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VI. ARISING UNDER JURISDICTION
???????? The Constitution's Meaning of "Arising Under Jurisdiction" THE "FEDERAL INGREDIENT" TEST. As a constitutional matter, Congress can confer federal jurisdiction over any case or controversy that might call for the application of federal law (Osborn; Verlinden B.V.). For example, because the Bank of the United States was a creature of federal law, Osborn held that any action involving the Bank could be subject to federal jurisdiction, given that any action might ultimately require inquiry into the meaning of the Bank's charter. The Osborn principle has also been applied to sustain federal jurisdiction over other federallyempowered parties, including federallychartered railroads (Pacific Railroad Removal Cases) and bankruptcy trustees (Schumacher). In Verlinden B.V., the Court unanimously upheld Congress's provision of jurisdiction over "any nonjury civil action against a foreign state as to any claim with respect to which the foreign state is not entitled to immunity," reasoning that every case arising under this statute would present a threshold question of federal substantive law: whether the foreign sovereign could invoke federal foreignsovereignimmunity law. PROTECTIVE JURISDICTION. Protective jurisdiction is the theory that "in any case for which Congress has the constitutional power to prescribe federal rules of decisions and thus to confer "true" federal jurisdiction, it may, without so doing, enact a jurisdictional statute, which will provide a federal forum for the application of state law." It thus relies on a greaterincludesthelesser argument. On this theory, a case involving protective jurisdiction arises under a federal law: in this case, the federal jurisdictional statute. It might be objected that such an interpretation of Article III's grant of arising jurisdiction might "destroy all limitations on federal jurisdiction," this is true only with respect to restrictions that are internal to Article III. Clearly, there are certain jurisdictional statutes that Congress could not constitutionally enact (because not authorized by Article I), and in these cases, it would be unconstitutional for federal courts to exercise arising under jurisdiction. A rejection of this theory of protective jurisdiction might be said to conflict with Osborn's statement that the federal judicial power must be coextensive with the federal legislative power, 1 because it would suggest that there are jurisdictional statutes that Congress can constitutionally enact (without exceeding its Article I authority) but which federal courts cannot constitutionally act upon (because no federal substantive question is presented). In Lincoln Mills, Justice Burton (joined by Justice Harlan) argued that the constitutionality of the TaftHartley Act---which authorized federal jurisdiction over actions for violation of labormanagement contracts---could be sustained as an exercise of "protective jurisdiction." Justice Frankfurter emphatically rejected the theory of protective jurisdiction. He argued that recognition of protective jurisdiction would vastly expand the permissible scope of federal jurisdiction, such that any case affecting commerce might be transferred to federal court without requiring Congress to promulgate any substantive law. Moreover, he believed that the Constitution's provision for diversity jurisdiction "exhausted" the Framer's intention to remedy the supposed inadequacy of state tribunals in determining state law. 2
1 This principle has broken down somewhat in the context of federal regulation of States, as the result of the Court's interpretation of the Eleventh Amendment. Congress can require States to pay minimum wage, for example, but the Judiciary cannot entertain suits against the States to enforce this substantive law (Hans).
2 The obvious counterargument is that the Framers merely addressed one area where state court bias was of particular concern, while leaving the task of dealing with other examples of state court bias to Congress.
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