Article 3, Section 2, Clause 1 — Substantive Claims And Defenses In Federal Question Cases

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;— to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Federal question jurisdiction is the basis for many of the Supreme Court’s high-profile cases. In particular, federal question cases may involve claims of an actual or threatened invasion of the plaintiff’s constitutional rights by some act of public authority. The “arising under” clause thus provides the main textual basis for the implied power for federal courts to review the constitutionality of legislation and other government actions.[1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn1art3 " While federal question jurisdiction is often the basis for constitutional claims brought in federal court, cases arising under the Constitution or federal law are just one of several categories of cases that the Constitution authorizes the federal courts to hear. See also, e.g., to ; to ; ; to ; ; ; ; to . ")

There are multiple types of legal claims that may give rise to federal question jurisdiction.[2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn2art3 " This essay focuses on substantive legal issues that may give rise to federal question jurisdiction. For discussion of the constitutional text and procedural statutes that authorize the federal courts to hear federal question cases, see . ") Congress often creates federal question jurisdiction by enacting legislation creating substantive legal rights or obligations and explicitly granting the courts jurisdiction to enforce them.[3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn3art3 " Congress also sometimes enacts federal statutes that create new legal duties but do not explicitly allow individuals to sue to enforce the law. While the Supreme Court has in the past recognized “implied” rights of action in limited circumstances, more recent case law has instructed courts to “interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). ") Sometimes this jurisdiction is exclusive. For instance, the federal courts have exclusive jurisdiction over federal criminal cases and cases arising under bankruptcy, antitrust, or copyright law.[4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn4art3 " See 18 U.S.C. § 3231 (federal criminal proceedings); 28 U.S.C. § 1334 (bankruptcy cases); id. § 1337 (antitrust cases); id. § 1337 (patent and copyright cases). ") In other areas, Congress allows both state and federal courts to hear cases based on federal statutes.[5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn5art3 " State courts presumptively enjoy concurrent jurisdiction to enforce federal law, and Congress must explicitly or implicitly confine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–84 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). ") For example, 28 U.S.C. § 1343 grants the federal courts jurisdiction over civil rights claims arising under the Constitution or federal law, including claims under 42 U.S.C. § 1983,[6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn6art3 " Section 1983 authorizes private civil suits for the “deprivation of any rights, privileges, or immunities secured by the Constitution” and federal laws. In these suits, Section 1983 provides the substantive cause of action and Section 1343 grants the federal courts jurisdiction. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954); Baker v. Carr, 369 U.S. 186 (1962). ") but state courts may also hear such claims.[7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn7art3 " See, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980). ")

Federal question cases may also arise under treaties to which the United States is a party. The Supreme Court has held that some treaties are “self-executing” and thus “directly enforceable as domestic law in our courts,” while others are not.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn8art3 " Medellin v. Texas, 552 U.S. 491, 519 (2008). ") If a treaty is not self-executing, Congress must enact legislation to implement the treaty before it can be enforced in U.S. court.[9](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn9art3 " Id. at 505. ")

In addition, the constitutional judicial power of federal courts extends to cases arising under judge-made legal doctrines. One example of this is cases involving federal common law. “Common law” refers to legal rules drawn from judicial decisions, rather than a statute or constitution.[10](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn10art3 " Common Law, Black’s Law Dictionary (11th ed. 2019). ") Although the Supreme Court famously announced in Erie Railroad v. Tompkins that “[t]here is no federal general common law,” [11](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn11art3 " 304 U.S. 64, 78 (1938). Under the Rules of Decision Act, there is a presumption against the creation of federal common law, and federal courts apply state common law when possible. 28 U.S.C. § 1652; see also Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640–41 (1981) ( “The vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law.” ). ") it is well settled that there are some areas where courts apply federal common law, and the Supreme Court has held that the federal courts have the power to hear federal common law claims.[12](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn12art3 " Tex. Indus., 451 U.S. at 640. ") Federal courts primarily create and apply federal common law in two circumstances: where a federal rule of decision is necessary to protect uniquely federal interests, or where Congress has given the courts the power to develop substantive law.[13](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn13art3 " Id. In determining whether to create federal common law, the Court’s inquiry focuses on whether a judge-made rule would effectuate the intent of Congress. See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979). Congress can enact legislation to displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 (1981). ")

A related example of judge-made law that raises constitutional issues subject to federal question jurisdiction is the doctrine articulated in Bivens v. Six Unknown Named Agents.[14](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn14art3 " 403 U.S. 388 (1971). Some have likened the holding in Bivens to the creation of federal common law. See, e.g., Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (discussing the petitioners’ arguments “[a]nalogizing Bivens to the work of a common-law court” ); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) (stating that “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action” ). Justice John Harlan’s concurrence in Bivens suggested that liability in that case was not based on common law. 403 U.S. at 403 (Harlan, J., concurring) ( “I do not think that the fact that the interest is protected by the Constitution rather than statute or common law justifies the assertion that federal courts are powerless to grant damages in the absence of explicit congressional action authorizing the remedy.” ). ") Bivens and its progeny allowed individuals to sue federal agents directly under the Constitution without a federal statute authorizing relief.[15](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn15art3 " See also Davis v. Passman, 442 U.S. 228 (1979), Carlson v. Green, 446 U.S. 14 (1980). ") More recent Supreme Court cases have construed Bivens narrowly.[16](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn16art3 " See, e.g., Egbert v. Boule, No. 21-147 (U.S. June 8, 2022). ")

Other times, federal question jurisdiction exists even though the case, as originally filed, includes only state law civil claims or criminal charges. For instance, a state law civil claim may be filed in federal court, or removed from state to federal court before trial, if a “right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.” [17](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn17art3 " Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 13 (1983). See also ; . ") In other cases, litigation based on state law questions may proceed through the state courts before receiving federal court review. This often occurs in cases where a civil or criminal defendant invokes the Constitution or a federal statute as a defense to liability. Under the general federal question statute, the federal district courts do not have statutory jurisdiction to hear those cases in the first instance.[18](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/substantive-claims-and-defenses-in-federal-question-cases#fn18art3 " 28 U.S.C § 1331; see also Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908). ") However, they fall within the constitutional bounds of federal question jurisdiction,[19