Is District Court Federal Jurisdiction under 28 USC 1331 Unconstitutional in regard to District Court Exercise of Jurisdiction over the Constitutionality of State Statutes? (Further Evidence that a Little Knowledge can be a Dangerous Thing)


http://www.examiner.com/x-37620-Conservative-Examiner~y2010m7d31-Explosive-new-evidence-shows-ruling-of-AZ-judge-illegal

Oh, with all due respects to our learned Canadian student of jurisprudence at the Conservative Examiner, if only it were that easy, to assert that “no suits against the constitutionality of state statutes in U.S. District Court, only the Supreme Court,” well, if it were THAT easy, things in this country would definitely be different. This is what’s known, I think, as an example of how “a little knowledge is a dangerous thing.”  There are MANY problems with the Arizona lawsuit, which I happened to be studying precisely because I am interested in the “state of the art” of how to litigate against the constitutionality of state statutes, but failure to bring this case in the United States Supreme Court is NOT one of those problems.
28 U.S.C. Section 1331 would seem to be a pretty much irrefutable basis for jurisdiction, unless 28 U.S.C. Section 1331 itself is unconstitutional, and I’m guessing that would be the subject of a separate lawsuit, and to outlaw “Federal Question” jurisdiction in the Federal Courts would probably be deemed frivolous quicker than you can say, “Rule 11.”
So application of Federal Question jurisdiction and the Supremacy Clause seems appropriate.  If not, maybe the State of Arizona should simply be dismissed as a party, and the Arizona A.G. and Governor left in. (Compare “Ex Parte Young“….where the State is immune from suit under the 11th Amendment, State Officers must take responsibility….the 11th Amendment doesn’t cover Federal-State lawsuits, and neither does the 14th, but there have been literally HUNDREDS OF THOUSANDS of lawsuits during MY lifetime alone questioning the constitutionality of various statutes, many millions during Jon Roland’s life (lol!), and I’ve never heard this argument raised before).
So the First Answer is that the Congressional award to the U.S. District Courts of “Federal Question Jurisdiction under 28 USC 1331” has never been seriously questioned before, in the entire history of our government and court system.
The Federal Civil Cover sheet that we have to fill out every time we file a lawsuit has a box I’ve checked at least several times: Under Part IV. “Nature of Suit” (Place an “X” in One Box Only) over at the right hand side there is a category called “Other Statutes” and the very last item entry on that right hand column underneath “400 State Reapportionment”, “410 Antitrust”, “430 Banks and Banking”, “450 Commerce”, “460 Deportation” (hmmmm…. that’s interesting), “470 Racketeer Influenced and Corrupt Organizations” (everyone’s favorite?  If not, it’s mine)….way down at the bottom of the list under “893 Environmental Matters”, “895 Freedom of Information Act”, and “900 Appeal of Fee Determination Under Equal Access to Justice”, is “950 Constitutionality of State Statutes.”  Obviously, somebody in the clerk’s office thinks that U.S. Courts have jurisdiction—in EVERY clerk’s office in EVERY district, that is.
So no, I think the answer is more prosaic: in this case, the State of Arizona is not REALLY a party; no penalties are sought against the state, no fines to be imposed, no diminution in the state boundaries.  (Seems as though every few years there are boundary disputes under the Original Jurisdiction of the Supreme Court between California and Arizona over the Colorado River or some change in the course of the Mississippi or Ohio).
Under Rule 5.1 of the Federal Rules of Civil Procedure, a State Attorney General (and/or Governor) are entitled to NOTICE of a lawsuit involving the Constitutionality of a state statute, if they are not named as parties.
That’s the second answer—and it is somewhat surprising that the attorneys for Arizona have not asked for the State to be dismissed as a party.”
“Prospective relief is always relief, even against parties otherwise immune from suit” would be the third answer.
When I first saw this article, I almost cried because it seems like, my whole life all I have seen is one after another state statutes being stricken down and replaced by forceful fiat and Federal welfare-related coercion and “revenue sharing” bribery into “from the top” conformity with Federal Law, so that there really is no such thing as independent state law anywhere, anymore, except for a few weak protests in Montana, Arizona, and a few other Western states (including California’s and other Pacific States’ stand on Medical Marijuana).  I grew up in a combined DAR-SCV-UDC family where the 10th Amendment was a frequent and well-known topic of dinnertime conversation, and if it had been possible to wipe out the Warren Court’s programmatic intrusion into reshaping state law by such a simple expedient, it would have been done back then, because Old Fashioned Southerners pretty much limited their reading to the Holy Bible, Shakespeare, Milton, and the Constitution (with a very few forays into Charles Dickens, Victor Hugo, or other such “radicals”).
As an aside, it is one of the ironies of Federal “top down” uniformity that the judiciary and police remain protected, up to a point, by a certain perverted doctrine of “states rights” which permits the judiciary and police to advance Federal programs even faster than state legislatures are willing or can be paid to do…….
The basic premise of the argument is specious: the mere mention of a state in a case regarding the Constitutionality of a state statute under the national charter has never invalidated lower court jurisdiction, even before the adoption of the 11th Amendment in the case ofChisolm v. Georgia (1793)(which was a state action or inaction case, default on a contract, rather than a statutory review case) or after the adoption of the 11th Amendment in McCulloch v. Maryland (1819) which was clearly focused on a state statutory scheme to tax the Bank of the United States.  My favorite quote from John Marshall’s opinion in McCulloch has always been “the power to tax is the power to destroy.”  Sorry!  But if it didn’t occur to the Supreme Court in either 1793 nor 1819, when signatories to the Constitution of 1787 were still alive and quite active, Article III, Section 2, Clause 2 almost certainly, beyond any reasonable doubt, cannot be used to invalidate lower court jurisdiction over constitutional challenges to state statutes. (FWIW, which is perhaps not much, Australia’s Federal Courts followed McCulloch at the inception of the Australian Federal form of government, in one of the earliest constitutional cases to reach the Australian Supreme Court).
History is a pain; historical fact and experience all too often, like gravity, really “gets us down and keeps us down”, when we’d all rather be flying……
From my perspective, there are much more recent historical cases when the doctrine of exclusive jurisdiction in the U.S. Supreme Court WOULD have been raised if it COULD have been raised……
I imagine that we all have our own special litigation heroes in this group.  One of my special heroes is John W. Davis of West Virginia, the 14th United States Solicitor General and the 6th United States Ambassador to the United Kingdom, who argued over 140 cases before the United States Supreme Court, including one of the most stunning judicial rebukes ever delivered to a sitting President of the United States (prior to Nixon in relation to Watergate, anyhow) namely: Youngstown Sheet & Tube Co., v. Sawyer in May of 1952.
Representing the Steel industry, and protesting President Truman’s seizure of the nation’s steel plants, Davis stated that “Truman’s acts were an usurpation of power without parallel in American history.”  In a 93 minute oration worthy of Marcus Tullius Cicero, Davis was asked only one question by the justices—this may have been the last such uninterrupted oral argument in U.S. history.  I have cited Youngstown repeatedly over the past two years as the forgotten precedent for overturning 100% of Obama’s socialistic seizures and interventions in national industries from finance to automobiles to real estate
Two years after winning Youngstown, we can be fairly certain that if the defense existed, which our Canadian colleague suggests, John W. Davis would surely have raised the simple and straightforward Article III, Section 2, Clause 2 objection to the mass of cases he faced again in the U.S. Supreme Court in 1953-54.  Obviously, NAACP lawyer Thurgood Marshall knew all about Ex Parte Young and knew that it was better not actually to NAME the states as defendants when attacking the constitutionality either of state action or state statutes.
Indeed, if John W. Davis did not raise this jurisdiction defense when arguing on behalf of the State of South Carolina against integration in Brown v. Board of Education’s basically forgotten companion case Briggs v. Elliot, and if neither 1922 Harvard Law graduate Senator Sam Ervin of North Carolina, effective chairman of the Southern Resistance’ “Brain Trust” of distinguished constitutional lawyers, nor any other Senator or Congressman in the signing the “Southern Manifesto” of 1956 ever raised that objection to the Warren Court’s program in the Senate, I think it is safe to say that the objection is a hopeless one to raise now.  There was never a stronger constitutionalist and “States Rights” movement in the 20th century than Senators Harry F. Byrd, Price Daniel, Sam Ervin, Walter George, John Stennis, Strom Thurmond, and all the rest of the Southern intelligensia who joined together in that fight, even so politically incorrect as their position now seems to most.  These Senators were not unthinking racist bigots (one of John W. Davis’ earlier Supreme Court cases invalidated the Oklahoma “Grandfather Clause” which had all but disenfranchised all Oklahoma blacks, most of whom had the unusual distinction of being the last slaves legally held in the United States, in that it was not initially clearly established that the 13th Amendment applied to the “removed” Southern Five Civilized Tribes who by 1865 were all living in Oklahoma, with their slaves.
Rather, men like Texas’ Price Daniel, North Carolina’s Sam Ervin and John W. Davis were all  constitutional civil libertarians who opposed the break down of privacy and civil rights which “liberals” like Kennedy and Johnson pushed for—Ervin was particularly famous for his opposition to “No Knock” police break-ins during the 1960s and ’70s.
If these genuine “giants among men” who “didn’t like what Earl Warren did to the Constitution” couldn’t find such a simple objection to the litigation that swept the Old South out of existence, it seems unlikely that Arizona will have an easy time objecting to anything other than the inclusion of its name as a party to the Government’s suit.

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