Article III, Section 2, Clause 1:

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

The federal courts’ authority to hear federal question cases is rooted in both constitutional text and a number of implementing statutes.1 The Constitution authorizes the Federal Judiciary to hear “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” 2 The Supreme Court held in the 1821 case Cohens v. Virginia that a case “arises under” the Constitution or laws of the United States “whenever its correct decision depends on the construction of either,” and that cases arising under federal law include all cases that “grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.” 3

Congress also plays a role in conferring federal question jurisdiction. The Constitution vests federal judicial power in “one supreme Court” and any lower federal courts that Congress creates.4 When Congress creates lower federal courts, it generally also specifies (either then or in a separate statute) what portions of the federal judicial power those courts may exercise.5 In Osborn v. Bank of the United States, decided three years after Cohens, the Court explained that the “arising under” clause in Article III “enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it.” 6 Writing for the Court, Chief Justice John Marshall opined, “when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give the [lower federal courts] jurisdiction of that cause, although other questions of fact or of law may be involved in it.” 7 Thus, although the Constitution grants the Judiciary as a whole the power to adjudicate federal questions, it generally leaves to Congress the authority to confer that jurisdiction on specific federal courts.8

Within that constitutional framework, the current general federal question statute, 28 U.S.C § 1331, grants the federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 9 Additional statutes grant the federal courts jurisdiction over certain specific categories of cases arising under the Constitution and federal law.10 Although the language of Section 1331 is similar to the constitutional text authorizing the grant of federal question jurisdiction, the Supreme Court has held that the statutory grant of jurisdiction in Section 1331 is narrower than the full authority Congress might choose to confer consistent with the constitutional authorization.11 In a 2016 case, the Court explained that it

Because cases that fall within the narrower statutory grant of federal question jurisdiction also fall within the broader constitutional grant, most court cases considering the scope of federal question jurisdiction focus on application of the relevant jurisdictional statute and do not reach constitutional questions.13

In determining whether a case satisfies the general federal question statute, courts ask whether a federal question appears in the plaintiff’s “well-pleaded complaint.” 14 This means that, as a statutory matter, the existence of a federal question depends on the actual claims that the plaintiff raises, and the existence of an actual or potential defense to liability based on federal law is not sufficient to establish federal question jurisdiction.15 This is an example of when statutory federal question jurisdiction is less than the constitutional maximum, which can include cases involving only a federal defense.16

The Supreme Court has explained that most cases subject to arising under jurisdiction “are covered by Justice [Oliver Wendell] Holmes’ statement that a ‘suit arises under the law that creates the cause of action,’” meaning that “the vast majority” of federal question cases raise claims based directly on federal law.17 Less often, a case may arise under the laws of the United States “if a well-pleaded complaint establishe[s] that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.” 18 For instance, in Smith v. Kansas City Title & Trust Co., the Court held that federal question jurisdiction existed in a state law suit by a shareholder claiming that a corporation could not lawfully buy certain federal bonds because the issuance of the bonds was unconstitutional.19

As a matter of both constitutional scope and statutory authority, federal question jurisdiction is not limited to suits originally filed in federal court. Beginning with the enactment Section 25 the Judiciary Act of 1789, Congress has granted the Supreme Court jurisdiction to review decisions of the states’ highest courts when those decisions involve certain issues arising under the Constitution, treaties, or federal law.20 The Supreme Court upheld Section 25 against a constitutional challenge in Martin v. Hunter’s Lessee.21 In addition, as explained in more detail in a later section, if a plaintiff files a case subject to federal court jurisdiction in state court, the defendant may elect to remove the case to federal court.22 Once the federal courts have jurisdiction over a case, they have the authority to decide any issue necessary to the disposition of the case, including questions of law or fact that do not arise under federal law.23

Footnotes

1

This essay focuses on constitutional text and procedural statutes that authorize the federal courts to hear federal question cases. For discussion of the types of substantive legal issues that may give rise to federal question jurisdiction, see ArtIII.S2.C1.11.4 Substantive Claims and Defenses in Federal Question Cases.

2

U.S. Const. art. III, § 2, cl. 1.

3

19 U.S. 264, 379 (1821). Cf. Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 9 (1983) (quoting T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir. 1964)) ( “[A] case may ‘arise under’ a law of the United States if the complaint discloses a need for determining the meaning or application of such a law.” ).

4

U.S. Const. art. III, § 1.

5

See, e.g., Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 364 (1959) (describing “enumerated classes of cases to which ‘judicial power’ was extended by the Constitution and which thereby authorized grants by Congress of ‘judicial Power’ to the ‘inferior’ federal courts” ).

6

22 U.S. 738, 818 (1824).

7

Id. at 823.

8

Cf. U.S. Const. art. III, § 2, cl. 2 (granting the Supreme Court original jurisdiction over “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party” but providing that the Court’s appellate jurisdiction shall be subject to “such Exceptions, and under such Regulations as the Congress shall make” ); see also ArtIII.S2.C2.2 Supreme Court Original Jurisdiction.

9

28 U.S.C. § 1331.

10

See, e.g., 18 U.S.C. § 3231 (granting the federal district courts “original jurisdiction, exclusive of the courts of the States,” over federal criminal proceedings); 28 U.S.C. § 1257 (granting the Supreme Court appellate jurisdiction over “[f]inal judgments or decrees rendered by the highest court of a State” in cases arising under the Constitution or federal laws or treaties); id. § 1334 (granting district courts jurisdiction over bankruptcy cases); id. § 1337 (granting district courts jurisdiction over antitrust cases).

11

See. e.g., Verlinden B. V. v. Cent . Bank of Nigeria, 461 U.S. 480, 495 (1983); Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900).

12

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 374, 385 (2016) (quoting Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 807 (1986); Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 379 (1959)) (alterations in original).

13

See, e.g., Romero, 358 U.S. at 379. Congress first enacted a statute granting the federal courts general federal question jurisdiction in 1875. Act of March 3, 1875, § 1, 18 Stat. 470 (codified at 28 U.S.C. § 1331(a)). The 1875 statute, like the current federal question statute, used language similar to that of the Constitution. Early cases interpreting the statutory language relied heavily on Chief Justice John Marshall’s construction of the constitutional grant of jurisdiction. See, e.g., Pac. R.R. Removal Cases, 115 U.S. 1 (1885). More recent cases have favored a more limited interpretation. See infra notes 14–16 and accompanying text.

14

See, e.g., Franchise Tax Bd., 463 U.S. at 9–10. If the complaint states a case arising under the Constitution or federal law, then federal jurisdiction exists even if the federal claim ultimately fails on the merits. In such a case, the proper course for the court is to dismiss for failure to state a claim on which relief can be granted rather than for lack of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946).

15

Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908) ( “Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff’s original cause of action, arises under the Constitution.” ); see also State of Tennessee v. Union & Planters’ Bank, 152 U.S. 454 (1894).

16

See, e.g., Cohens v. Virginia, 19 U.S. 264, 379 (1821).

17

Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808 (1986) (internal citations omitted).

18

Franchise Tax Bd., 463 U.S. at 13.

19

255 U.S. 180 (1921). By contrast, the Court found no federal question jurisdiction in a case concerning whether the Employment Retirement Income Security Act of 1974 preempted a state law allowing for garnishment of unpaid taxes from an ERISA-covered vacation benefit plan, Franchise Tax Bd., 463 U.S. 1, and in a case where plaintiffs raised state law negligence claims based in part on allegations that a defendant produced a drug that was misbranded in violation of the Federal Food, Drug, and Cosmetic Act, Merrell Dow, 478 U.S. 804.

20

1 Stat. 73, 85; see also 28 U.S.C. § 1257.

21

14 U.S. 304 (1816). See also Cohens v. Virginia, 19 U.S. 264 (1821).

22

See, e.g., 28 U.S.C. § 1441; see also ArtIII.S2.C1.11.5 Removal from State Court to Federal Court.

23

See, e.g., 28 U.S.C. § 1367(a); see also ArtIII.S2.C1.11.6 Supplemental Jurisdiction.