite out of Crowell. Crowell had allowed a non-Article III tribunal plenary authority within a particular area; Northern Pipeline did not allow common law claims. And Northern Pipeline disapproved the more searching clear-and-convincing-evidence standard when Crowell had allowed the more deferential JNOV-like standard.

[2] – Private Rights: Schor

Private rights are those arising under common law, admiralty law, and the like, and those from statutes that codify preexisting common law rights. In order for a non-Article III tribunal to adjudicate private rights, it must now meet the requirements from Schor.

Schor laid out a four-factor test that’s great, says Professor Manning, because it can come out any way you like:

“the extent to which the essential attributes of judicial power are reserved to Article III courts,” “the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally

vested only in Article III courts,” “the origins and importance of the right to be adjudicated,” and

92 478 U.S. 833 (1986), as reprinted in Fallon, et al., supra note 1, at 349.93 473 U.S. 568 (1985).94 285 U.S. 22 (1932), as reprinted in Fallon, et al., supra note 1, at 324.95 458 U.S. 50 (1982), discussed in Fallon, et al., supra note 1, at 342.

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“the concerns that drove Congress to depart from the requirements of Article III.”96

Schor upheld a provision that allowed the CFTC to hear state-law counterclaims that arose in reparation proceedings filed against commodities future brokers. The CFTC’s proceedings were reviewable by an Article III court under the weight-of-the-evidence standard.

The first factor considers whether the agency looks too much like a court: can it issue self-executing judgments and writs; is it entitled to a weight-of-the-evidence standard or something more deferential?

The second factor considers how much of the judicial power the agency takes over: just counterclaims within a small area of law, or something bigger? Note the possibility of agencies systematically arrogating small amounts of power, resulting in a big change.

The third factor considers whether and how much the tribunal passes upon private law questions. This blends a bit with the first factor.

The fourth factor has fallen far from Crowell’s requirements: rather than utopian ideas about agency expertise, the Court seems more concerned with things like workability and efficiency.

In some ways, Schor seems like a more honest version of what the Crowell Court considered. But once again, there’s the danger of the separation of powers being eroded over time. And this seems unnecessary, at least to John Francis Manning, because Congress has tons of authority to create and tailor Article-III courts.

[3] – Public Rights: Thomas

Although the earlier cases defined public rights with bright line rules (for example, requiring that the government be a party), the Thomas Court took a more abstract approach: “In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that could be conclusively determined by the Executive and Legislative Branches, the danger of encroaching on the judicial powers is reduced.”97

So public rights are the kinds of rights the government creates—that lack antecedents in the common law or similar sources. For example, a person denied a grant by the National Endowment for the Humanities perhaps can sue, but could also go to the NEH office and complain, or call her Congressperson.

Thomas involved a public right that might have looked like a private right under earlier schemes. The Federal Insecticide, Fungicide, and Rodenticide Act required companies that had already received EPA approval for their products to provide data to new applicants for a fee. If the companies couldn’t agree on a price, the Act required them to submit to binding arbitration. Although this concerned only private companies, the Court held that it was a public rights case. Thus, the Court approved the binding arbitration provision, from which there was only limited review.

It was crucial to the Thomas Court that the arbitration was tightly bound up with a comprehensive regulatory scheme. And it also seemed relevant that Congress could have achieved precisely the same result merely by setting up a system of subsidies and fees, perhaps in tandem with mandatory disclosure to win EPA approval.

Professor Manning says that he’d freak out about the way the law has gone, except that executing the law is in concept hopelessly bound up with the adjudication. For example, when the mailman weighs a package, he is in some sense adjudicating whether the parcel meets the USPS’s regulatory standards.

Hayburn’s case sets another limit on public rights: Congress can get can’t force a court to do nonadjudicative stuff.

Notwithstanding Thomas, there may be some circumstances under which a court would review a public right. Due process may lead courts to read statutes creatively in the face of ultra vires agency behavior. If an agency willfully misconstrued its mandate or acted well outside of its powers, courts would find some way to slap them down.

96 Schor, 478 U.S. at 851 (internal quotation marks omitted), as reprinted in Fallon, et al., supra note 1, at 353.97 Thomas, 473 U.S. at 589.

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[4] – Agency Determinations in Criminal Cases: Falbo, Estep,98 and Mendoza-Lopez

Two other cases involving agency adjudication help fill in the ultra vires point. When agency determinations feed into criminal cases, review becomes even more important.

In Falbo v. United States,99 the Supreme Court held that a draftee who challenged the denial of conscientious objector status could not assert misclassification as a defense when he was prosecuted for not showing up.100

Estep v. United States101 involved facts like Falbo, but with a key difference. Estep exhausted the administrative process, lost, then refused to be inducted into the military. He was permitted to assert that he was misclassified when prosecuted.

Estep controlled United States v. Mendoza-Lopez.102 There, a deportee claimed that the INS judge in his deportation hearing failed to inform him of his right to appeal. Mendoza-Lopez reentered the U.S. and was prosecuted. The Court held that he could raise the judge’s failure as a defense. By failing to meet this requirement, the judge acted outside of his authority.

Agencies can use judgment and make arguable mistakes. But when they exceed their lawful authority or draw a conclusion that no reasonable person could draw and this feeds into criminal prosecutions, due process requires judicial review. You must jump through the hoops that Congress sets up in organizing the agency, but you must be allowed to challenge ultra vires governmental actions.

98 See generally Fallon, et al., supra note 1, at 336–37 (reprinting a dialogue by Professor Hart discussing these cases).99 320 U.S. 549 (1944).100 Cf. Yakus and text accompanying note 90, above.101 327 U.S. 114 (1946).102 481 U.S. 828 (1987), discussed in Fallon, et al., supra note 1, at 337.

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Chapter 4 – Habeas Corpus

§ 4.01 – Executive Detention and Suspension

I cover this topic rather briskly because I’ve read some of these cases four times now.

[A] – World War II and Before

Ex parte Milligan103 was the case in which the Court held Lincoln couldn’t try a disloyal U.S. citizen in a military commission in Indiana, where the courts were still open. Most importantly, the Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to a . . . trial[] by an impartial jury of the State and district wherein the crime shall have been committed . . . .” Strengthening the “all” language, the Fifth Amendment shows what a cutout for military necessity would have looked like. It says that the grand jury right attaches “except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . .”

Professor Manning says this is a good case: well-reasoned, frank, and most importantly, it reminds the political branches that they can always use the suspension clause.104

Ex parte Quirin105 reached a much different result. Even Justice Scalia said, “[t]he case was not this Court’s finest hour.”106 The Court rubber-stamped the execution of a group of German saboteurs, including two U.S. citizens. The Court distinguished between lawful and unlawful enemy combatants. The decision can’t have been driven by the difference between citizens and noncitizens, though that’s an interesting question. Professor Manning notes that there is no textual distinction among these categories.

The Quirin Court tried to grapple with the negative implication from the exception in the Fifth Amendment. The Court said that this was designed only to exempt ordinary military offenses—that neither Amendment contemplated unlawful enemy combatants. Clever enough, says Professor Manning, but because the text of the Fifth and Sixth Amendments seems crystal-clear, the Court has an uphill battle to justify its rule.

If Quirin is defensible, it’s because clear text sometimes does have exceptions—the First Amendment, for example. Wartime necessity has always been a powerful argument.

[B] – The “War on Terror”

[1] – The Cases Leading up to Boumediene

Hamdi v. Rumsfeld is different from the earlier cases in an important way: while Milligan and Quirin were about punishing people, Hamdi is about detention. Hamdi holds that detention of U.S. citizens is permissible, but that ordinary due-process analysis applies. Scalia’s dissent says this is treason or nothing—the treason clause107 totally occupies the field.

In addition to Hamdi, the important cases leading up to Boumediene v. Bush108 are:

Ahrens v. Clark.109 Held that habeas jurisdiction under the statute only runs to the place the petitioner is held.

Johnson v. Eisentrager.110 Applied Ahrens to a detainee held in Landsberg Prison, Germany. Braden v. 30th Judicial Circuit Court of Kentucky.111 Weakened Ahrens by allowing a prisoner detained in

one state to challenge another state in a habeas proceeding in the first state.

103 71 U.S. (4 Wall.) 2 (1866).104 U.S. Const. art. I, § 9, cl. 2.105 317 U.S. 1 (1942).106 Hamdi v. Rumsfeld, 542 U.S. 507, 569 (2004) (Scalia, J., dissenting), discussed in Fallon, et al., supra note 1, at 1183.107 U.S. Const. art. III, § 3, cl. 1.108 553 U.S. 723 (2008), as reprinted in Fallon, et al., supra note 1, at 1168, 1192.109 335 U.S. 188 (1948), discussed in Fallon, et al., supra note 1, at 1164.110 339 U.S. 763 (1950), discussed in Fallon, et al., supra note 1, at 1165.111 410 U.S. 484 (1973), discussed in Fallon, et al., supra note 1, at 1164.

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Rasul v. Bush.112 Held that Braden weakened Ahrens enough to undercut Eisentrager, at least as a statutory precedent.

After Rasul, Congress sought to strip habeas jurisdiction via the Detainee Treatment Act (DTA) and the Military Commission Act (MCA). The statutes had it that detainees could seek review only pursuant to § 1005(e) of the DTA. These statutes sought to meet the requirements of Hamdi.

The reviewing court was limited to deciding whether the Combat Status Review Tribunal (the military commission that determined the detainee’s status) met the standards set out by the Department of Defense, and if the Constitution or other U.S. laws applied, whether the Tribunal had complied with the relevant laws.

[2] – Boumediene

The Reach of the Writ

The writ of habeas corpus runs to Guantanamo Bay, so the suspension clause applies.

According to Professor Manning, Tarble’s Case helped make Boumediene so confusing. If state courts were able to review federal detention, we wouldn’t have a confusing body of law related to the problem of federal jurisdiction-stripping leaving detainees with no remedy. So although there was no such thing as federal-question jurisdiction before 1875, we find ourselves in a world where withdrawing (seemingly optional) federal habeas jurisdiction leaves detainees with no means to vindicate their due process rights. Note, habeas is the means of enforcing the due process clause.

Professor Manning thinks the Court probably reached the right result concerning the reach of the writ, even though the reasoning is almost outlandishly terrible. Justice Kennedy perhaps fights the dissenters to a draw on whether history answers the question. But Kennedy’s analysis of precedent is a complete absurdity. He condenses Eisentrager into a three-factor test:

1. “the citizenship and status of the detainee and the adequacy of the process through which that status determination was made;

2. the nature of the sites where apprehension and then detention took place; and 3. the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”113

The Procedures

Since the suspension clause applies, the Court had to decide whether the procedures are good enough. They’re not, though it’s not really clear why.

Congress might be able to suspend the writ. It’s colorable (although only just) that the terrorist attacks of September 11, 2001, were an “invasion.” If so, it’s an open question whether the Court would have the authority to review Congress’s determination on this count (one assumes it would be a political question).

The strange thing about the Court’s opinion is that the canon of constitutional avoidance seems like it could save the provisions, but Kennedy seems hell-bent on not using it. And so although judicial review lies for questions of law and fact, the Court says no. As Roberts’s dissent points out, the statute could be read to allow new exculpatory facts, but Kennedy refuses to read it this way. This seems to be the hook for striking down the statute.

Note the result is that the Court strikes and severs the jurisdictional provision.

Also note that habeas is different than due process. The Tribunals lived up to the requirements of Hamdi.

§ 4.02 – Review of State Court Convictions

Federal habeas review of state convictions has expanded and contracted over time. There are some important preliminaries about this kind of habeas:112 542 U.S. 466 (2004), discussed in Fallon, et al., supra note 1, at 1166.113 Boumediene, 553 U.S. at 766, as reprinted in Fallon, et al., supra note 1, at 1173.

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it only applies to custody, that is, a restraint on liberty like imprisonment and probation, not a fine; it is only available after exhausting state remedies, though this includes practical exhaustion; the petitioner must preserve the constitutional issues or else face procedural bar; there are presumptions that the state was correct; and there are limits on successive petitions.

Brown v. Allen114 launched the modern conception of federal habeas review of state convictions. But it has been cut back, first by cases like Teague v. Lane,115 then by the Antiterrorism and Effective Death Penalty Act of 1996.

[A] – The Original Conception and the Shift to Brown116

Originally federal habeas review of state convictions was limited to determining whether the state court had jurisdiction. Congress added heft to the statute through the Nineteenth Century. And sometimes the Court would consider a large enough error fatal to jurisdiction, and therefore grant habeas. But in 1953, the Court blew the door open with Brown.

Brown had no majority opinion (though bizarrely Justice Reed’s plurality opinion is denominated as the opinion of the court), but Justice Frankfurter’s opinion has been treated as controlling. He laid out six guidelines in habeas cases (the casebook only reprints five, so I do too):

“[A] prima facie case must be made out by the petitioner . . . [that] state[s] a federal question . . . .” “Failure to exhaust an available State remedy is an obvious ground for denying the application.” “If the record of the State proceedings is not filed, the judge is required to decide, with due regard to

efficiency in judicial administration, whether it is more desirable to call for the record or to hold a hearing.” “Unless a vital flaw be found in the process of ascertaining . . . facts in the State court, the District Judge

may accept their determination in the State proceeding and deny the application. On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide.”

“[S]o-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.”117

Thus, Brown stands for reviewing questions of law and mixed questions of law and fact de novo, and for deferring to facts.118

Justice Jackson fretted, as usual, about workable government—this would open the floodgates of litigation, particularly in light of the New Deal (and soon Warren) Court’s expansion of constitutional rights. Jackson would have limited habeas review to jurisdictional claims without a state remedy and to circumstances in which a defendant was improperly prevented from preserving his constitutional issue in the record.

And so the writ expanded over time, particularly in light of the Court’s suspicion of state actors during the civil rights era. But the tide turned in the 1980s.

[B] – Cutting Back Brown: Teague

Teague gelded Brown by limiting habeas courts in applying new law. Griffith v. Kentucky119 had set the standard for retroactivity in cases involving direct review; this was fairly generous. But Teague said that there was no retroactivity for a new constitutional rule for a habeas petitioner. There are two exceptions: first, there is retroactivity for a rule that recognizes a class of conduct that a state may not prohibit; second, there is retroactivity for protections implicit in the concept of ordered liberty (paradigmatically, no lawyer at trial). A “new rule” is one not dictated by precedent.

114 344 U.S. 433 (1953), as reprinted in Fallon, et al., supra note 1, at 1223.115 489 U.S. 288 (1989).116 See generally Fallon, et al., supra note 1, at 1220–23.117 Brown, 344 U.S. at 502–07 (Opinion of Frankfurter, J.), as reprinted in Fallon, et al., supra note 1, at 1226.118 See Townsend v. Sain, 372 U.S. 293 (1963) (discussing federal habeas review of facts), discussed in Fallon, et al., supra note 1, at 1268.119 479 U.S. 314 (1987).

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The upshot of Teague is that a district court can’t grant habeas for anything that happened since the conviction. And for rules that existed at the time of conviction, the question is essentially whether people can reasonably disagree about the application of law to facts.

Teague represents a shift from the goal of getting things right, whatever it takes, to respecting finality and balancing costs with benefits. It also affords more respect to state courts. If the state court is fundamentally acting in good faith, we view finality and comity as outweighing absolute certainty.

Note that the phrase “habeas corpus” in the statute appears simply to be a placeholder for the Court to apply common-law exegisis.

[C] – AEDPA

In 1996, the Republican Congress and a triangulating Bill Clinton worked together to pass AEDPA. Fundamentally, AEDPA overrules Brown and says Teague didn’t go far enough. AEDPA only allows relief when clearly established federal law, as decided by the Supreme Court, in existence at the time of the state proceedings, requires relief.

The Supreme Court doesn’t seem at all worried that AEDPA might be unconstitutional. But Professor Manning isn’t so sure. He finds a lot to agree with in Judge Ripple’s dissent in Lindh v. Murphy.120

Judge Ripple’s argument is this: because of AEDPA, a “lower federal court must accept as the federal rule of decision the state court’s view as preferable to its own. . . . [T]he statute, as amended, deprives a federal court of the right to adjudicate the case. And a court that does not adjudicate advises: a role decidedly different than the one the Constitution envisions for courts and judges of the Third Article.”121 Fundamentally, Judge Ripple viewed AEDPA as running afoul of Klein122 and Hayburn’s case.123

Compare two hypothetical statutes. The first says, “Federal courts shall have no authority to hear substantive due process claims.” This probably violates Klein because it tinkers with the rule of decision. Now imagine Congress passes a statute that says, “Federal courts may not grant injunctive relief in abortion cases except as based upon clearly established Supreme Court precedent.” This statute doesn’t seem so different as not to fall within the Klein rule, but it’s pretty similar to AEDPA.

The deep disagreement may be about the nature of habeas. If habeas is a necessary corollary to the due process clause, AEDPA appears to be interfering with a rule of decision. If habeas is merely a remedy like any other, Congress has the authority to fiddle with jurisdiction.

120 96 F.3d 856 (7th Cir. 1996), aff’d 521 U.S. 320 (1997).121 Lindh, 96 F.3d at 890 (Ripple, J., dissenting).122 See generally Section 3.02[A][5], above.123 See generally Section 2.01[C], above.

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Chapter 5 – State Sovereign Immunity

Sovereign immunity doctrine is what you get when you make a big, unsteady stack of nonsense, then try to shore it up by stacking on more nonsense.

Although the issue of state sovereignty was a point of heated debate among the framers, the Constitution did not resolve the question. The opponents of the Constitution concerned about states’ rights insisted that the question should be handled explicitly. The Federalists more or less said, “trust us, it’s there.”

Sovereign immunity existed in British common law. The reasons were both practical and philosophical. On the first head, there was nobody more powerful than the crown to adjudicate claims against the crown. On the second, there was an idea like the divine right of the king, etc.

But it’s debatable whether these reasons make any sense in a federal republic. We surely don’t consider the states infallible, and the federal courts are available to adjudicate claims against states.

§ 5.01 – The Courts, Acting Alone

[A] – Chisholm and the Eleventh Amendment

Chisholm v. Georgia124 interpreted the Constitution pretty sensibly. Several opinions noted that there was no textual basis for sovereign immunity. Justice Iredell dissented, but would have applied sovereign immunity based upon the common law, not the Constitution.

But Chisholm caused a SHOCK OF SURPRISE!!! This precipitated the Eleventh Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The case law was unremarkable until after the Civil War. Then, states started to repudiate their debts and citizens of those states started suing.

[B] – Hans

In Hans v. Louisiana, the Court interpreted the Eleventh Amendment to provide sovereign immunity, even in suits by citizens suing their own state. Fundamentally, the Hans Court interpreted the Eleventh Amendment as shorthand for overruling Chisholm and installing the polar rather than logical opposite.

What’s surprising about this result is how carefully crafted the Eleventh Amendment seems to be—“surgical” according to Professor Manning. Compare the text of the Eleventh Amendment with that of Article III, Section 2, Clause 1: “The judicial Power shall extend to . . . Controversies . . . between a State and Citizens of another State; . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” (Emphasis added.) It seems the text swoops in to cut out a few chunks of Article III, but leaves everything else intact, including federal-question jurisdiction.

After Hans, the governing rule is “the plan of the convention,” not the text of the Eleventh Amendment. And the results have been all over the place.125

[C] – Suing a State Officer: Ex parte Young

The Court in Ex parte Young126 refused to dismiss an injunctive suit against a state officer on sovereign immunity grounds. The case involved a statute that applied draconian penalties for railroads that violated price controls. Sovereign immunity prevented any means of challenging the statute except violating it and raising its unconstitutionality as a defense. But the penalties were so harsh that this was infeasible. So instead the railroad’s shareholders brought a derivative suit to enjoin the state attorney general from enforcing the statute.

124 2 U.S. (2 Dall.) 419 (1793), discussed in Fallon, et al., supra note 1, at 870.125 See Fallon, et al., supra note 1, at 882 (summarizing cases).126 209 U.S. 123 (1908), as reprinted in Fallon, et al., supra note 1, at 886.

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The Court employed the legal fiction that a state officer is behaving on his own rather than as a representative of the state. The Court suggested that a person acting unconstitutionally could not be acting pursuant to state authority.127

But in order to win an Ex parte Young action you have to apply for prospective relief, not remedial relief. Of course, it’s pretty hard to define what this means, exactly.128

So now you can win an Ex parte Young action under the following circumstances: you—

sue an officer; by name; for violating federal law; and seek prospective relief.

Note too that there is no Ex parte Young action available when Congress has set up a remedial scheme, even if that scheme is later struck. This is an implication of Seminole Tribe of Florida v. Florida,129 discussed in the next section.

§ 5.02 – Abrogation

Sovereign immunity doctrine takes on an added wrinkle when Congress purports to give the Court authority to bind the states. Think Justice Jackson’s Youngstown zones of power, except involving federalism (rather than separation of powers) and Congress trying to give the Court a boost (rather than the President).

There was a flourishing of abrogation in Parden v. Terminal Railway130 and Pennsylvania v. Union Gas.131 But then the Court overruled Union Gas in Seminole Tribe, and later overruled Parden under the authority of Seminole Tribe.132

Seminole Tribe holds that Congress doesn’t have the power under Article I to abrogate state sovereign immunity; Congress can only do this under the enforcement clause of the Fourteenth Amendment.133 There is also no Ex parte Young action available in this situation.

The reason for this is that Congress cannot heap power onto the courts beyond what is permitted under Article III. Note that this reads sovereign immunity as being a limit created by Article III. But note that states can waive sovereign immunity; if this power were truly forbidden to the courts it seems that this should be impossible (like waiving subject-matter jurisdiction).

Justice Souter argued in his dissent that sovereign immunity is simply a common-law limit on judicial power, so Congress can override the courts’ self-abnegation.

Finally, City of Boerne v. Flores134 applies an additional limit to abrogation. Congress can only abrogate state sovereign immunity under the enforcement clause of the Fourteenth Amendment if Congress meets that case’s congruence-and-proportionality test, and in accordance with its requirement for support from the congressional record.

127 But cf. Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 (1913) (holding that a state official who acts unlawfully is acting in his official capacity in the sense that the act-of-state doctrine applies to allow the enforcement clause of the Fourteenth Amendment to apply), as reprinted in Fallon, et al., supra note 1, at 943.128 See generally Fallon, et al., supra note 1, at 896 n.14. See Edelman v. Jordan, 415 U.S. 651 (1974) (payments withheld unlawfully by a state officer under a federal program could not be ordered paid, but an injunction could be entered to require payment in the future), discussed in Fallon, et al., supra note 1, at 892–93; Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977) (upholding injunctions requiring state officials to carry out actions in the future to redress past civil rights violations), discussed in Fallon, et al., supra note 1, at 895–96. Cf. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997) (Part of Justice Kennedy’s opinion not joined by the majority argues for adoption of an interest-weighing test in this area).129 517 U.S. 44 (1996), as reprinted in Fallon, et al., supra note 1, at 902.130 377 U.S. 184 (1964), discussed in Fallon, et al., supra note 1, at 900.131 491 U.S. 1 (1989), discussed in Fallon, et al., supra note 1, at 901.132 Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680 (1999) (Whatever may remain of our decision in Parden is expressly overruled.).133 U.S. Const. amend. XIV, § 5.134 521 U.S. 507 (1997), discussed in Fallon, et al., supra note 1, at 920.

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§ 5.03 – Alden v. Maine

Alden v. Maine135 holds that Congress can’t use its Article I authority to abrogate state sovereign immunity and require states to submit to suit in state court. This seems in tension with Crain.

Because this is a Justice Kennedy opinion, it does an impeccable job of rationalizing a previously incoherent doctrine, causing the previous, seemingly disparate cases to fall into place like some kind of magic self-assembling jigsaw puzzle. No, not really.

Rather, Kennedy argues that sovereign immunity doesn’t really come from the Eleventh Amendment, but instead is immanent from the Constitution, our form of government, and poetical personifications of various abstractions.

The Court distinguished Reich, claiming that it holds only that if states allow a postdeprivation remedy for wrongly collected taxes, then it cannot withdraw that remedy after someone pays in reliance upon it. This seems to make a hash out of the case’s Ward-like reasoning, which requires a remedy for certain due process violations.

Professor Manning called Alden a mischievous case, inconsistent with its precedent, broad and vague, and admitting of too much judicial discretion.

§ 5.04 – Summary of the Theories

Drawing the threads together, there are four ways of thinking about the Eleventh Amendment.

Jurisdictional Theory. The Eleventh Amendment simply withdraws some jurisdiction under Article III. This theory implies that Hans was wrongly decided.

o Diversity Only. Justice Brennan argued that the Eleventh Amendment only withdrew diversity jurisdiction from the federal courts in cases between an individual and a state. This is somewhat atextual, but seems more plausible than Hans.

o Literal Theory. The Eleventh Amendment withdraws all federal jurisdiction, including federal question jurisdiction, between a foreign citizen and a state. This leads to some anomalies. It doesn’t explain waiver. And it’s inconsistent with the politics in 1795.

Article-III Theory. The Eleventh Amendment overrules Chisholm and restores the inherent Article III limitations. This is the holding of Hans. This tracks history—it’s consistent with what Madison thought, etc. It deals with the word “construed” in the Eleventh Amendment. But it’s atextual and it ignores what Chisholm actually held. It allows some waiver and abrogation.

Article-I Theory. This is what’s at play in Alden. Sovereign immunity is immanent from the structure of the Constitution. This theory takes state sovereignty seriously. This is plausible enough—it is consistent with the idea of the states entering the union. It explains the structure of Article I, Section 10, which limits some preexisting incidents of state sovereignty, but doesn’t say anything about sovereign immunity being limited. But this ignores the uniqueness of our structure of government, and it’s inconsistent with Reich, Crain, and Ward because it doesn’t provide a remedy for due process violations.

Common-Law Theory. This is the theory of Justices Iredell and Souter. It limits the availability of suit only if Congress doesn’t step in. Sovereign immunity may exist for diversity and federal question jurisdiction. This is fairly coherent historically and it respects Congress and the supremacy clause. But it’s ahistorical in that it ignores a ton of precedent.

The Court presently seems to be bouncing between the middle two theories.

135 527 U.S. 706 (1999), discussed in Fallon, et al., supra note 1, at 928.

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Chapter 6 – Federal Common Law

What authority do federal courts have to make law? Does it derive from “The judicial Power”?136 Other constitutional language? Statutes? Is federal common law always distinguishable from statutory interpretation?

The biggest problem with having moved away from general federal common law is one of translation. The Constitution and various old doctrines and statutes presumed that federal courts had this authority. So, now what?

§ 6.01 – Criminal Federal Common Law: Hudson & Goodwin

In United States v. Hudson & Goodwin,137 the Supreme Court held that federal courts lack power to render a criminal conviction unless Congress defines the substantive offense and gives the courts jurisdiction. The Court distinguishes the sorts of offenses that courts must recognize simply to function—contempt, for example—from substantive criminal offenses.

Hudson & Goodwin broke from lower-court and British precedent.

Professor Manning explains that this was quite a path-dependent decision. The backdrop was a complicated fight between the Federalists and Republicans involving seditious libel claims.138

Madison made a series of separation-of-powers and federalism arguments against federal common law crimes: the legislature can’t change them; the Court is simply legislating; and by recognizing new common-law crimes, the Court can help Congress bypass its enumerated powers because Congress can act simply to codify the Court’s newly recognized crimes.

In United States v. Coolidge,139 the Court appeared ready to reconsider Hudson & Goodwin, but there was no one to argue the case, so Hudson & Goodwin has remained good law through to the present.

§ 6.02 – Swift through Erie

Before Swift v. Tyson,140 the Court wobbled back and forth between saying there was or wasn’t general federal common law.141 Swift recognized general federal common law. But the federal courts abused their authority, moving beyond bounds that used to tether general common law, and barged into doctrines like tort, property, and contract law. That’s what allowed absurd results like Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.142

In 1938, the Court decided Erie Railroad Co. v. Tompkins, which held that “[t]here is no federal general common law”143 and overruled Swift.

Though the Court paused to consider Professor Warren’s article about the history of the Judiciary Act of 1789, and the practical problem of forum shopping, the constitutional holding concerned federalism. The Court reasoned that lawmaking must follow the finely wrought procedure for legislating, plus the Senate’s involvement helps protect states (each state gets two senators; this was an even more important check pre-Seventeenth Amendment). To allow the Court to bypass this and make binding federal law would violate the Tenth Amendment.

136 U.S. Const. art. III, § 1.137 11 U.S. (7 Cranch) 32 (1812), as reprinted in Fallon, et al., supra note 1, at 608.138 See generally Fallon, et al., supra note 1, at 610–12.139 14 U.S. (1 Wheat.) 415 (1816), discussed in Fallon, et al., supra note 1, at 612.140 41 U.S. (16 Pet.) 1 (1842), as reprinted in Fallon, et al., supra note 1, at 550. 141 See generally Fallon, et al., supra note 1, at 553–54.142 276 U.S. 518 (1928).143 304 U.S. 64 (1938), as reprinted in Fallon, et al., supra note 1, at 558.

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§ 6.03 – Federal Proprietary Interests: Clearfield Trust and the “New” Federal Common Law

[A] – Clearfield Trust

Like Swift, Clearfield Trust Co. v. United States,144 was a federal case that applied the law merchant. But it was five years post-Erie. Unlike Swift, Clearfield Trust involved a gap in an area occupied by federal statutory law. And unlike Swift, a state court would be bound to apply federal common law in similar cases because the Supreme Court no longer suggests that it is expounding general common law. Note that is rather corrosive of federalism—more so than had the Court applied general federal common law to the facts of Erie.

The Court and most academics suggest Clearfield Trust involves a circumscribed power to fill in statutory gaps, although Professor Weinberg thinks there is federal common law power wherever there are powerful federal interests.

[B] – Theory

It’s hard to see just where the authority comes from. If it’s inherent in Article III, why not in Hudson & Goodwin? Is there a special limit for criminal cases?

It’s hard to say the supremacy clause allows it. That’s because common-law rules are “found,” not “made,” but the Constitution says, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.”

Congress passes laws against the background methods of judicial interpretation,145 but after Erie, Congress can no longer expect the Court to fill things in based upon general-common-law authority. So this isn’t clearly the basis of Clearfield Trust, either.

No, what it really seems to come down to is the purposive, legal-process-y view: Congress is reasonable people pursuing reasonable ends reasonably. This is similar to Justice Jackson’s concurrence in D’Oench, Duhme & Co. v. Federal Deposit Insurance Corp.146

Is this a good framework? The arguments here are pretty much the same ones for and against purposivism and textualism.

[C] – The Current Approach: Kimbell Foods

The Court in United States v. Kimbell Foods, Inc.147 said that there is a presumption in favor of state law, but that courts must consider the importance of uniformity. Professor Manning says the competence and discretion test is pretty similar to preemption doctrine.

§ 6.04 – Enclaves of Federal Common Law

[A] – Admiralty & Maritime Law: Chelentis

In Chelentis v. Luckenbach Steamship Co.,148 the Supreme Court held that federal common law is supreme in the area of admiralty and maritime law. Part of the controversy is the saving-to-suitors clause,149 which allows concurrent state jurisdiction for some maritime claims, involving complications to do with suits brought in rem or in personam. The issue is probably one of translation from a pre- to a post-Erie world—concurrent jurisdiction to expound general common law wouldn’t present a conflict.

Fundamentally, the Court seems to consider uniformity important here. The Court has come up with a bewildering array of tests,150 all of which aim at weighing the uniformity interest and all of which seem pretty ad hoc.144 318 U.S. 363 (1943), as reprinted in Fallon, et al., supra note 1, at 614.145 Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).146 315 U.S. 447 (1942), discussed in Fallon, et al., supra note 1, at 621.147 440 U.S. 715 (1979), discussed in Fallon, et al., supra note 1, at 628.148 247 US 372 (1918), as reprinted in Fallon, et al., supra note 1, at 651. 149 See Fallon, et al., supra note 1, at 656. 150 See id. at 656–57.

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Query whether the Court’s approach simply pushed the more institutionally competent Congress out of the way. And note that the Court has made some odd decisions that are pretty expansive, like holding that the Death on the High Seas Act implies a congressional policy to provide relief for death not on the high seas (i.e., in coastal waters).151

Admiralty / maritime jurisprudence, with its uniformity test, is somewhat similar to the dormant commerce clause.

[B] – State–state Disputes: Hinderlider

The Court handed down Hinderlider v. La Plata River & Cherry Creek Ditch Co.152 on the same day as Erie. It said that federal common law governs state–state disputes. The rule of decision comes from “Federal law, state law, and international law, as the exigencies of the particular case may demand.”153

Again, this demonstrates that what Erie forbade was general federal common law, not all federal common law.

[C] – Authority Inferred From a Pure Jurisdictional Grant: Lincoln Mills

Textile Workers Union of America v. Lincoln Mills of Alabama154 seems to be something of an outlier. The Court in that case applied federal common law, based upon what it inferred about congressional policy, pursuant only to a statute that gave it jurisdiction. The Court was pretty bold to believe it has received a hint from Congress here, and thus to preempt state law.

§ 6.05 – International Law

[A] – Sabbatino

The Court clarified the act-of-state doctrine in Banco Nacional De Cuba v. Sabbatino.155 The Court held that the doctrine is a federal-common-law rule that preempts state courts and restrains federal courts from acting in sensitive situations involving foreign relations.

The Sabbatino Court observed that the act-of-state doctrine is not constitutionally required, but instead represents interbranch comity and federalism. Courts have the authority to do this under federal common law even after Erie because the Erie Court didn’t intend to overturn rules related to international law.

Once again, uniformity is the watchword. But the Court has stepped back from Sabbatino in its strongest form.156 Now the doctrine is more like conflict preemption. The Court tends to wait for a signal from the political branches.

[B] – Customary International Law

Briefly, Customary International Law (CIL) has a modern position and a revisionist position. The modernist position has it that CIL enters the U.S. as federal common law. Like the old general common law, it is found, not made. And there are serious concerns about uniformity if each state can make federal common law.

The revisionists, notably Professors Bradley and Goldsmith, think that Erie killed this branch of law. Even finding legal principles violates Erie, which was about the need for law to trace to a sovereign. It kills accountability and sovereignty, and becomes even more vexing as principles of CIL purport to limit countries’ internal law.

151 See Moragne v. Star Marine Lines, Inc., 398 U.S. 375 (1970), discussed in Fallon, et al., supra note 1, at 657.152 304 U.S. 92 (1938), .153 Kansas v. Colorado, 206 U.S. 46, 97 (1907), discussed in Fallon, et al., supra note 1, at 660.154 353 U.S. 448 (1957), discussed in Fallon, et al., supra note 1, at 663.155 376 U.S. 398 (1964), as reprinted in Fallon, et al., supra note 1, at 665. 156 See, e.g., Zschernig v. Miller, 389 U.S. 429 (1968) (holding, more or less, that Oregon can’t have its own foreign policy; considered the high-water mark of the Sabbatino cases), discussed in Fallon, et al., supra note 1, at 671; Barclay’s Bank, PLC v. Franchise Tax Bd., 512 U.S. 298 (1994) (act-of-state doctrine not applicable when foreign governments complained about California’s method of taxation because the case did not call on a court to evaluate the behavior of a foreign government), discussed in Fallon, et al., supra note 1, at 672; W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400 (1990) (act-of-state doctrine not applicable to a case that incidentally required a court to determine that a foreign government had taken bribes), discussed in Fallon, et al., supra note 1, at 672; Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) (holding that a Massachusetts statute was simply preempted by federal law and declining to analyze under the act-of-state doctrine), discussed in Fallon, et al., supra note 1, at 672.

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Both sides claim victory in Sosa v. Alvarez-Machain.157 Sosa does help the modernists in that it recognizes that CIL does exist, but helps the revisionists by limiting it.

§ 6.06 – Implied Rights of Action: Bivens

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics158 recognized an implied federal right of action. The Court held that the violation by federal officers of the petitioner’s Fourth Amendment rights constituted a cause of action, and that federal courts of competent jurisdiction could provide any necessary remedy within their power for such violations. The general rule had two exceptions: no Bivens action would lie where (1) special factors counseled hesitation, or (2) Congress had enacted an equally effective substitute remedy.

Bivens’s only conceivable remedy was damages: the exclusionary rule wasn’t relevant in his case, and he lacked standing to have future Fourth Amendment violations enjoined. Bivens reflected a new need: the Warren Court had expanded rights, but many of these rights lacked remedies. And the Court seemed to think it was exercising a shared power with Congress, which existed until Congress put the kibosh on it.

The case seems consistent with cases like Ex parte Young, Ward, and Youngstown; and like Marbury, it suggests that rights require remedies.

But Bivens is now moribund. Although the Court expanded the doctrine in Davis v. Passman159 and Carlson v. Green,160 it has not been applied since 1980. Instead, the Court seems to consider any remedy sufficient. It’s not clear whether Bivens applies beyond its own facts and those of Davis (concering the Fifth Amendment) and Carlson (concerning the Federal Tort Claims Act).

The cases decided during Bivens 0-for-7 performance since 1980 are summarized in the casebook.161

157 542 U.S. 692 (2004), discussed in Fallon, et al., supra note 1, at 680.158 403 U.S. 388 (1971), discussed in Fallon, et al., supra note 1, at 726.159 442 U.S. 228 (1979), discussed in Fallon, et al., supra note 1, at 734.160 446 U.S. 14 (1980), discussed in Fallon, et al., supra note 1, at 735.161 Fallon, et al., supra note 1, at 736–40.

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