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 Constitution’s grant of federal question jurisdiction over cases “arising under” the Constitution, laws, and treaties of the United States extends to some cases filed in state court. Congress has provided that a state court defendant may remove a case to federal court if the case could originally have been brought in federal court.1 The current general removal statute is codified at 28 U.S.C. § 1441, and additional statutes authorize removal in specific circumstances.2

In Martin v. Hunter’s Lessee, the Supreme Court likened removal before trial to federal appellate review of state court judgments, asserting that both served the purposes of promoting fairness and ensuring the uniform interpretation of federal law.3 Decades later, in Chicago & N.W. Railway v. Whitton’s Administrator, the Court upheld a removal statute against a constitutional challenge.4 The Court expressed “doubt” as to whether removal before trial “can properly be called an exercise of appellate jurisdiction,” stating that removal might “more properly be regarded as an indirect mode by which the Federal court acquires original jurisdiction of the causes.” 5 However, noting that both state and federal courts had frequently recognized the constitutionality of removal statutes, the Court concluded that, except where the Constitution expressly specifies original or appellate jurisdiction, Congress has discretion to legislate “the manner and conditions upon which [the federal judicial power] shall be exercised.” 6

In Tennessee v. Davis, the Court considered the constitutionality of a statute that allowed removal to federal court of state court civil or criminal proceedings against any federal revenue officer “on account of any act done under color of his office or of any [federal revenue] law.” 7 The Court explained that federal court jurisdiction over such cases implicated the federal government’s fundamental interest in “preserving its own existence,” preventing states from undermining federal policies by prosecuting federal agents.8 The Court stated, “Cases arising under the laws of the United States are such as grow out of the legislation of Congress, [whether] they constitute th[e] right or privilege, or claim or protection, or defence of the party, in whole or in part.” 9 It held that the Constitution’s grant of federal question jurisdiction extended to the protection of federal agents performing their official duties, and that the removal statute was a valid grant of federal question jurisdiction under the Necessary and Proper Clause.10

The modern analog to the federal officer removal statute at issue in Davis is codified in 28 U.S.C. § 1442.11 The Supreme Court has construed that statute broadly to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.12 The Court has interpreted other removal statutes, such as the civil rights removal statute, more narrowly.13

Footnotes

1

28 U.S.C. § 1441. The removal statute applies not only to federal question cases but also to cases where the federal courts possess diversity jurisdiction because the parties are from different states. For discussion of diversity jurisdiction, see ArtIII.S2.C1.16.1 Overview of Diversity Jurisdiction to ArtIII.S2.C1.16.7 Conflicts-of-Law and Procedural Rules in Diversity Cases; ArtIII.S2.C1.18.1 Controversies Between a State or its Citizens and Foreign States or Citizens to ArtIII.S2.C1.17 Land Grants by Different States.

2

See 28 U.S.C. § 1442 (suits or prosecutions against federal officers and agencies); id. § 1442a suits or prosecutions against members of the armed forces); id. § 1443 (civil rights cases); id. § 1444 (foreclosure actions against the United States); id. § 1452 (claims related to bankruptcy cases); id. § 1453 (class actions); id. § 1454 (patent, plant variety protection, and copyright cases).

3

14 U.S. 304, 347–51 (1816). In upholding a statute that allowed the Supreme Court to review state court judgments, the Court explained, “The constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power . . . was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, before the same forum. [If] the plaintiff may always elect the state court, the defendant may be deprived of all the security which the constitution intended in aid of his rights. Such a state of things can, in no respect, be considered as giving equal rights.” Id. at 348–49.

4

80 U.S. 270 (1872). This case arose under state law, and removal was based on diversity of citizenship. See ArtIII.S2.C1.16.1 Overview of Diversity Jurisdiction to ArtIII.S2.C1.16.7 Conflicts-of-Law and Procedural Rules in Diversity Cases; ArtIII.S2.C1.18.1 Controversies Between a State or its Citizens and Foreign States or Citizens to ArtIII.S2.C1.17 Land Grants by Different States.

5

Id. at 287.

6

Id. at 288–89; see also The Moses Taylor, 71 U.S. 411, 429–430 (1867); Mayor and Aldermen of City of Nashville v. Cooper, 73 U.S. 247, 251–54 (1868).

7

100 U.S. 257, 261 (1880). The case involved a state prosecution of a federal internal revenue agent who had killed a man while seeking to seize an illicit distilling apparatus and claimed that he had acted in self-defense. See id. at 260.

8

Id. at 262.

9

Id. at 264.

10

Id. at 263–71.

11

28 U.S.C. § 1442(a)(1) (authorizing removal of any “civil action or criminal prosecution that is commenced in a State court and that is against or directed to . . . [t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue” ).

12

Willingham v. Morgan, 395 U.S. 402, 406–07 (1969); see also Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer or agency must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). In 1991, the Supreme Court held that a federal agency was not permitted to remove a case under the statute’s plain meaning. Int’l Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991). Congress amended the statute in 1996 to specify that actions against agencies were removable. Pub. L. 104-317, § 206(a)(1).

13

See, e.g., Johnson v. Mississippi, 421 U.S. 213 (1975) (to warrant removal under 28 U.S.C. § 1443(1), it must appear that (1) “the right allegedly denied the removal petitioner arises under a federal law ‘providing for specific civil rights stated in terms of racial equality’” and (2) “the removal petitioner is denied or cannot enforce the specified federal rights in the courts of (the) State.” ) (quoting Georgia v. Rachel, 384 U.S. 780, 792, 808 (1966)) (additional quotes removed); see also; City of Greenwood v. Peacock, 384 U.S. 808 (1966).