In the previous post, I talked a bit about the power of Congress to limit the jurisdiction of the federal courts to something less than the full “judicial power” authorized by the Constitution. One perspective, Justice Story’s, was that the text of the Constitution says that the judicial power of the United States shall extend to a certain set of cases, and shall be vested in the federal courts, and this language is mandatory. (Akhil Reed Amar parses Article III a little more closely and says that the judicial power must be vested in federal courts at least where the Constitution uses the word “all,” as in, “all cases . . . arising under this Constitution [or] the laws of the United States,” but perhaps not where the Constitution doesn’t say “all,” as in, “shall extend . . . to controversies to which the United States shall be a party.”)
The argument, with regard to constitutional law and federal law questions especially, is that if there are no federal courts with jurisdiction to hear these questions, perhaps they simply won’t be heard. But of course, there is another (large) set of courts authorized to hear constitutional and federal claims, and, indeed, they are the courts that usually hear these claims first: the state courts. Why can’t our state judges — who, after all, are frequently elected and therefore presumably more accountable to the people — act as the final guardians of our constitutional rights. However, there is some concern that, where the political or philosophical bent of a given state is starkly different from that of the federal government, perhaps the state courts will diminish the power of federal law, either by deciding questions solely on state law grounds, or by openly misinterpreting federal law.
Imagine, for example, that Congress decides to eliminate all federal court jurisdiction over Second Amendment cases. Now imagine that a gun case comes before a state judge in San Francisco who is quite hostile to Second Amendment claims. Although the Supreme Court’s finding of an individual right to bear arms in Heller and McDonald would still, technically, be the supreme law of the land, the state court could ignore or openly flout those holdings and deny a Second Amendment claim. If the state’s supreme court didn’t invalidate the lower court’s ruling (and, with no U.S. Supreme Court to overrule it, maybe it wouldn’t!), the federal claim would have been rejected, but with no avenue for appeal to an Article III judge.
Of course, in theory the Constitution demands that state courts yield to federal law, especially federal constitutional law. In practice, if there were no federal court with the power to overrule their decisions, I suspect they might play a bit fast and loose with that requirement. But even if we give state court judges the benefit of the doubt on that score, it does seem clear that there are many places where it’s not completely clear whether federal or state law should apply. If state courts routinely applied state law and did not address questions of federal law, federal claims would lose much of their force, and, again, there would be no appeal to a federal court. And on the other hand, if they do routinely pass on federal questions, with no recourse to federal courts, do we worry that we will end up with 50 different versions of the Constitution or federal statutes?
Moreover, some legal claims rest solely on federal law, with no state law mixed in. May state courts refuse to hear federal claims? The state courts are generally free to set their own procedural rules and rule on their own jurisdiction, subject to the laws passed by the state legislatures, but not generally subject to Congress’s oversight. Can a state supreme court decide, for example, that its inferior courts will not hear certain cases based on federal law?
In Testa v. Katt, the U.S. Supreme Court decided it couldn’t. The plaintiff brought a suit against the defendant in a Rhode Island trial court, based on the Emergency Price Control Act. The trial court found for the plaintiff and awarded treble damages under a remedies section of the Act. The Rhode Island Supreme Court decided that the section in question was a “penal statute in the public international sense,” and that Rhode Island state courts were not obliged to give effect to the “penal statutes” of other sovereigns.
If you don’t know what that’s supposed to mean, you’re not alone. Justice Black, writing for the U.S. Supreme Court, said that
For the purposes of this case, we assume, without deciding, that § 205(e) is a penal statute in the “public international,” “private international,” or any other sense. So far as the question of whether the Rhode Island courts properly declined to try this action, it makes no difference into which of these categories the Rhode Island court chose to place the statute which Congress has passed. For we cannot accept the basic premise on which the Rhode Island Supreme Court held that it has no more obligation to enforce a valid penal law of the United States than it has to enforce a penal law of another state or a foreign country. Such a broad assumption flies in the face of the fact that the States of the Union constitute a nation.
That makes intuitive sense, and is good as far as it goes. Then Justice Black proceeded to find a constitutional hook for this intuition in the Supremacy Clause, which reads:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
But what does that mean, exactly? The Supremacy Clause is usually understood to mean that when there is a conflict between state law and federal law, federal law must win out. For example, if under state law, the police may search your home without a warrant or exigent circumstances, the federal law surrounding search and seizure would pre-empt that state law, and the state police would still be required to get a warrant from a neutral magistrate before conducting a search of your home. If they didn’t, federal constitutional law would require the exclusion of any evidence found from a criminal trial against you. It’s not immediately clear that this principle of federal supremacy over state law should mean that state courts must hear federal claims. But Justice Black, quoting an earlier case, noted that
“The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the state are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the states, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the state.” Mondou v. New York, N.H. & H. R. Co., supra, at 223 U. S. 57.
So here, the fact that Rhode Island has an established policy against enforcement by its courts of statutes of other states and the United States which it deems penal cannot be accepted as a “valid excuse.”
This very strong reading of the Supremacy Clause — that the policy of Congress is so much “the policy of Connecticut” (or Rhode Island) that the state’s own judiciary machinery must enforce it — is not entirely visible in the Clause’s actual text, but the Court has interpreted it that way, and perhaps not wrongly so. Recall that previously we worried about Congress using jurisdictional limitations as a way of actually deciding the outcomes of cases, and that the Court disallowed that use of Congress’s power over federal court jurisdiction. But if Congress may not use jurisdiction to direct the outcomes of cases on the federal level, why should the state government — whether its legislature or its high court — be able to do the same with cases turning on federal law at the state level?
(Note that this does not mean that state courts may never refuse to hear a federal claim. If the state’s procedural rules are neutral with regard to whether the claim is state or federal, but simply happen to exclude some federal claims, that does not offend the Supremacy Clause. But the state can’t use procedural rules or jurisdictional rules as a means of defeating the objectives of federal law. See Felder v. Casey, Haywood v. Drown.)
On the other hand, what if a state court wants to hear a federal case? Supremacy, at times, actually removes cases from the state dockets. For example, in Tennessee v. Davis, the Court found constitutional a federal statute allowing removal of criminal cases from the state courts to the federal courts, where the defendant was an officer of the United States and his defense in the case relied on federal authorization for his actions. (In Davis defendant was a revenue officer authorized to seize illegal stills. After he shot a moonshiner who fired upon him in the course of one such seizure, he was arrested and placed on trial for murder. His defense, naturally, was that he fired in self-defense and was authorized to be on the victim’s property by federal law. If this sounds like an episode of Justified to you, you are not wrong.)
And in Tarble’s Case, the Court found that state courts could not issue a writ of habeas corpus where the person in custody was held by an officer of the United States. (Tarble was an underage lad who had, in a moment of youthful foolishness, illegally enlisted in the Army. His father had applied for the writ in state court to get him discharged.) The opinion seemed to rest in part on the notion that the federal government’s power over the military was plenary and absolute, but much more generally on the idea that the state and federal government were “separate sovereignties” that should not interfere in each other’s spheres:
It is evident . . . if the power asserted by that state court existed, no offense against the laws of the United States could be punished by their own tribunals without the permission and according to the judgment of the courts of the state in which the parties happen to be imprisoned . . . .
Of course, the federal courts may grant writs of habeas for state prisoners, which suggests that the “separate sovereignties” idea is limited in scope and may, at times, collapse into the supremacy concept.
Finally, when Congress passes a law creating a federal legal right, under what circumstances should we assume that Congress intended that only federal courts should hear claims based on that statutory right? That is, when may state courts not hear a federal claim?
The general rule is that, because state courts are courts of general jurisdiction, and because (per Testa v. Katt) federal law literally is state law, state courts may hear federal claims UNLESS:
- Congress explicitly removes state jurisdiction in the statute.
- Congress’s intent to remove state jurisdiction is unmistakably implied in the legislative history.
- State court jurisdiction would be clearly incompatible with the federal scheme being created.
This test is from Gulf Offshore Co. v. Mobil Oil Corp. (1981) and Tafflin v. Levitt (1990). A concurrence in Tafflin by Justice Scalia suggested that the second prong, implication in the legislative history, might not be a valid basis of statutory interpretation, and that the third prong should be read somewhat narrowly, as covering only situations where there is some textual suggestion of exclusive federal jurisdiction and “state-court jurisdiction would plainly disrupt the statutory scheme.” Scalia suggested, somewhat strangely, that since these three prongs had not been met in either Gulf Offshore or Tafflin, the test was still “dictum” and not binding on the Court. But, for now, that’s the test we have.