Abstract: Constitutional litigation is increasingly being waged between governments, in both suits between a state and the United States, and suits between two or more states. The jurisdiction of the Federal courts to hear such suits, however, is disputed. The Supreme Court’s cases are famously difficult to reconcile, with some denying jurisdiction and other seemingly identical cases addressing the merits without discussing jurisdiction. Some scholars have argued that intergovernmental disputes over political jurisdiction historically are not justiciable and that it is constitutionally illegitimate for the Court to hear them. Recently, some scholars have argued that the Court should hear such cases, but have assumed their historical illegitimacy and have instead argued normatively that the realities of our modern system weigh in favor of updated justiciability standards. This Article analyzes the constitutional history of what it calls “intergovernmental federalism disputes.” It argues that the Constitution grants federal courts power to hear certain intergovernmental controversies regarding the line dividing their respective regulatory jurisdictions. This power, however, was not historically a common-law or equity court power. In the colonial system, it was a power exercised exclusively by the King’s Privy Council, and then by Congress in the Confederation Period. Early drafts of the Constitution granted this power to the Senate, before ultimately granting it to the Supreme Court. This Article argues that it is thus historically legitimate for federal courts to hear such controversies, so long as they adhere to the historical model of claims that a governing entity has exclusive jurisdiction to regulate a particular territory, person, activity, or object. This historical theory also helps to explain the Supreme Court’s previously irreconcilable cases.
Publication Year: 2019
Publication Date: 2019-03-13
Language: en
Type: article
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