Article 3, Section 2, Clause 1 — The Last Resort Rule

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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.

Under the Last Resort Rule, a court should “not pass upon a constitutional question . . . if there is also present some other ground upon which the case may be disposed.” [1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn1art3 " Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). See also Eustis v. Bolles, 150 U.S. 361, 366 (1893) ( “[W]here the record discloses that if a question has been raised and decided adversely to a party claiming the benefit of a provision of the constitution or laws of the United States, another question, not federal has been also raised and decided against such party, and the decision of the latter question is sufficient, notwithstanding the federal question, to sustain the judgment, this court will not review the judgment.” ). ") Accordingly, if a court can resolve a case on both constitutional and non-constitutional grounds, the court should do so on non-constitutional grounds.[2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn2art3 " Berea Coll. v. Kentucky, 211 U.S. 45, 53 (1908) ( “[W]hen a state court decides a case upon two grounds, one Federal and the other non-Federal, this court will not disturb the judgment if the non-Federal ground, fairly construed, sustains the decision.” ); Allen v. Arguimbau, 198 U.S. 149, 154–55 (1905) ( “[I]f the judgment rested on two grounds, one involving a Federal question and the other not, or if it does not appear on which of two grounds the judgment was based, and the ground independent of a Federal question is sufficient in itself to sustain it, this court will not take jurisdiction.” ); Murdock v. Memphis, 87 U.S. 590, 636 (1874) ( “If [the judgment] was erroneously decided against plaintiff in error, then this court must further inquire, whether there is any other matter or issue adjudged by the State court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the Federal question. If this is found to be the case, the judgment must be affirmed without inquiring into the soundness of the decision on such other matter or issue.” ); see also DeVillier v. Texas, No. 22-913, slip op. at 6 (U.S. Apr. 16, 2024) ( “Our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause. But, this case does not require us to resolve that question. The question presented asks what would happen if a property owner had no cause of action to vindicate his rights under the Takings Clause. It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action.” ). ") By doing so, the court avoids creating constitutional precedent unnecessarily, while giving the political process time to resolve contentious constitutional issues. Because the Last Resort Rule informs the order in which the Court should address constitutional and non-constitutional questions in a case, it is sometimes described as a “rule of judicial procedure.” [3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn3art3 " Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 251 (2012). ")

An example of the Court’s use of the Last Resort Rule is its decision in Bond v. United States.[4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn4art3 " Bond v. United States, 572 U.S. 844 (2014). ") In Bond, federal prosecutors charged Carol Bond with violating Section 229 of the Chemical Weapons Convention Implementation Act (CWCIA) when she caused “a minor thumb burn readily treated by rinsing with water” to her husband’s lover by applying toxic chemicals to the paramour’s car, mailbox, and door knob.[5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn5art3 " Id. at 852. ") Bond argued that Section 229 (1) “exceeded Congress’s enumerated powers and invaded powers reserved to the States by the Tenth Amendment ” [6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn6art3 " Id. at 853. Discussing Bond’s constitutional claim, the Court noted that, under the Constitution, the states retained “broad authority to enact legislation for the public good-what we have often called a ‘police power.’” Id. at 854 (citing United States v. Lopez, 514 U.S. 549, 567 (1995)). As a consequence, the Court explained, “[a] criminal act committed wholly within a State ‘cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiciton of the United States.’” Id. (quoting United States v. Fox, 95 U.S. 670, 672 (1878)). ") and (2) did not apply to her because “her conduct, though reprehensible, was not at all ‘warlike.’” [7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn7art3 " Id. at 853. ") Faced with resolving Bond on either statutory or constitutional grounds, the Court, relying on the Last Resort Rule, considered first whether it could resolve the case based on Bond’s argument that Section 229 did not apply to her actions.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn8art3 " Id. at 855. ") After analyzing the CWCIA, the Court concluded that Congress did not intend for Section 229 to apply to Bond’s circumstance.[9](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn9art3 " Id. at 866 ( “[I]f section 229 reached Bond’s conduct, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Absent a clear statement of that purpose, we will not presume Congress to have authoried such a stark intrusion into traditional state authority.” ). ")

Based on the Last Resort Rule, the Supreme Court has remanded cases involving constitutional questions to lower courts to see if the case can be resolved on statutory grounds. For example, in Escambia County v. McMillan, the Supreme Court remanded a case affirmed by the appellate court on constitutional grounds because the district court also found a statutory violation.[10](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn10art3 " Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984). ") The Supreme Court instructed the appellate court to determine if it could affirm the district court’s decision based on the statutory rather than the constitutional ruling.[11](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn11art3 " Id. ") In other cases, the Court has avoided ruling on a constitutional question by deciding a case based on statutory reasons not considered by the lower court.[12](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn12art3 " Siler v. Louisville & Nashville R.R., 213 U.S. 175, 191 (1909) ( “This court . . . can, if it deem it proper, decide the local questions only, and omit to decide the federal questions.” ). See also Jean v. Nelson, 472 U.S. 846 (1985); United States v. Locke, 471 U.S. 84 (1985); Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). But see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (holding Eleventh Amendment bars federal courts from hearing state law cases when the state is the defendant). ") For instance, the Court resolved Siler v. Louisville & Nashville Railroad by ruling that the Railroad Commission violated a Kentucky statute—an issue the Kentucky state court had not considered.[13](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn13art3 " Siler, 213 U.S. at 194 ") By reaching this conclusion, the Court avoided addressing Siler's constitutional questions.[14](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn14art3 " Id. at 193. ")

Siler concerned questions of federal and state law. While the Supreme Court interpreted the Kentucky statute in Siler, the Court often remands cases involving constitutional and state law issues to state courts so they can first resolve state law questions. Consistent with this approach, the Supreme Court has dismissed state court appeals based on constitutional questions if state law can sustain the judgment.[15](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn15art3 " Berea Coll. v. Kentucky, 211 U.S. 45, 53 (1908) ( “[W]hen a state court decides a case upon two grounds, one Federal and the other non-Federal, this court will not disturb the judgment if the non-Federal ground, fairly construed, sustains the decision.” (citations omitted)). See also Allen v. Arguimbau, 198 U. S. 149, 154–55 (1905). ") Besides avoiding constitutional questions, remanding state law questions to state courts has other advantages: First, the Court avoids using its resources to decide questions where its decisions would be advisory.[16](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn16art3 " Michigan v. Long, 463 U.S. 1032, 1040–41 (1983) ( “Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court’s refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions.” ). See also Erie R.R. v. Tompkins, 304 U.S. 64, 79 (1938) ( “[Federal] [s]upervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the state, and, to that extent, a denial of its independence.” ). ") Second, the Court acknowledges state expertise and autonomy to interpret state laws.[17](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-last-resort-rule#fn17art3 "<span class="fn_ref" id="_ALDF_00019871" /