Oh, with all due respects to our Canadian student of jurisprudence (quoted herein below from the Canadian Free Press and “Publius Huldah”): if only it were that easy, “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. United States v. Arizona (Complaint re: State Immigration Law)
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. See also: Civil Cover Sheet United States v. Arizona
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 I grew up in a combined DAR-SCV-UDC family where the 10th Amendment was a frequent and well-known topic of dinnertime conversation).
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 of Chisolm 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 this case was “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.
History is a pain, it often, like gravity, really “gets us down and keeps us down”, when we’d 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 Harvard Law graduate Senator Sam Ervin of North Carolina nor any other Senator or Congressman in 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 who joined together in that fight. They were not unthinking racist bigots, but 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 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.
Charles E. Lincoln, III Tierra Limpia Tel: 512.968.2500
Deo Vindice “God be with you,and with thy spirit!”
Von: Jon Roland <email@example.com> An: Liberty-List@yahoogroups.com Gesendet: Samstag, den 31. Juli 2010, 23:39:38 Uhr Betreff: Fw: Judge Susan Bolton has no jurisdiction in ruling on AZ Law
In a stunning development that could potentially send the nation into a Constitutional crisis, an astute attorney who is well-versed in Constitutional law states that the ruling against the state of Arizona by Judge Susan Bolton concerning its new immigration law is illegal.
The attorney in question submitted her assertion in a special article in the Canada Free Press. Her argument states in part,
“Does anyone read the U.S. Constitution these days? American lawyers don’t read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.
“Article III, Sec. 2, clause 2 says:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction.”
In other words, the Judge in the Arizona case has absolutely no Constitutional jurisdiction over the matter upon which she ruled. As the Constitution makes abundantly clear, only the U.S. Supreme Court can issue rulings that involve a state.
This means that neither Judge Bolton nor the 9th Circuit Court of Appeals in San Francisco , to which the case is being appealed, have any legal standing whatsoever to rule on the issue.
Thus, U.S. Attorney-General Eric Holder filed the federal government’s lawsuit against the state of Arizona in a court that has no authority to hear the case.
The attorney whose heads-up thinking concerning the Constitution provides the legal remedy for dealing with this blatant disregard for Constitutional law in the article at Canada Free Press, which can be accessed at the link above.
In a related development, another explosive discovery was made by those who actually take the Constitution seriously. The Constitution specifically allows an individual state to wage war against a neighboring country in the event of an invasion, should there be a dangerous delay or inaction on the part of the federal government. This information was cited by United Patriots of America.
From Article I, Section 10 of the U.S. Constitution, we find these words: “No State shall, without the Consent of Congress, engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
No one who is actually familiar with the crisis at the southern border can deny that Arizona is endangered by the relentless assault of lawless Mexican invaders who ignore our laws, inundate our schools and medical facilities with unpaid bills, and even endanger the very lives of citizens with criminal drug cartels that engage in kidnapping, murder, human trafficking, and other mayhem, including aiming missile and grenade launchers directly at U.S. border cities from just across the Mexican border.
This is every bit as much of an invasion as the nation of Iran sending in a fleet of warships to the Port of Charleston.
The Constitution that forms the basis of the rule of law in this country says that Arizona has legal right to protect itself in the case of inaction or delay on the part of the federal government, including waging war in its self-defense.
This, when coupled with the clear Constitutional mandate that only the Supreme Court hear cases involving the states, should be ample legal basis for attorneys representing Arizona to go after the federal government with a vengeance.
Governor Jan Brewer and the stalwart members of the Arizona legislature have ample legal reason to stand firm against the illegal bullying of an arrogant, lawless federal government.
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The Complete Canadian Free Press Article follows:
Case Against Arizona & Governor Brewer
ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial
By Publius Huldah Thursday, July 29, 2010
Does anyone read the U.S. Constitution these days? American lawyers don’t read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.
Article III, Sec. 2, clause 2 says:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…
“Original” jurisdiction means the power to conduct the “trial” of the case (as opposed to hearing an appeal from the judgment of a lower court). You all know quite well what a “trial” is – you see them all the time on TV shows: Perry Mason, Boston Legal, The Good Wife, etc. Witnesses testify and are cross-examined, etc.
The style of the Arizona case shows quite clearly that the named defendants are:
State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants.
Judge Susan R. Bolton has no more authority to preside over this case than do you
See where it says, “State of Arizona”? And “Janice K. Brewer, Governor of the State of Arizona, in her official Capacity”? THAT (plus Art. III, Sec. 2, clause 2) is what gives the US Supreme Court “original Jurisdiction”, i.e., jurisdiction to conduct the trial of this case. THAT is what strips the federal district court of any jurisdiction whatsoever to hear this case. Judge Susan R. Bolton has no more authority to preside over this case than do you (unless you are a US Supreme Court justice).
In Federalist No. 81 (13th para), Alexander Hamilton commented on this exact provision of Art. III, Sec. 2, clause 2:
…Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal….[boldface added, caps in original]
Yet Attorney General Eric Holder filed the case in a court which is specifically stripped of jurisdiction to hear it!
So! Counsel for the State of Arizona should consider:
1. File a Petition for Removal before federal district court Judge Susan R. Bolton demanding that the case be removed to the Supreme Court on the ground that under Art. III, Sec. 2, clause 2, US Constitution, only the Supreme Court has jurisdiction to conduct the trial of this case.
2. If Judge Bolton denies the Petition for Removal, file a Petition for Writ of Mandamus in the Supreme Court asking that court to order Judge Bolton to transfer the case to the Supreme Court.
A Petition for Writ of Mandamus is an old common-law “extraordinary writ”: It asks a court to ORDER a lower court or other public official to something which it is its duty to do. In Kerr v. US District Court for Northern District of California (1976), the Supreme Court said, respecting the propriety of issuing writs of mandamus:
….the fact still remains that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.”…(para 13)
When a federal district court judge presides over a case which the Constitution specifically prohibits her from hearing, and even issues a ruling enjoining the enforcement of a State Law, then that federal district court judge usurps power. She is specifically stripped – by Art. III, Sec. 2, clause 2 – of jurisdiction to preside over the case against the STATE of Arizona and against THE GOVERNOR of the STATE of Arizona.
For procedures for filing the Petition for Writ of Mandamus, see Supreme Court Rule 20.
Article IV, Sec. 4, requires the federal government to protect each of the States against invasion.Not only is the Obama regime refusing to perform this specific Constitutional duty – it seeks to prohibit the Sovereign STATE of Arizona from defending itself! This lawlessness on the part of the Obama regime is unmatched in the history of Our Country.
OK, counselors – Go for it! PH
Publius Huldah Most recent columns
Publius Huldah is a retired lawyer who lives in Tennessee USA. She writes on the U.S. Constitution and posts her papers at publiushuldah.wordpress.com Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge). Using primarily The Federalist Papers, which were written during 1787-1788 by Alexander Hamilton, James Madison & John Jay, in order to explain the proposed Constitution to the American People and induce them to ratify it, Publius Huldah explains the true & original meaning of the U.S. Constitution. She also shows how modern day judges on the U.S. federal courts have completely abandoned the U.S. Constitution and have substituted their own personal views and opinions for The Constitution.
Publius can be reached at: Publiushuldah@twlakes.net