Congressional Power and State Court Jurisdiction

Abstract:     
Federal laws that regulate state institutions give rise to what the Supreme Court has described as the oldest question of constitutional law. In recent years, the Court has confronted questions of congressional power to regulate state legislatures and executives, but has not directly confronted any question of congressional power to regulate state courts. Since the Founding, questions of congressional power to regulate state court jurisdiction of Article III cases have arisen - most notably, congressional power to assign jurisdiction of federal criminal cases to state courts. Today, significant questions of congressional power to regulate state court jurisdiction over non-Article III cases are arising for the first time in American history. This Article explains the framework within which members of the Founding generation considered questions of congressional power over state court jurisdiction. Rather than claim that there was any consensus on the answers to specific questions of congressional power, it describes the framework within which members of the Founding generation debated these questions. Specifically, they premised arguments about congressional power over state court jurisdiction upon either general law principles of jurisdiction or constitutional provisions asserted to override the general law. To the extent that historical understandings of federal power have animated much of the Court's recent federalism jurisprudence, the framework that this Article describes largely remains workable today with respect to questions of congressional power over state court jurisdiction in both Article III and non-Article III cases. The Article further provides a word of caution about eschewing such a historical analysis in favor of exclusive reliance upon the political safeguards of federalism to protect state sovereignty interests: in the case of congressional regulation of state court jurisdiction, exclusive reliance on the political safeguards is problematic both historically and functionally.

Keywords: federalism, Congress, state courts, tort reform

JEL Classifications: K10, K14

Accepted Paper Series