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.

Article III allows federal courts to exercise jurisdiction over controversies “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” 1 However, two post-ratification developments have limited the scope of federal court jurisdiction under this provision. First, the Supreme Court has applied the law of nations to hold that foreign states are generally immune from suit in U.S. federal courts without their consent.2 That immunity extends to suits brought by American states against foreign nations.3 Second, the Court has construed the Eleventh Amendment to bar suits by foreign states against a state of the United States.4

In addition to the foregoing limits, the grants of jurisdiction in Article III, Section 2, Clause 1 are not self-executing. Instead, the constitutional text sets the maximum extent of federal court jurisdiction and leaves Congress discretion to determine how much of that jurisdiction to grant.5 Congress has always granted the federal courts less expansive jurisdiction than the Constitution authorizes, including with respect to cases involving foreign states or citizens. In 28 U.S.C. § 1332, Congress granted federal courts jurisdiction over disputes where “the matter in controversy” exceeds $75,000 between “citizens of a State and citizens or subjects of a foreign state” (except claims between citizens of a state and lawful permanent residents of the same state) or “a foreign state . . . as plaintiff and citizens of a State or of different States.” 6

Article III does not provide for federal court jurisdiction over disputes between one or more foreign states or their subjects to which no U.S. state or citizen is a party. However, suits that fall outside the scope of the constitutional and statutory grants of jurisdiction over suits between a state or its citizens and foreign states or citizens may proceed in federal court if they fall within another grant of Article III jurisdiction, for example because they involve questions arising under a federal law or treaty.7

Footnotes

1

U.S. Const. art. III, § 2, cl. 1.

2

The Schooner Exchange v. McFaddon, 11 U.S. (7 Cr.) 116 (1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938).

3

Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934).

4

Id.

5

This is true of all constitutional grants of federal court jurisdiction except for the limited grant of original jurisdiction to the Supreme Court. Compare ArtIII.S2.C1.11.3 Constitutional and Statutory Grants of Federal Question Jurisdiction with ArtIII.S2.C2.2 Supreme Court Original Jurisdiction; see generally ArtIII.S1.6.1 Overview of the Relationship Between Federal and State Courts.

6

28 U.S.C. §§ 1332(a)(2), 1332(a)(4). Another provision of the statute, 28 U.S.C. § 1332(a)(1), empowers the federal courts to hear “diversity” cases between citizens of different states. See ArtIII.S2.C1.18.1 Overview of Diversity Jurisdiction.

7

Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). The Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94–538, 90 Stat. 2891, provides for jurisdictional over suits by and against foreign states and also appears to comprehend suits by an alien against a foreign state that would be beyond the constitutional grant discussed in this essay. However, the Court has construed the Act as creating a species of federal question jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983).