ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial of the Case Against Arizona & Governor Brewer.
By Publius Huldah.
1. Does anyone read the U.S. Constitution these days? American lawyers don’t read it. It is certain that only a few in Congress have even heard of it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.
Article III, Sec. 2, clause 2 says:
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… [emphasis added]
“Original” jurisdiction means the power to conduct the “trial” of the case (as opposed to hearing an appeal from the judgment of a lower court). You all know quite well what a “trial” is – you see them all the time on TV shows: Perry Mason, Boston Legal, The Good Wife, etc. Witnesses testify and are cross-examined, etc.
The style of the Arizona case shows quite clearly that the named defendants are:
State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants.
See where it says, “State of Arizona”? THAT (plus Art. III, Sec. 2, clause 2) is what requires the US Supreme Court to conduct the trial of this case. THAT is what strips the federal district court of any jurisdiction whatsoever to hear this case. Judge Susan R. Bolton has no more authority to preside over this case than do you (unless you are a US Supreme Court justice).
In Federalist No. 81 (13th para), Alexander Hamilton commented on this exact provision of Art. III, Sec. 2, clause 2:
…Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal…[boldface added, caps in original]
Yet Attorney General Eric Holder filed the case in a court which is specifically stripped, by the Constitution, of jurisdiction to hear it.
2. So! Counsel for the State of Arizona should consider:
(a) File a Petition for Removal before federal district court Judge Susan R. Bolton demanding that the case be removed to the Supreme Court on the ground that under Art. III, Sec. 2, clause 2, US Constitution, only the Supreme Court has jurisdiction to conduct the trial of this case.
(b) If Judge Bolton denies the Petition for Removal, file a Petition for Writ of Mandamus in the Supreme Court asking that court to order Judge Bolton to transfer the case to the Supreme Court.
A Petition for Writ of Mandamus is an old common-law “extraordinary writ”: It asks a court to ORDER a lower court or other public official to something which it is its duty to do. In Kerr v. US District Court for Northern District of California (1976), the Supreme Court said, respecting the propriety of issuing writs of mandamus:
….the fact still remains that ‘only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.’ …(para 13)
When a federal district court judge presides over a case which the Constitution specifically prohibits her from hearing, and even issues a ruling enjoining the enforcement of a State Law, then that federal district court judge usurps power. She is specifically stripped – by Art. III, Sec. 2, clause 2 – of jurisdiction to preside over the case against the STATE of Arizona.
For procedures for filing the Petition for Writ of Mandamus, see Supreme Court Rule 20.
3. Now, let us examine a hurdle before us: For a very long time, as PH continually points out, Congress and the federal courts have ignored the Constitution. Congress has made innumerable laws which exceed the scope of the legislative powers delegated to it, and the supreme Court has applauded such usurpations!
But respecting the judicial power of the federal courts, Congress has made a law which directly contradicts Art. III, Sec. 2, clause 2 of Our Constitution! That pretended law is 28 USC § 1251:
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens. [emphasis added].
Do you see what this pretended “law” purports to do? It purports to say that lawsuits filed by the United States government against States can be tried in federal district courts!
But Article III, Sec. 2, clause 2 says that in “ALL” [federal] Cases in which a State shall be Party, the supreme Court “SHALL” have original jurisdiction (i.e., the supreme Court is to conduct the trial). In Our Constitution, We delegated to the supreme Court alone the authority to conduct the trials of such cases in which States are a party. We most manifestly did NOT grant that power to inferior tribunals. And Congress may not alter, by any pretended “law”, Our grant of power which was to the supreme Court alone.
The Federalist Papers were written to explain the proposed Constitution to the People and to induce them to ratify it. For this reason, the Federalist is the most authoritative commentary we have on the original intent of the Constitution. The States understood, before their delegations ratified the Constitution, that if they were ever sued by the new federal government, their case would be tried before the supreme Court! As noted above, Hamilton said, respecting suits against States:
…In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal…
Congress may not unilaterally change the rules after the fact!
Article V sets forth the procedures for amending the Constitution. Note that the 11th Amendment (ratified 1795) was ratified to reduce the Art. III, Sec. 2, clause 1, Jurisdiction of the federal courts. If it is desired to extend to federal district courts the judicial Power to preside over [federal] cases in which a State is a party, then it can only be done by constitutional amendment.
In Federalist No. 78 (10 para), Alexander Hamilton says:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis added]
Congress may not amend Our Constitution by making a “law”. Any such pretended “law” is void.
4. Article IV, Sec. 4, requires the federal government to protect each of the States against invasion! Not only is the Obama regime refusing to perform this specific Constitutional duty – it seeks to prohibit the Sovereign STATE of Arizona from defending herself! PH.
July 31, 2010
Post Script:
I don’t cite SCOTUS opinions as authority, because they have become nothing more than judges’ personal opinions on the cases before them. We have well over 100 years accumulation of such opinionated precedent! And, as when making photocopies of copies, after a while the original meaning is lost altogether.
Because of the firestorm over this paper, I now break my own rule and cite a SCOTUS case. And the case I cite is the most famous case in our country. It is a case which every American lawyer is supposed to have read in law school. That case is Marbury v. Madison, 5 U.S. 1 (1803), written by Chief Justice John Marshall. At pages 174-175, Justice Marshall discusses Art. III, §2, clause 2:
If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. [emphasis added]
***
When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original…. [emphasis added]
But current supreme court jurisprudence has “evolved” to embrace the view which Chief Justice John Marshall ridiculed in this 1803 landmark case.
Folks! This is The Question of our Time: Must SCOTUS obey the Constitution?
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PUBLIUS HULDAH
Publius-Huldah's Blog 
[…] ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial of the Case Against Ariz… […]
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My understanding of PH’s argument is that although the lower courts may be capable of hearing the cases and have been assigned concurrent jurisdiction by federal legislation, Congress had no constitutional authority to do so.
The proper way for Congress to have handled the concurrent jurisdiction issue would be through the constitutional amendment process, not legislation. Only then would concurrent jurisdiction not violate Article III, Section 2, Clause 2. Therefore, any subsequent Supreme Court decisions permitting concurrent jurisdiction in these Art. III cases are unconstitutional and thus void as precedent.
Analogies are a very good way to understand complex situations. In the “mow my lawn” analogy made in an earlier comment, “someone-else” may also be given the authority to mow your lawn, but only if the grant of authority to someone-else was rightfully given by the owner of the property. For instance, your neighbor can’t give someone-else permission to mow your lawn. Only you, the owner of the property, has that authority. Even if your neighbor thought it might be a good idea, since the landscaper is too busy to mow your lawn, and even if someone-else would do an excellent job mowing your lawn. Your neighbor has no right to override your ownership rights and give someone else false authority to mow your lawn. In this case you have only given permission to mow your lawn to your landscaper. And your landscaper does not have the authority to subcontract mowing the lawn, via false authority, to someone-else without permission rightfully given by you.
landscaper = the Supreme Court
someone-else = lower courts
your neighbor = Congress
false authority = legislated concurrent jurisdiction
permission = proper authority
you, owner of the property = the Constitution
your ownership rights = the People’s Will
mow your lawn = to hear Art. III cases
rightfully given = by amendment
In other words (replacing the words):
“Lower courts” may also be given the authority to hear Art. III cases, but only if the grant of authority to lower courts was by amendment of the Constitution. For instance, Congress can’t give lower courts proper authority to hear Art. III cases. Only the Constitution has that authority. Even if Congress thought it might be a good idea, since the Supreme Court is too busy to hear Art. III cases, and even if lower courts would do an excellent job hearing Art. III cases. Congress has no right to override the People’s Will and give lower courts legislated concurrent jurisdiction to hear Art III. cases. In this case the Constitution has only given proper authority to hear Art. III cases to the Supreme Court. And the Supreme Court does not have the authority to subcontract hearing Art III. cases, via legislated concurrent jurisdiction, to lower courts without proper authority by amendment of the Constitution.
Does this comply with your argument, PH?
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I am stunned to be reading this from a supposed lawyer. Many courts may have concurrent original jurisdiction. That’s what occurred in this case. Both the Supreme Court and the United States District Court in Phoenix have concurrent original jurisdiction over this matter. Article III’s grant of original jurisdiction to the Supreme Court does not deny original jurisdiction to other courts. The grant was of original jurisdiction, not exclusive jurisdiction.
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KeithDB! Whether you are “stunned” or not is simply irrelevant – one’s emotional reactions to this issue are of no importance whatsoever.
What IS important – and this is the fundamental constitutional issue of our time – is whether the federal government must obey the Constitution – or whether those in the 3 branches may do whatever they want.
I examine that issue in my last paper:
Read it, and then let us have a reasoned, civil, & dispassionate discussion of the issues. PH
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I read it. It continues to be ignorant of the point. There is no question that the Supreme Court has original jurisdiction in all such cases, INCLUDING THIS PARTICULAR CASE. So does the District Court. Your argument relies on the false notion that only one court can have original jurisdiction. In fact, many can.
The Founders themselves passed the Judiciary Act of 1789 making this the case, and it was signed into law by George Washington himself. The Supreme Court has ruled on this numerous times. See e.g. Boers v. Preston, 111 U.S. 252 (1884) (“The constitutional grant of original jurisdiction to this Court of all cases affecting consuls, does not prevent Congress from conferring original jurisdiction, in such cases, also, upon the subordinate courts of the Union.”).
As stated, it’s a concept called “concurrent jurisdiction.” It’s well established and apparently you just missed it.
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Read it again – this time with an open mind. Lay aside what you were told in law school. Think outside of the box they built for you. Read the cited Federalist Papers. Look at the text of Art. III, Sections 1 and 2, and diagram it – make a chart.
Ask yourself: Can Congress amend the Constitution by making a law? If so, what is the purpose of Article V?
Can the supreme Court amend the Constitution by writing an opinion? If so, what is the purpose of Article V?
Do not be so quick to belittle those who think independently. Remember, Galileo was condemned by the Inquisition for saying the sun is the center of our solar system. You too, can learn how to think independently. But first, you must open your mind. PH
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Keith, You are just repeating the same stuff.
I know about the SCOTUS opinions on this issue. I know about the acts of Congress on this issue.
I reject the notion that SCOTUS may change the Constitution by opinion. I reject the notion that Congress may change the Constitution by making a “law”.
Try this: Lay aside what SCOTUS and Congress have said about federal court jurisdiction. Look at the actual text of Art. III, 1 & 2. What does it actually say?
PH
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Keith!
What is your purpose in posting on my site?
Why is it important to you what I think?
I am an independent thinker. Does that bother you?
Forget for a moment the fear of sanctions. Just Look at Art. III, Sections 1 & 2. What does it actually say? Forget what judges & other lawyers say it says. Just look at the actual text, using *your own* brain.
If you are unwilling to do this, we have nothing further to say to one another! PH
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*****[first part of comment deleted]*****
Article III unquestionably establishes that the Supreme Court has original jurisdiction over this case. There is no question that the law at issue also states that the Supreme Court has original jurisdiction over this case. Accordingly the law is not in conflict with the Constitution. It really is as simple as that.
Article III does not say that the Supreme Court exclusively has original jurisdiction. Article III does not say that only the Supreme Court may have original jurisdiction. Article III does not say that other lesser courts cannot also have concurrent original jurisdiction. The words are not there no matter how energetically you try to write them in.
*****[rest of comment deleted]*****
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Keith DB:
1. Do you agree that Art. III, §2, clause 1, lists the cases of federal cognizance – i.e., it lists the categories of cases which the federal courts are permitted to hear?
2. Do you agree that the first sentence of Art. III, §2, clause 2, lists two of the categories identified in clause 1, and states that the supreme Court SHALL have “original jurisdiction” in ALL such cases?
What does the word, “all” mean?
What does the word, “shall” mean?
There is the express grant of exclusive original jurisdiction over those two categories of cases to the supreme Court.
Do you now see?
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NOTE: The numbers in parens () were added by PH to Keith’s post in order to facilitate her response.
1. Yes.
2. Yes. And the Supreme Court has original jurisdiction in this case. However, Article III does not say that ONLY the Supreme Court have original jurisdiction.
(1) “All” means every. And “shall” means must. Thus, in every such case the Supreme Court must have original jurisdiction. It does, to include in this case.
(2) However, your conclusion does not follow that since the Supreme Court has jurisdiction in all such cases that it must be the ONLY court with such jurisdiction. Jurisdiction simply means authority to hear and decide. Many courts may concurrently have jurisdiction to hear and decide a case.
(3) If I have shall have the right to live in all homes that I own, that does not preclude others from also being able to live in my home. Indeed, others (such as my wife) might even have the same, concurrent right that I have.
(4) Your conclusion that this authority to hear and decide a case is exclusive to the Supreme Court, simply because it expressly includes the Supreme Court in all such cases, is false. The Founders themselves said that when passing the Judiciary Act of 1789 establishing such concurrent original jurisdiction for such cases the year after the Constitution was ratified in the very first Congress under that Constitution. The Supreme Court has said so many times in cases going back to at least the 1830s.
(5) You have the luxury of ignoring the Supreme Court, something you are open about doing. That’s what has to be done to sustain your position. The Judges in the case, and the lawyers for Arizona do not have that luxury. The District Court judge is flat out bound by Supreme Court precedent. The lawyers for Arizona are compelled to consider it and address it with something more than “I don’t cite the Supreme Court.”
(6) Just for the record, I don’t agree with the Judge’s decision in this case. Long before this case I stated that federal preemption did not apply to such issues. network54.com/Forum/594658/thread/1202582822/My+Response+to+Local+Law+Professor+on+Illegal+Immigration-
(7) I simply understand that “original jurisdiction” is not the same as “exclusive original jurisdiction.” You are writing in the word “exclusive” that is not there.
(8) Further, I make a living sueing the federal government. I know what’s involved. I know how often it happens. If your theory is correct every such suit I file must be heard by the Supreme Court. I am not sure if you have even considered the utter impossibility of the Supreme Court sitting as the original court for every legal action for the thousands of cases every year involving the federal government as a party.
(9) It cannot happen, and nothing in the law or Constitution requires this utter impossibility to happen.
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Keith:
(1) & (2) So! The Constitution says the supreme Court “must” conduct the trial [i.e., have original jurisdiction] of “every” case (of federal cognizance) affecting Ambassadors, public ministers, consuls, & where a State is Party.
But then, you deny this by saying that other courts also may conduct the trial [i.e., have original jurisdiction] for those same cases! That is logically impossible: the “ALL” and the “SHALL” make it exclusive in the supreme Court.
Furthermore: Where does the Constitution grant trial jurisdiction over cases (of federal cognizance) involving Ambassadors, public ministers, consuls and those where a State is Party to any court other than the supreme Court? Trial jurisdiction over those cases is granted to the supreme Court alone.
Art. III, Sec. 2, clause 2, SECOND SENTENCE, is the grant of trial jurisdiction over the other categories of cases (of federal cognizance) to lower federal courts. [As to the concurrent jurisdiction of STATE courts, see Federalist No. 82.]
How can you ignore The Constitution’s precise division of cases (of federal cognizance) into those (1) over which the supreme Court is to exercise trial jurisdiction, and those (2) over which the Constitution says it is to exercise only appellate jurisdiction?
(3) Here you commit the dreaded fallacy of the false analogy:
You may well own many homes and have the right to live in all of them. You may also rent or lend them to others.
But that is logically unconnected to the Constitution’s express grant of trial jurisdiction to the supreme Court in ALL of two categories of cases; and the Constitution’s grant of trial jurisdiction over ALL the other cases (of federal cognizance) to other courts.
(4) Read carefully Sec. 13 of the judiciary act of 1789: It did NOT purport to divest the supreme Court of exclusive trial jurisdiction of all civil cases of federal cognizance where a State is a party except for those cases which were removed altogether from the judicial power of the federal courts by the 11th Amendment (ratified 1795).
Actually, Sec. 13 acknowledges that the supreme Court has exclusive trial jurisdiction of ALL cases of federal cognizance where a State is Party [except for those cases which were taken away by the 11th amendment.]
Of course, cases between “a state and its citizens” are NOT cases of federal cognizance. The enumeration at Art. III, Sec. 2, clause 1, is limited – and reflects the full extent of the cases which federal courts have constitutional authority to hear.
I should write a paper on this. Here is a link to the Judiciary Act of 1789: http://www.constitution.org/uslaw/judiciary_1789.htm
(5) We need people in Congress who will do what Hamilton discussed in Federalist No. 81, 8th paragraph.
I cite the Federalist, Madison’s Journal of the Federal Convention, etc. as authority. See Roger Pilon’s (Cato Institute) quote in my last paper. I do not cite SCOTUS as authority because they have abandoned The Constitution and know no standard but their own wills.
Every litigation attorney has his/her own style. For me, it worked well to strike at the heart of the matter and not nibble at the fringes.
No! No! No! The District Court judge is NOT bound by SCOTUS precedent! That is a Lie they told us in law school and we hear it so often we all believe it (well, except for me). Our Oaths are to The Constitution! NOT to obey the Courts. It is our sworn duty to defend the Constitution from the Courts as well as from Congress and the Executive Branch. (Art. VI., clause 3).
(6) I read Prof. Hill’s post and yes, it is shallow and not well thought out. Yours was better – much better! But mine is the best of the three because I consulted The Federalist Papers and went to the original intent of the supremacy clause. Read THIS: the-arizona-immigration-law-the-supremacy-clause-of-the-u-s-constitution-exclusive-concurrent-jurisdiction-explained/
(7) To the term, “original jurisdiction”, add (as the Constitution does), the two words, “ALL” & “SHALL”, and you get exclusive original jurisdiction:
In ALL Cases (of federal cognizance) affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be Party, the supreme Court SHALL have original jurisdiction…
My argument doesn’t require me to add “exclusive”, because the “all” and the “shall” do the job. Note that Sec. 13 of the Judiciary Act of 1789 did add the word, “exclusive”! But that was redundant.
(8) I handled a few lawsuits (trial & appellate) in my time! Retired now.
No! No! No!
a) Only if the cases (of federal cognizance) you file affect ambassadors, other public ministers and Consuls; or where a State is party, do you invoke the trial jurisdiction of SCOTUS.
The Constitution does not grant to SCOTUS trial jurisdiction by virtue of the federal government’s being a party! An ambassador, public minister, consul, or a STATE must be party in order to qualify for SCOTUS’s trial jurisdiction.
b) Federal court dockets are clogged with litigation arising out of federal statutes which are unconstitutional as outside the scope of the legislative powers granted to Congress by the Constitution. See also para 5 of the following paper: the-trial-of-the-lawsuit-against-the-state-of-arizona-must-supreme-court-judges-obey-the-constitution-3/
(9) In order to restore our Constitutional Republic with its federal form of government, a peaceful and orderly dismantlement of the thousands of unconstitutional federal programs and agencies must be effected. I am old enough to clearly remember the days before the creation & expansion of the administrative regulatory & welfare state. People rarely had anything to do with either the State or the federal government! City & county governments did what they were supposed to do, and Our People actually managed their own lives. And they were happier for it. What kind of world do you wish to leave to our Posterity? PH
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NOTE: The numbers in parens () added by PH to Keith’s post.
(1) Just a further addendum to what I wrote above. Perhaps the reasons I believe the Judge’s decision on preemption were wrong can help illustrate my point.
(2) The thrust of the Federal government’s argument in this case is that the federal government’s unquestioned authority to deal with illegal immigration is exclusive, depriving the State authority to act against illegal immigration. Your argument is similar to that of the Federal Government. Your claim is that the Supreme Court’s unquestioned grant of authority to hear all such cases thereby denies any other court the authority to hear such cases.
(3) In my view, both you and the Federal government are wrong. Under our Constitutional scheme that the Federal government can deal with illegal immigration does not preclude States from having the concurrent authority to also deal with illegal immigration. Under our Constitutional scheme, that the Supreme Court has authority to originally hear all such cases does not preclude other courts from having concurrent authority to hear such cases.
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PH, doesn’t the fact that the Supreme Court is not required to hear appeals from the lower courts, significant?
In an earlier comment, I noted that a mandate of original jurisdiction requires the Supreme Court to hear the case without appeal as the ultimate arbitrator of fact and law. If the lower courts have concurrent jurisdiction, the case becomes appealable, but will only come before the Supreme Court on appeal if they approve writ of certiorari.
The Supreme Court would have a choice whether to hear the case. They have no choice whether to hear the case under the constitutional mandate of original jurisdiction. Therefore exclusive jurisdiction is imposed by the absence of choice. (Unless in Art. III cases the Supreme Court is required to hear them on appeal without exception. Can you clear this up?)
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You are absolutely right and very astute! I don’t have the statistics handy, but out of a hundred or so petitions for writ of certiorari filed with the supreme Court, it hears only a handful. So yes! Even though the Constitution mandates that the supreme Court exercise trial jurisdiction over cases (of federal cognizance) where a State is party, the State can be (under the current conventional “thinking” on this issue which is demonstrated by Keith) divested of her right to a determination of her case by the supreme Court:
If a State loses in the circuit court of appeals, and the supreme court denies cert, then the supreme Court never hears the case!
Few lawyers would be able to figure this out. Applause! Applause!
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There seems to be agreement as to the meaning of “in all cases”. The difficulty appears to be with the meaning of “shall”. Perhaps this might help:
Nolo’s Plain-English Law Dictionary
nolo.com/dictionary:
shall
an imperative, usually indicating that certain actions are mandatory, not permissive. Compare: may
may
An expression of possibility, a permissive choice to act or not, as distinguished from “shall,” which is an imperative or often mandatory course of action. (See also: shall)
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Originalist, it would help any person who seeks the Truth!
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There is no disagreement on the word “shall” either. The Supreme Court must have original jurisdiction on this case and similar cases to which the United States is a party. There is no discretion in that regards. Nothing can deny the Supreme Court such authority to hear the case. For example, Congress cannot pass a law denying the Supreme Court jurisdiction in this case or any other case where the Supreme Court has Constitutionally mandated original jurisdiction. Nothing, can take away the Supreme Court’s authority to hear and decide the case.
But once again, nothing has taken such authority away from the Supreme Court. That the Supreme Court has original jurisdiction on this case, does not preclude other courts from also having original jurisdiction on this case.
If I shall (as in must) have authority to mow my lawn does not mean that someone else may not also have authority to mow my lawn. Part your problem is that you don’t understand what “jurisdiction” means. It means the authority to review and decide. If I shall have authority to mow my lawn that does not mean someone else can’t also have that authority. If the Supreme Court shall have the authority to review and decide a case, that does not mean that some other court does not also have the authority to do so.
Now if the Constitution said the Supreme Court shall have sole jurisdiction (authority) or exclusive jurisdiction (authority) to decide the case, that would be a different matter. However, it does not say that, though you keep trying to write that in.
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Keith, always the well-mannered gentleman, says, “Part your problem is that you don’t understand what “jurisdiction” means.”
PH responds, “Mind your manners, or I will ban you from my site.” I may anyway because you are wasting my time.
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The object of the clause is original jurisdiction, not authority over original jurisdiction. The Constitution is exercising authority over original jurisdiction in the clause, not delegating it to the Supreme Court.
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YES!
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[…] that I didn't see offered, if I've missed it then I can only say please forgive my wearding ways. ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial of the Case Against Ariz… […]
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I hate to point out the flaw in your article, but there’s a big difference between original jurisdiction and exclusive jurisdiction. The Supreme Court may have original jurisdiction over matters involving officials of foreign states, controversies between the federal government and a state and actions by a state against the citizens of another state or foreign country, but that jurisdiction is not exclusive. Rather, it is concurrent with the jurisdiction of the district courts.
Because federal district courts have concurrent jurisdiction over the case you described, and the Supreme Court rarely accepts original jurisdiction in such cases. I’m pretty sure that Wikipedia summarizes this concept aptly, but you could read any number of cases, including California v. Arizona, 440 U.S. 59, 65 (1979): “It is similarly clear that the original jurisdiction of this Court is not constitutionally exclusive-that other courts can be awarded concurrent jurisdiction by statute.”
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Jon,
Apparently you have just entered into this controversy, as you seem unaware of the information which has been set forth at this site, by Dr. Alan Keyes, and in the comments on the last two articles at Canada Free Press. In other words, we are way ahead of you! Read the comments at Canada Free Press on both articles and my last two papers on this website. Here are the links to the CFP articles: http://canadafreepress.com/index.php/article/25983 and http://canadafreepress.com/index.php/article/26721
Read also Dr. Alan Keyes’ two articles: http://loyaltoliberty.com/WordPress/2010/08/arizona-cannot-constitutionally-be-judged-by-inferior-courts/ and http://www.wnd.com/index.php?pageId=188201
Be sure to read my last paper posted Aug 16, where I show the massive change in judicial philosophy which occurred over 100 years ago. I also address the objections raised by some lawyers.
I trust you see that the threshold issue is this: Must Congress & SCOTUS obey the Constitution? Or, may Congress & SCOTUS do whatever they want? Most lawyers have done as you did: cite court cases and/or the US Code. But that begs the question!
Then we can address any remaining concerns you may have.
Are you suggesting that we get our guidance on understanding the Constitution from Wikipedia instead of The Federalist Papers?
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“In all cases … in which a state shall be party, the Supreme Court shall have original jurisdiction.”
The United States Constitution
Article III Section 2 Clause 2
The Constitution clearly says the Supreme Court has original jurisdiction over cases in which a state is a party “[i]n all cases”. It is equally clear that the Supreme Court has ruled it does not have original jurisdiction in which a state is a party in all cases. Since the Supreme Court and the Constitution are in conflict, one of them has to be wrong. I say that by definition it’s the Supreme Court. I say the Constitution is the highest law of the land and the Supreme Court must subordinate itself to it. There are many lawyers, academics and even judges who say otherwise. Lots of them. Maybe even most of them. They say Supreme Court represents the highest law of the land, not the Constitution. That should scare everyone.
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It sure scares me! But look at the posts on this blog from the lawyers & others! THEY don’t see what is so clear to us! I would expect a home schooled 4th grader to understand Art. III, Sec. 2, clause 2! My Father would have thumped me on the head if I didn’t get something so obvious! “Publius! THINK! USE YOUR HEAD!”
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I am quite honored to read this paper by the person who has been MY teacher of the Constitution. During the controversy over Terri Schiavo, he was frequently on talk shows speaking out in defense of Terri and of The Constitution. His words at that time about the Constitution are what turned the lights on in my mind and showed me what a magnificent document our Constitution is.
http://loyaltoliberty.com/WordPress/2010/08/arizona-cannot-constitutionally-be-judged-by-inferior-courts/
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…[An] … article about the CA judge who struck down the will of the people regarding marriage being between a man and a woman, explains exactly why there is so much inconsistency between the Constitution our current laws. It is one of the best observations I have ever read.
We have courts redefining our language. If you can change the meaning of words, you can change our Constitution and our lives…without a fight.
I think this overthrow of the language comes not only from the courts, but the media and entertainment industry as well. We are being manipulated to ignore the plain natural traditional meaning of words, and with that is sown the seeds of our destruction. Changing the meaning of our words has become the KEY method used to subvert our culture, IMO. Submission becomes Peace, Bias becomes Diversity, Theft becomes Social Justice, Control becomes The Greater Good.
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Perhaps we should use the same definitions for the words in the Constitution as were used at the time it was written.
Had the Constitution been written in Latin, we wouldn’t have the problem as the language is “dead”, i.e remains unchanged.
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Being just a citizen I have always believed that the Constitution and the Bill of Rights were the “law of the land” as well as the Amendments to the Constitution. I do not understand how any laws or decisions can alter these documents. Is that not what Amendments are for ? I understand that interpretation of these things can alter the meaning of them – the 2nd Amendment being a prime example. Any reasonable person would have to acknowledge that AZ has the right to defend itself especially in light of the fact that the Federal gov’t has not performed it’s obligation to defend our borders. Solution would appear to be for the Feds to get off their a$$es and enforce the Constitutional laws. Neither party has done their job here. Why not ???
If some believe illegal immigration is not a problem – they need to come to the border states and observe.
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The “well settled law” argument springs eternal in these comments, and proves your point, even brilliant lawyers are taught to, and do, believe in precedent, not what the Constitution says, or means.
The common man knows multiple layers of paint applied over rust is an improper remedy.
To believe that it is within the power of Congress or SCOTUS to redistribute jurisdiction for these specifically enumerated cases because they have done so repeatedly (without an iota of authority to) is to believe these federal branches are the final arbiters of all authority, superior to the Constitution, and the people, whom are now rendered powerless.
This clause was specifically explained by Hamilton to the people in constituting our republic- who very much feared the abusive power of a central government, and so our Constitution was ratified with that wording very deliberately.
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very nice, liberty4usa! legally & factually correct; beautifully & powerfully written. You’d be good in front of a jury!
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Thanks PH! I was once somewhat persuasive within a jury body.
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If you look at Case v. Bowles, 327 U.S. 92 (1946) The Supreme Court addressed your issue:
“Another procedural point urged by the State is that since this is in effect a controversy between the United States and the State of Washington, the United States Supreme Court has exclusive jurisdiction under Article 3, Section 2, Clause 2, of the United States Constitution and the District Court lacked power to try the case. But it is well settled that despite Article 3, Congress can give the district courts jurisdiction to try controversies between a state and the United States.FN3 ”
Congress has done just that in 28 USCA 1251, 1331, and 1345. 28 USCA 1251 addresses why the case is not the exclusive jurisdiction of the Supreme Court:
“(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens.”
And 28 USCA 1331, 1345, grants the district courts original jurisdiction.
Thus, why the District Court had jurisdiction to hear the case.
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You seem to have missed the entire point of the article. I think that we are all in agreement that the Supreme Court does not consider itself bound by the text of Art. III, Sec. 2, clause 2 of the Constitution regarding original jurisdiction in cases where a state is a party. The issue under discussion is whether the Court has the authority under the Constitution to give Congress the power to alter the Constitution by statute.
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Congress does not need “the power to alter the Constitution by statute,” because the ability of Congress to set up inferior courts and to define their jurisdiction is an enumerated power of Congress. This is one of the legislative branch’s check on the judiciary.
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No one here is disputing the power of Congress to define the jurisdiction of the inferior courts. What is in dispute here is the power of Congress to define the jurisdiction of the Supreme Court. 28 USC § 1251 is problematic because it attempts to define the jurisdiction of the Supreme Court.
28 USC § 1251
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.
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§ 1251 is not problematic, because it only defines whether the grant of original jurisdiction is exclusive or concurrent. (The Constitution, alone, does not say whether the Supreme Court’s original jurisdiction is exclusive and authorizes Congress to grant concurrent jurisdiction to the inferior courts.)
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Jackie, See Art. III, Sec. 2, clause 2: What do the followings words mean: “all”, “shall”, and “all” again?
I suggest that the two “alls” suggest exclusivity; and the “shall” suggests mandatory.
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28 USC § 1251 is problematic because it changes original jurisdiction of the Supreme Court from required to optional. It takes away from the states the right to a trial before the Supreme Court. Changing a constitutional requirement to a government option requires a constitutional amendment.
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Yes! You defenders of the Constitution have provided some great quotes as you state great Truths about Our Constitution!
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If only you were there to explain original intent to the founders when they enacted the Judiciary Act of 1789 exempting certain cases where a State was a party from the exclusive jursidiction of the Supreme Court unphased by the seeming restraint under Article III, Sec. 2, Clause 2. I mean in 1789 they couldn’t possibly know what the drafters had intended right? I mean it makes perfect sense to provide for the establishment of inferior courts in section 1, and then give them power of cases involving states in Sec. 2, Clause 1, only to turn around in the very next paragraph and give the exclusive jursidiction to the Supreme Court for cases where the States are party, rendering the previous paragraph mostly invalid. It is obvious that the founders must have intended for the inferior courts to have appellate jurisdiction over the cases decided by the Supreme Court where a State was a party. Thank god the original originalist, John Marshall, came along to invaidate the Judiciary act using the court’s enumerated power of judicial review.
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Oily, hang on, I will address these things in my next paper(s). Meanwhile, do read Art. III §§1 & 2, very carefully. Diagram the paras. Consider the 5 Questions listed in my reply to Tony Phipps.
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The first Congress in 1789 could indeed have insights into the intentions of the framers that later Congresses could not presume to have. Contemporaneous sources can be useful tools to help us discern the intended meaning of the Constitution. Therefore, based on the text of the Judiciary Act of 1789 and the assumption that the members of the first congress could have had first hand knowledge of the intentions of the framers, I would consider it valid to argue that the framers did not intend for suits between citizens or aliens and states to be guaranteed original jurisdiction in the Supreme Court, only suits between states and between a state and the United States. If that is the argument you are making, I won’t disagree with you.
Judiciary Act of 1789
SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.
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Applause! Applause! And the 11th amendment (ratified 1795) did just that; it withdrew altogether from the judicial power of the federal courts, jurisdiction over cases filed by citizens of one State against another State, and by citizens or subjects of foreign countries against a State. So the Judiciary Act of 1789 was enacted (w/o constitutional authority) to fix a problem which the 11th Amendment later fixed (to a certain extent). Apparently, they didn’t have nit-pickers in Congress to cross the “i”s and dot the “t”s.
Never trust Congress.
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Ummmm………….Oily! Do re-read my last comment:
For your convenience, I quote it in part: “…So the Judiciary Act of 1789 was enacted (w/o constitutional authority) to fix a problem which the 11th Amendment later fixed (to a certain extent). Apparently, they didn’t have nit-pickers in Congress to cross the “i”s and dot the “t”s.
Never trust Congress.”
“w/o” means “without”.
PH is also, among other things, a logician!
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Vestri, I expect the “Oily Taintz” who has been posting here and posturing as “the real deal”, has never heard of The Federalist Papers! And even if s/he had, s/he would wonder why we would care about what some dead white men said 220 years ago. After all, the whole basis of their “law” is this: The Constitution means whatever the judges and congress say it means. That is why “Oily” kept repeating her/himself by telling us what Congress & SCOTUS said, and kept ignoring what The Federalist and The Actual Constitution say.
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It is funny, the dead white men seem to agree with Oily that is was within the province of Congress to prescribe the jurisdiction of the inferior courts
“The plan of the convention, in the first place, authorizes the national legislature “to constitute tribunals inferior to the Supreme Court.”2 It declares, in the next place, that “the JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish”; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. THE ONLY OUTLINES DESCRIBED FOR THEM, ARE THAT THEY SHALL BE “INFERIOR TO THE SUPREME COURT,” AND THAT THEY SHALL NOT EXCEED THE SPECIFIED LIMITS OF THE FEDERAL JUDICIARY. WHETHER THEIR AUTHORITY SHALL BE ORIGINAL OR APPELLATE, OR BOTH, IS NOT DECLARED. ALL THIS SEEMS TO BE LEFT TO THE DISCRETION OF THE LEGISLATURE.”
Federalist No. 82
The specified limits of the federal judiciary are found In Article III, Sec. 2, Clause 2 and includes “Controversies to which the United States shall be a Party” and “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”
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Vestri! You have completely misunderstood Federalist No. 82. The subject matter of No. 82 is whether the States have concurrent jurisdiction with the lower federal courts in cases of federal cognizance.
Read it! Outline it. Copy it and paste it onto MS Word. Use color coding to help you sort out the strands of thought. Do this until you understand.
While I always say that one does not have to be a lawyer to understand the Constitution, there are some places, when Hamilton is discussing the judicial branch, where litigation experience is of great help in understanding what Hamilton is talking about. But it may be that if you work hard enough, you will get it. If not, ask an attorney who does this type of litigation to explain it to you.
Apparently, you are the same as the person who was posting here before under the name “Oily Taintz”. You may post if you advance the discussion. But if your purpose here to waste my time, I will delete you!
But do not despair! You can always start your own blog!
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My California brother sent the original article to me and I saw it repeated on Facebook but have yet to see it on ANY news broadcast. Haven’t even heard it on the radio! Don’t let the firestorm burn out. Our prayers are also with you as well as our conservative Justices. I suspected it was you!
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Welcome to the land of the deliberately ignored.
I have been writing about Constitutional violations (see my earlier comment) since my 2007 article “Immigration control is UN-Constitutional!” and it has been about as well received as your excellent and scholarly work.
As the Mogambo Guru is so fond of saying: “This culture is freakin’ doomed!”
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[…] of the information below is referenced by Publius-Huldah’s Blog, which uses it to conclude, ONLY the US Supreme Court has Constitutional Authority to Conduct the […]
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Pingback by Discussion: Original Jurisdiction – Tenth Amendment Center Blog | August 3, 2010 |
You have misinterpreted constitutional law and have failed to consider a federal statute that speaks directly to this issue. Although it’s true that the Supreme Court has original jurisdiction over cases in which a state is a party, the Constitution stops short of mandating exclusive jurisdiction in those cases. The Constitution authorizes Congress to vest concurrent jurisdiction “in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. CONST. art. III, § 1.
Congress has done just that: “The Supreme Court shall have original but not exclusive jurisdiction of all controversies between the United States and a State.” 28 U.S.C. § 1251(b)(2) (2009). In other words, while the Supreme Court could hear the Justice Department’s case against Arizona, the district court could also hear it.
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I see now that you did mention 28 U.S.C. § 1251 — the version of your article that I read was much shorter and omitted that section — but for the reasons explained above, the statute is constitutional.
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“In all Cases … in which a State shall be Party, the supreme Court shall have original jurisdiction..” [emphasis added]
1. First, I trust it is obvious that Art. III, §2, clause 2, addresses only those proper objects of the judicial power of the United States which are enumerated in the first clause of that section. As to STATES, those proper objects are cases arising under this Constitution, the Laws of the United States, and controversies between two or more States. Obviously, the judicial power of the United States does not extend to matters of domestic concern within the sovereign States.
2. What is the plain import of those words? How did Alexander Hamilton in the quoted Federalist Paper, and SCOTUS in the quoted passage from Marbury v. Madison (1803), understand them?
3. May Congress and SCOTUS properly redefine those words?
4. Are Congress and SCOTUS subject to the Constitution? Or is the Constitution subject to the changing wills of Congress & SCOTUS?
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The power to constitute inferior courts includes the implied power to define their jurisdiction (within the limits prescribed by the Constitution). The phrase “the supreme Court shall have original Jurisdiction” does not prohibit inferior federal courts from having concurrent jurisdiction. What it means is that the Supreme Court’s original jurisdiction cannot be removed in those cases (and, according to Marbury v. Madison, cannot be expanded beyond those cases).
The quotation from Marbury v. Madison is taken out of context. The preceding paragraph provides the context: an attempt by Congress to expand the Supreme Court’s original jurisdiction beyond the types of cases that are listed in Article III, Section 2.
This case differs in that the act of Congress that you condemn as unconstitutional is neither an expansion nor a restriction of the Supreme Court’s original jurisdiction but the grant of concurrent jurisdiction in lower courts.
While we’re on the topic of Supreme Court cases, there is a case that speaks more directly to this issue:
The excerpt that you quoted from Federalist No. 81 admittedly challenges this reading, but the Federalist Papers are not law. Even Chief Justice John Marshall, the author of Marbury v. Madison, did not view the Federalist Papers as binding:
Congress does a lot of things that are arguably unconstitutional. Setting up the court system is not one of them. I think that your readers would be better served by an analysis of the merits of the Justice Department’s preemption argument.
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#6 Fred Flint
From Boers v. Preston, 111 U.S. 252 (1884):
“Our conclusion is that as it does not appear from the record that the defendant is an alien, and since it is consistent with the record that the defendant was and is a citizen of the same state with the plaintiff, the record, as it now is, does not present a case which the circuit court had authority to determine. Without, therefore, considering the merits of this cause,
The judgment must be reversed and the cause remanded for such further proceedings as may be consistent with this opinion. It is so ordered.
MR. JUSTICE GRAY. MR. JUSTICE MILLER and myself concur in the judgment of reversal, on the ground that the circuit court had no jurisdiction of the case, because the record does not show that the defendant was an alien, or a citizen of a different state from that of which the plaintiff was a citizen. We express no opinion upon the question whether, if the record had shown that state of facts, as well as that the defendant was a consul, the circuit court would have had jurisdiction.”
Where does it say in the HOLDING above, not DICTA, that “the Court’s original jurisdiction under Article III isn’t necessarily exclusive and that Congress has the authority to grant concurrent jurisdiction to lower courts over matters for which the Constitution grants the Supreme Court original jurisdiction”?
Dicta is merely judicial opinion, which is informative or explanatory. It is not the holding or conclusion, which is binding.
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(cross posted at CFP)
Publius, correct me if I am wrong::
The Supreme Court has DISCRETIONARY APPELLATE jurisdiction over facts and law in cases originating in inferior courts. This means the Court can decide NOT TO ACCEPT writ of certiorari. This “discretion” violates the absolute OBLIGATION of the Court to hear the case when it has constitutionally mandated original jurisdiction. Who gives the Supreme Court this appellate level discretion? Why Congress does, and they can change the law at any time. Therefore, the argument that “concurrent original jurisdiction does not violate the text of the Constitution” falls flat on its face.
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 Constitution REQUIRES the Supreme Court to hear cases in which a State is a party, AT THE TRIAL LEVEL WITH NO APPEAL. The Court cannot refuse. If the case were to come to them from a lower court it would be on appeal, and they may choose not to hear the case (based on the legislative whims of Congress in giving them appellate discretion or not.) Only a constitutional amendment, which permitted concurrent original jurisdiction in the lower courts with absolute right of appeal to the Supreme Court, would not violate the current constitutional mandate but allow the lower court to hear the case.
(PH, thank you for your e-mail response. I’m sorry you have to weather the gratuitous nastiness from some that comes with bravely searching for Truth. Truth can never be defeated. “You know you’re over the target when you start receiving flak.”)
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Jetstream! Your comment is very astute! Applause! Applause! This is what happens in 99% (or so) of the federal cases:
They are filed in a federal district court where they have a trial. The loser appeals to the Circuit Court of Appeals for that district. The person who loses in the Circuit Court of Appeals, files a petition for writ of cert to SCOTUS asking SCOTUS to hear the case. SCOTUS denies cert [i.e., refuses to hear an appeal] in 99% (or so) of the cases.
So, yes, even though Art. III, §2, clause 2, GUARANTEES to STATES that the Supreme Court will decide their case (when it is a “federal” issue involving the constitution, a federal statute, or a dispute with another STATE); under the incorrect view which has dominated for a very long time, that constitutional guarantee may be stripped from the STATES by an Act of Congress or by SCOTUS denying cert.
I raise ducks. Ducks always follow the duck in front. Always. Most lawyers are just like my ducks. They do not know to think independently. They believe what they have been told; they accept it w/o question; and they parrot it. Conformity is embedded into their minds. Remember Galileo! He said the sun was the center of our system; but the prevailing view was that the earth was the center. He was condemned by the Inquisition! For a very long time, all 3 branches of our federal government have abandoned Our Constitution. But the lawyers believe that whatever SCOTUS says is LAW. They actually believe that!
It is such a joy to commune with someone who can actually think independently. Thank you for entering my internet life! BTW: B/c of your name, I wonder if you are a former fighter pilot?
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Thank you for your kind words. I too feel an affinity for those like yourself who think independently. It’s difficult to do and confusing, but oh so satisfying when you can peel back the surface and uncover Truth. It’s like discovering hidden treasure.
BTW: No, I have never flown a jet, just small planes. The powerful forces of the jet stream gather to push us in a certain direction. It’s up to us to decide if it’s the wrong way to go and fight the force.
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…or the right way to go and make use of its power.
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Jan Brewer and the State of Arizona filed a response to the District Court.
Has Arizona fallen for the trap laid out by the Obama regime?
What happens next?
Arizona loses on appeal and SCOTUS denies cert?
Obama has already allowed the drug traffikers to annex Arizona land between its border and 80 miles to the north of it.
Rich
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From the Constitution:
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.
From the actual suit:
JURISDICTION AND VENUE — This action arises under the Constitution of the
United States, Article VI, Clause and Article I, Section 8, and the Immigration and
Nationality Act (?INA?), 8 U.S.C. § 1101, et seq. This Court has jurisdiction over
this matter pursuant to 28 U.S.C. §§ 1331 and 1345, and the United States seeks
remedies under 28 U.S.C. §§ 1651, 2201, and 2202.
—
From the U.S. Code (i.e. laws passed by congress):
1. § 1331. Federal question – The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.
2. § 1345. United States as plaintiff – Except as otherwise provided by Act of Congress,
the district courts shall have original jurisdiction of all civil actions, suits or proceedings
commenced by the United States, or by any agency or officer thereof expressly authorized
to sue by Act of Congress.
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[…] ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial of the Case Against Ariz… […]
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Pingback by Questions About Federal Judge Ruling on Arizona Law | Bob's Blog | August 2, 2010 |
During the civil rights era of the ’50’s & ’60’s, the Federal government was constantly filing suits against the Southern states. All of them were filed in the U.S. District Court, appealed to the Circuit Court, and ended up in the Supreme Court. This would seem to give precedent to the Federal government case against Arizona being filed in District Court.
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So, are you saying that because the federal government did it, it must be “legal”? I, e., may the federal government properly act in accordance with the precedent it has set, instead of in accordance with The Constitution?
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Just like President Nixon said one time,“When the President does it, that means it is not illegal.”? It doesn’t work that way, we have a Constitution.
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Ms. Huldah:
As much as I applaud your reasoning in this matter, and as much as I would like to see the Federal government getting taken down a peg or two vis-a-vis States and the Enumerated Powers Amendment, I sadly have to point out the fact that the State of Arizona did, in fact, “play ball” with this Federal District Court and is, in fact, abiding by that Court’s injunction.
Now either the State of Arizona is being very poorly served by its Attorney General and staff, or the Federal District Court was indeed the proper jurisdiction in which to bring this case.
It seems absurd that the laws of a sovereign state, properly legislated and signed under that state’s constitution can be nullified by what is, after all, a Washington appointed Federal non-entity, (with all due respect, Your Honor!), but it works the other way around also.
The Alleged Hawaiian’s recent Federal Offshore Drilling Moratorium was undone by… a Federal District Court judge,(a sterling chap and a leading light to aspiring jurists everywhere!).
I can understand the WHY of the SCOTUS acquiescing and even promoting the concept of subordinate jurisdictions, even a non-lawyer like myself can appreciate the perils of a SCOTUS “clogged docket”.
Think of how many time some aggrieved buffoon flatulates about “taking this all the way to the Supreme Court!”.
Without the District and Circuit courts in existence, all the plaintiff would need do is drag his State into his lawsuit.
The crux of the issue, however, is that Arizona showed up for the “Oyez!”, and now it;s not “baseball” for them to try and say that that was only “pre-season” and shouldn;t count.
Now, since AZ’s request for an expedited appeal has been denied, perhaps an appeal to the SCOTUS for a writ of mandamus to the 9th Circuit to get off its keester and hear this appeal wight be in order.
AZ is going to argue that the District’s injunction harms the State, obviously…and what are the Feds going to retort to this?
“No it doesn’t?”
I hardly think that the DoJ needs four weeks to come up with THAT ‘un…it’s not like Federal or State civil service attorneys are padding up billable hours, is it?
One would hope that the DoJ had already thought out the reasoning why they needed immediate injunctive relief BEFORE they ever filed, yes?
But IANAL, so what the heck do I know?
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Before we urge Arizona to declare war on Mexico, perhaps there are some OTHER Constitutional issues to consider that might REDUCE the violence instead of increasing it.
“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” – U.S. Supreme Court, Norton v. Shelby County, 118 US 425 (1886)
“Immigration control is UN-Constitutional!” And so is Drug Control, for all the same reasons! That means that ALL the Federal “laws” regulating immigration and drugs are themselves ILLEGAL!
The PROPER course of action for Arizona and other states is to invoke the 10th Amendment and NULLIFY the Federal drug and travel prohibitions within their state’s boundaries.
The Constitution is SUPPOSED to be the supreme law of the land. If the Federal government is allowed to break “the law”, why should WE be required to obey it? Where does that leave statements about “The Law APPLIES TO EVERYONE” or “Enforce the existing laws”? What happens when the government makes and “enforces” UN-constitutional, i.e. ILLEGAL laws?
We know about the violence during Alcohol Prohibition–and those laws actually WERE constitutional laws! If prohibition did NOT work when it was Constitutional and therefore “legal”, by what twisted logic can it be expected to work when it is UN-constitutional and IL-legal? We have prohibition and we have violence. We repealed prohibition and the violence stopped—immediately! Gee, is it really that simple? Could REPEAL really work again?
BEFORE drugs were artificially made illegal there were no black markets in drugs, there were no drug lords and there were no gun fights over drug territories. And BEFORE the established border crossings were closed with armed guards— BEFORE un-constitutional “laws” were created making travelers “illegal” —there were no “illegal” immigrants (or “illegal” migrant workers) and no trespassers over private lands and thru deserts because it was easier and safer to cross at the long established, public border crossings. “Illegals” only have that status because the Federal government created “laws” that are un-constitutional and therefore are “illegal” themselves. The WRONG THINGS are being called “illegals”!
Today’s problems are no different from the problems CREATED by the government’s Prohibition of Alcohol.
It is US drug prohibition that created the Mexican Drug Lords—just like US alcohol prohibition created Al Capone and his ilk–and it is continued US drug prohibition that makes them rich. The SOLUTION that nobody wants to talk about is the SAME solution that our grandparents used. The ONLY solution that WILL work is the same one that DID work: REPEAL! REPEAL THE PROHIBITIONS!! The violence stopped IMMEDIATELY for our grandparents and it will do so for us.
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[…] of the information below is referenced by Publius-Huldah’s Blog, which uses it to conclude, ONLY the US Supreme Court has Constitutional Authority to Conduct the […]
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Pingback by Discussion: Original Jurisdiction – Pennsylvania Tenth Amendment Center | August 1, 2010 |
The State of Arizona is a party on every single criminal case filed in the superior courts of the State of Arizona.
Does the Supreme Court have original and exclusive jurisdiction on every single felony criminal case in the state of Arizona?
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NO! Not at all, Jim!
Art. III addresses ONLY the “judicial Power of the United States” (the federal courts); it has nothing to do with judicial matters which are within the exclusive province of the State courts.
Respecting the STATES, the judicial power of the federal courts extends only to (1) matters arising under the U.S.Constitution, and laws of Congress made pursuant to the Constitution & (2) to controversies between two or more States.
In Federalist Papers 80-83, Alexander Hamilton explains the original intent of these provisions.
See also, if you like, my paper herein on the Enumerated powers of the Federal Courts.
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Please read Boers v. Preston, 111 U.S. 252 (1884), in which the Supreme Court long ago held that the Court’s original jurisdiction under Article III isn’t necessarily exclusive and that Congress has the authority to grant concurrent jurisdiction to lower courts over matters for which the Constitution grants the Supreme Court original jurisdiction. Under this very longstanding precedent and 28 USC 1251, this case was lawfully and appropriately filed in the US District Court.
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This is The Controversy:
1. Must Congress, the federal judges & the president obey the Constitution?
2. Or, may Congress, the federal judges & the president do whatever they want?
Our Constitution is fundamental law: All acts of Congress, the executive branch, and the federal courts must conform to the Constitution in order to be lawful. Any act, order, or decision of any branch which contradicts, or is not authorized by, the Constitution is a lawless usurpation. This is the theme of all my papers.
The Question is: Which side will each of us choose?
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Under our system of Constitutional government, the Supreme Court gets to decide what is and what isn’t permitted under the Constitution. And the Supreme Court has said repeatedly, for well over 100 years, that its original jurisdiction isn’t exclusive and that Congress has the authority under the Constitution to give lower federal courts concurrent jurisdiction over matters that are within the Supreme Court’s original jurisdiction. This is clear cut and not controversial. Reaching a conclusion that the Constitution doesn’t permit the district court to hear a case in which a state is a party is possible only if you elect to ignore dozens of Supreme Court cases.
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No, SCOTUS is not the final authority. We have checks & balances:
Federal judges serve only during “good behavior” (Art. III, §1,), and may be impeached & removed for usurpations. This is the “check” which the legislative branch has on the judicial branch. In Federalist No. 81, 8th para, Hamilton addressed judicial usurpations & the judiciary’s “total incapacity to support its usurpations by force”:
“…the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations….”
In Federalist No. 33 (6th para), Hamilton recognizes the federal government as our “creature” [note the term, “creature”] and as subject to the Constitution:
“…If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [The Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify…”.
Hamilton or Madison also say, in Federalist No. 49, 3rd para:
“As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority [the PEOPLE] …whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?”
Clearly The People are the ultimate authority on the meaning of the Constitution. We are now asserting Our ultimate authority.
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So you want to impeach every justice who has ever voted in favor of a decision upholding the concurrent nature of the Court’s Article III original jurisdiction? Historically, that’s probably dozens, if not the majority, of the justices who have ever served on the Court. For example, Ginsburg, Stevens, Souter, Kennedy, Rehnquist, O’Connor and Breyer all sided with the federal government position in the majority or concurring opinions in United States v. Virginia in 1996, which began with a US complaint against Virginia and VMI in Federal District Court.
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Let us not quibble, Mr. Flint. Rather, let us address the larger issues: Can you, e.g., address the substance of my last comment? Do you now see that The People, not Scotus, are the ultimate authority on the meaning of The Constitution?
It certainly does not surprise me that the justices whom you named took the position they did! I, for one, have no respect for any of them as judges.
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Mr. Flint, the system of government you describe, whereby supreme authority is vested in a body of men and not in a written constitution, cannot legitimately be described as constitutional unless the constitution itself confers that authority onto that body. In my readings of the Constitution I have not found any clause that grants the Supreme Court that authority. If you could point out to me the clause in the Constitution that gives the Supreme Court this power I would be most appreciative. According to my limited understanding of the Constitution, the states must agree to any changes to it in order for the changes to be legitimate.
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Do you disagree with Marbury v. Madison? Do you really think that the Supreme Court has been wrong for over 200 years in asserting authority to declare laws unconstitutional?
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Mr. Flint: Here is more on how “checks & balances” works: Just as the legislative branch has a check on the judicial branch via impeachment of usurping or misbehaving judges; so the judicial branch has a check on the legislative branch by declaring UNconstitutional those acts of Congress which exceed the scope of the legislative powers delegated to it or which contradict the Constitution. [Really, Alexander Hamilton lays this all out in Federalist No. 80-83!]
Has anyone here asserted that there is no check on the legislative branch!??
And are you not evading the basic issues? (1) Are federal judges subject to the Constitution? Or is the Constitution subject to the will of the judges? (2) Are WE The People the ones who have ultimate authority to determine the meaning of the Constitution? Or do the federal judges have this power?
In short, is it your position that the judicial branch is subject to no check whatsoever?
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The Supreme Court has the authority to determine whether a law passed by Congress or a state is constitutional or unconstitutional. Such a decision by the majority of the Court is the law of the land unless and until either (1) a subsequent Supreme Court decision reverses the earlier decision or (2) the Constitution is amended to address the infirmity identified by the Court. You are correct that Supreme Court justices may be impeached, but such an impeachment has no effect on the decisions of the Court issued prior to such an impeachment.
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The Supreme Court provides a check on Congress to prevent Congress from passing legislation that violates the Constitution. Who provides a check on the Supreme Court to prevent the Court from handing down a ruling which violates the Constitution?
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Thank you for your fine article pointing out that only the supreme court constitutionally has jurisdiction over SB1070. We Arizonans very much appreciate the support.
I may be off base here, but it strikes me that Arizona should have fought this suit on 10th Amendment grounds, since the federal government has no constitutional authority over immigration. That power is strictly reserved to the individual states.
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“…the federal government has no constitutional authority over immigration.”
You are exactly right on that point. I explored that along with some historical points in my article “Immigration control is UN-Constitutional!”
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I found a link to this post by way of Digg.
Publius, I think your reading of Article III is incorrect, or at least it is adverse to the way the Court has read Article III for two centuries. The Court sees original jurisdiction as a power it may exercise, unhindered by Congress, not a power it must exercise. See, e.g., Illinois v. City of Milwaukee, 406 U. S. 91 (1972), 93-94.
The only case where the Court has seen that it has exclusive jurisdiction, that is, no inferior court may touch it, is in cases where both parties are states. In such cases, a special master is usually appointed to provide a hearing on the facts.
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If I am understanding you correctly you are arguing that the Constitution is and should be subordinate to federal statute and case law rather than being the highest law of the land. If that is the case, the Constitution only applies when and where the federal government decides it should. In other words, the Constitution serves to protect the rights of the states and the people only as long as the federal government allows it and those protections can be revoked at any time at the sole discretion of the federal government.
If it was your intention to frighten me by citing case law to prove that this is indeed the current reality, you have succeeded.
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Originalist, you said this so well, that I ask permission to use it. May I quote it and attribute it to “my dear Friend Originalist” (whomever you might be)?
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And M! Thank you for being courteous in your post!
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You have blanket permission to use anything I write. I now however, find myself embarrassed by an editing error in my post. It was my intention to move the word “only” but ended up duplicating it instead. My post should read “the Constitution serves” rather than “the Constitution only serves”. If you would correct my error in your quote I would be most grateful.
PS I am honored to be considered a dear friend.
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check it now! I fixed it!
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A clear and concise statement of the Constitutional principles; principled and challenging!
Thank you!
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Clear and concise, and principled and challenging!
Thank you!
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Let me get this straight. In violation of the Constitution the legislative branch wrote an unconstitutional law giving the executive branch the power to shop its assaults against the power of the states in inferior courts that are now exercising their new found unconstitutional authority to grant even more unconstitutional power to the federal government. The Constitution that was put in place as our protection us against tyranny is failing because the three branches that were are sworn to uphold it are instead conspiring against it. If the federal government prevails in this latest usurpation of power, the open border crisis is going to be the least of our problems. Rather than just having to deal with the flood of people fleeing corrupt and oppressive regimes, we will be well on our way toward living under one.
Thank you for raising the alarm on this issue. Your article is an eye opener for those of us who are only now learning the meaning of the Constitution. I’m very surprised I’ve not seen this issue discussed anywhere else. That has to change. I intend to raise this issue with my congressman who founded the constitutional caucus and with various tea party organizations. It’s time for we the people to start standing up for the Constitution. If we don’t do it I fear nobody is going to do it for us. We can no longer depend on our government to safeguard it for us. To rest the fate of our republic on the whim of a single supreme court justice doesn’t seem to me to be a good plan.
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Publius;
I wish that I had known and learned this before the case went to the District Court. I keep learning more and more from you even though I read the Constitution and Federalist Papers. It`s hard to really understand even after reading them.
I would have made phone calls and emailed all those involved about this.
May I ask you, have you tried to warn Governor Brewer about this?
Thanks for another great lesson Publius.
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Has anyone let the State of Arizona know about this? I would much rather it was heard by the current sitting Supreme Court than the next one. And I have a feeling the SCOTUS would find Sir Golfsalot’s suit to be frivolous…..
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Teresa, dear, you read my mind! THAT is my reason for this whole article! Every day, I pray for the health & safety of our 4 good justices (Clarence Thomas, Alito, Roberts & Scalia), whom I expect would uphold the AZ law as a proper exercise of concurrent jurisdiction [see my paper herein where I explain “concurrent” & “exclusive” jurisdiction]. Anthony Kennedy, the swing vote, has been a bit better recently, so I expect him to side with our 4.
The remaining 4 are crazed loons who will vote to overturn the AZ law.
Every day that obama is in office, I have a squeezing fear in the pit of my stomach for the safety of our 4 – even for Kennedy. If they assassinate one of these, and replace him with evil people like Sotomayor & Kegan, they will get whatever they want out of SCOTUS. And obama will have taken over all 3 branches of the federal government. Then we would have only one remedy remaining. May God be merciful and grant us national repentance in time.
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WOW! I just told my husband this evening that I fear also for our SC Judges. I also fear for their safety. The mentality of those supporting this “regime” is that the ends justifies the means at ANY cost.
I pray for their safety and the restoration of our country to its founding principles.
Thank you for shining the light on this case.
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I run a local newspaper in Carrollton, TX (called The Global Exclaimer) and would like to reprint your article regarding Article III, Sec. 2, clause 2.
Please advise if I may do so, and under what conditions. Also, I want to reference your article on The Glob facebook page http://www.facebook.com/theglobalexclaimer
I did not see any of the “share this” buttons etc., so thought I should ask.
Sincerely,
Mark Connolly
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Dear Mark, So sorry for the delay. Let me know if I can assist in any way.
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That’s ok PH……..keep striking those nerves…I just saw a reference to your article in the Examiner.com out of Memphis. It wouldn’t surprise me that someone has sent this to Gov. Jan Brewer. I know I sent it to some friends in Arizona that work for the Border Patrol and they’ve spread it around as well. God Bless You PH 🙂
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