Article I, article III, and the limits of enumeration

Michigan Law Review

Volumn 108, Issue 8, 2010, Pages 1389-1452

  Seinfeld, Gil ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 77954429431     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (289)

1. Most of the powers explicitly conferred on Congress in the text of the Constitution are specified in Article I, Section 8. Congressional powers are enumerated elsewhere in the document as well. For ease of exposition, when referring to Congress's enumerated powers, I will often refer to Congress's "Article I powers," or to the "Article I enumeration."
2. See infra notes 18-19, 53.
3. U.S. Const. art. III, § 2.
4. Although Article III defines the scope and nature of federal judicial power, it bears emphasis that Congress is the direct object of the enumeration-based limits in Article III, Section 2. This is so because the power conferred through that section is not self-executing, see, e.g., 13E Charles Alan Wright et al., Federal Practice and Procedure § 3601 (3d ed. 2009), and so, when the Constitution says that "[t]he judicial Power shall extend" to the specified set of cases, what it means is "Congress may, if it sees fit, extend the judicial power of the United States to the enu-merated cases." But see Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985) (arguing that the Constitution requires the establishment of federal jurisdiction, either original or appellate, in federal question, admiralty, and ambassador cases).
5. The decisions in Mesa v. California, 489 U.S. 121 (1989), and Hodgson v. Bowerbank, 9 U.S. (5 Cranch.) 303 (1809), come closest to supplying examples of judicial enforcement of the Article III enumeration. In both cases, the Court embraced narrowing constructions of jurisdictional statutes in order to avoid potential Article III difficulties. I discuss these cases in detail in Parts II and III. See infra nn. 89, 201. The Court has, of course, quite famously deemed a statute unconstitutional on the ground that it runs afoul of Article III, Section 2, Clause 2, which specifies the scope of the Supreme Court's original jurisdiction. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). But Marbury does not represent an example of judicial enforcement of the enumeration in the first clause of Article III, Section 2. The Court has also, more recently, enforced the "case or controversy" requirement of Article III, Section 2 with vigor, see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 571-78 (1992), but of course, this too is distinct from striking down a congressional enactment on the ground that it extends the subject matter jurisdiction of the federal courts to cases falling outside the nine categories enumerated in Article III, Section 2. The asymmetry in the Court's treatment of the "case or controversy" requirement of Article III and the enumeration-based limits implicit in Article III, Section 2 raises the obvious question whether there is reason that one limit should be enforced but not the other. I address this question in detail in Part III. From time to time in this Article, I will refer to "Article III limits" on federal judicial power or "the limits contained in Article III, Sec-tion 2." When I do, I mean only those limits implicit in the enumeration of these nine categories of cases; I do not mean to include the Article III questions raised by Marbury or the case or contro-versy requirement.
6. 337 U.S. 582 (1949) (plurality opinion).
7. Id. at 600 ("[W]here Congress in the exercise of its powers under Art. I finds it necessary to provide those on whom its power is exerted with access to some kind of court or tribunal for determination of controversies that are within the traditional concept of the justiciable, it may open the regular federal courts to them regardless of lack of diversity of citizenship.").
8. Id. at 604 (Rutledge, J., concurring); id. at 626 (Vinson, C.J., dissenting); id. at 646 (Frankfurter, J., dissenting).
9. Academic commentators have developed jurisdictional theories (generally traveling under the heading "protective jurisdiction") that are cousins of the Jackson model. But these theorists all disclaim Justice Jackson's approach, and their conceptions of federal judicial power have likewise failed to uproot the conventional wisdom relating to the enumeration in Article III. I discuss protective jurisdiction in detail in Part IV.
10. The link between Articles I and III has received almost no attention in the academic literature. The point is flagged, but not explored, in Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1, 21 (1957).
11. My analysis here is restricted to an account of the enumerations in Articles I and III. Of course, Article II, Section 2 of the Constitution enumerates the powers of the federal executive. The constitutionally permissible scope of federal executive power has long been the subject of heated debate, and the debate has run particularly hot in recent years. See, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 Harv. L. Rev. 941 (2008); David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008); Symposium, The Role of the President in the Twenty-First Century, 88 B.U. L. Rev. 321 (2008). Some of this debate focuses on the question whether the full sweep of executive powers, however defined, can be fit within the enumeration in Article II, Section 2. I leave the Article II enumeration to one side in the interest of brevity and because, in at least one important way, Article I, Section 8 and Article III, Section 2 are particularly appropriate for comparative analysis. Specifically, both enumerate congressional powers. See supra note 4; infra text accompanying notes 196-197.
12. See, e.g., John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2063 (2009) (explaining that "the idea . . . that the Constitution adopts a system of limited and enumerated powers" is "apparent from the text of Article I, Section 8").
13. Bruce Ackerman, 1 We the People: Foundations 103 (1991).
14. 17 U.S. (4 Wheat.) 316, 405 (1819).
15. 22 U.S. (9 Wheat.) 1, 195 (1824). It bears mention that even as the Court offered up these now-canonical pronouncements relating to the constitutional limitations on federal authority, it took the important (and controversial) steps of affirming Congress's power to establish a national bank, McCulloch, 17 U.S. (4 Wheat.) at 424, and relying on its authority to regulate interstate com-merce to reach those intrastate activities that "affect the states generally," Gibbons, 22 U.S. (9 Wheat.) at 195.
16. See, e.g., Essays of Brutus No. 1, N.Y.J., Oct. 18, 1787, reprinted in 2 The Complete Anti-Federalist 363, 367 (Herbert J. Storing with Murray Dry eds., 1981).
17. The Federalist No. 45, at 292 (James Madison) (Clinton Rossiter ed., 1961) (emphasis added).
18. This is not to say that one would have difficulty finding commentators who think that federal regulatory powers ought to be few and defined. That, in fact, is rather easy. See, e.g., Randy E. Barnett, Necessary and Proper, 44 UCLA L. Rev. 745 (1997); Steven G. Calabresi, "A Govern-ment of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 Mich. L. Rev. 752 (1995). My point is simply that, given the state of the applicable legal rules, most would agree that Congress's powers are sweeping and not accurately described as "few" or "defined." See infra notes 19, 53.
19. See, e.g., Lawrence Lessig, Translating Federalism: United States v Lopez, 1995 Sup. Ct. Rev. 125, 130 ("Congress has the power to reach . . . practically every activity of social life."); see also infra note 53.
20. This is not to say that judicially enforceable, federalism-based constraints on the exercise of congressional power do not exist. Indeed, the Supreme Court has animated a variety of con-straints of this sort in the relatively recent past. See, e.g., Printz v. United States, 521 U.S. 898 (1997); City of Boerne v. Flores, 521 U.S. 507 (1997); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). The limits enunciated in these cases, however, are not rooted in the enumeration strategy. As I discuss in Part I.B.1, the Rehnquist Court appeared to reinvigorate enumeration-based con-straints on the scope of the federal commerce power, see United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995), but this effort appears to have foundered, see Gonzales v. Raich, 545 U.S. 1 (2005), and it remains common, even after these cases, for scholars to pronounce the Article I enumeration strategy a failure, see infra notes 62, 66 and accompanying text.
21. U.S. Const. art. I, § 8, cl. 3.
22. Id. cl. 4.
23. Id. cl. 11.
24. Id. § 9, cl. 1.
25. See infra notes 32-33.
26. Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889).
27. Whether the government's refusal to allow Chae to return to the United States is best characterized as an act of exclusion or expulsion is the subject of debate. See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1, 132 (2002).
28. See Chae, 130 U.S. at 603 ("Jurisdiction over its own territory to that extent [(i.e. to the extent of being permitted to exclude aliens)] is an incident of every independent nation."); id. at 609 ("The power of exclusion of foreigners [is] an incident of sovereignty belonging to the government of the United States[] as a part of those sovereign powers delegated by the Constitution . . . ."). The Court's reference to "powers delegated by the Constitution" would be more encouraging to an enumerated powers purist if the Court had bothered to identify any passage in the Constitution that might be taken to embody that delegation.
29. Louis Henkin, Foreign Affairs and the United States Constitution 16 (2d ed. 1996).
30. 142 U.S. 651, 659 (1892).
31. 149 U.S. 698, 711 (1893).
32. On the limits of the Naturalization Clause argument, see The Passenger Cases, 48 U.S. (7 How.) 283, 483 (1849) (Taney, C.J., dissenting), and Cleveland, supra note 27, at 81. On the limits of the Migration or Importation Clause approach, see The Passenger Cases, 48 U.S. (7 How.) at 474-78 (Taney, C.J., dissenting), id. at 511-14 (Daniel, J., dissenting), and id. at 540-41 (Woodbury, J., dissenting). At least one authority views the Foreign Commerce Clause approach as promising, see Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 136 (1996), and another leans significantly toward this view but appears to stop short of fully endorsing it, see Cleveland, supra note 27, at 99-150, 158-63, 278-79. Other leading commentators in the field have expressed doubt about the merits of the Foreign Commerce Clause approach. See, e.g., Hiroshi Motomura, Whose Immigration Law?: Citizens, Aliens, and the Constitution, 97 Colum. L. Rev. 1567, 1594-95 (1997).
33. E.g., Thomas Alexander Aleinikoff et al., Immigration and Citizenship 192-237 (6th ed. 2008); Stephen H. Legomsky & Cristina M. Rodríguez, Immigration and Refugee Law and Policy 113-249 (5th ed. 2009).
34. See, e.g., Aleinikoff et al., supra note 33, at 206; Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 274.
35. Cleveland, supra note 27, at 162.
36. By this I mean only that the courts are unlikely to push back on the notion that Congress is, generally speaking, authorized to enact laws governing the exclusion and deportation of aliens. Constraints rooted in concern for the protection of individual rights and routed through the Due Process or Equal Protection Clauses, for example, are another matter.
37. 299 U.S. 304 (1936).
38. Curtiss-Wright focuses a great deal of attention on the powers of the federal executive, see Curtis-Wright, 299 U.S. at 319-22; but it also speaks, in more general terms, to the scope of federal authority as a whole in connection with foreign affairs, see id. at 315-18. As Professor Hen-kin has explained, see Henkin, supra note 29, at 70, the case is sometimes relied on to support the notion that Congress enjoys some legislative authority that is "inherent" in the sovereign character of the United States.
39. Curtiss-Wright, 299 U.S. at 315-16, 318.
40. See, e.g., Perpich v. Dep't of Def., 496 U.S. 334, 354 n.28 (1990); Atamirzayeva v. United States, 524 F.3d 1320, 1322-23 (Fed. Cir. 2008); Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 50 (1st Cir. 1999); United States v. Oriakhi, 57 F.3d 1290, 1296 (4th Cir. 1995); Zwei-bon v. Mitchell, 516 F.2d 594, 621 (D.C. Cir. 1975); United States v. White, 51 F. Supp. 2d 1008, 1011 (E.D. Cal. 1997).
41. Henkin, supra note 29, at 20.
42. See, e.g., Raoul Berger, The Presidential Monopoly of Foreign Relations, 71 Mich. L. Rev. 1, 26-33 (1972); David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 Yale L.J. 467, 478-90 (1946); Charles A. Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 Yale L.J. 1, 32 (1973).
43. See, e.g., Henkin, supra note 29, at 19-20; Levitan, supra note 42, at 497; Michael D. Ramsey, The Myth of Extraconstitutional Foreign Affairs Power, 42 Wm. & Mary L. Rev. 379 (2000).
44. See Harold Hongju Koh, The National Security Constitution, 94-95 (1990); Michael J. Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright?, 13 Yale J. Int'l L. 5, 12-13 (1988).
45. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936) ("[W]e are here dealing . . . with . . . the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations . . . .") (emphasis added); see also id. at 319-22 (making the case for a preeminent role for the president in the conduct of foreign affairs).
46. See, e.g., Koh, supra note 44, at 134-49; Cleveland, supra note 27, at 5-6; Levitan, supra note 42, at 497.
47. Henkin, supra note 29, at 14-15 (footnote omitted). The scholarly discourse relating to the foreign affairs power includes significant discussion of both the Necessary and Proper Clause and the "Vesting" Clause of Article II as potential textual sources for the broad sweep of the federal government's power to regulate foreign affairs. See, e.g., id. at 73-74; Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 252-53 (2001). But neither of these accounts (nor the two operating in tandem) is widely thought to "solve" the textual difficulties that attach to the foreign affairs power, and the conventional view remains that the federal government retains significant unenumerated power in the area of foreign affairs.
48. See Prakash & Ramsey, supra note 47, at 233 ("Many eminent scholars and judges have labored to make sense of the Constitution's allocation of foreign affairs powers. Although these attempts often have little in common, they share one trait: They have given up on the Constitution. The received wisdom would have us believe that the foreign affairs Constitution contains enormous gaps that must be filled by reference to extratextual sources . . . .").
49. See id.
50. Immigration and foreign affairs are not the only areas in connection with which the Supreme Court has acknowledged the existence of "inherent" federal regulatory authority, i.e., federal power drawn from sources outside the text of the Constitution. Thus, federal authority over Indian affairs and federal authority in connection with U.S. territories are both justified by reference to "inherent power" theories. See, e.g., Cleveland, supra note 27, at 25-81 (reviewing cases estab-lishing and expounding on an "inherent power" theory of federal authority over Indian tribes); id. at 200-50 (exploring the development of an "inherent power" theory of federal authority over territo-ries); Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 212-26 (1984) (noting the development of the inherent power conception of fed-eral authority over Indian tribes). Dean Caminker has also identified an array of federal powers (including the power to safeguard presidential elections, to enact a maritime code, and to preserve and protect the American flag as a national symbol) that appear to be implied in the structure of the Constitution, rather than enumerated in its text. Evan H. Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 Stan. L. Rev. 1127, 1135 & n.35 (2001).
51. At least this is arguably the case. As we will see, some who acknowledge the legitimacy of the vast expansion of federal power during and after the New Deal era reject the notion that the powers ratified by the Court can properly be understood as exercises of the commerce power. See infra note 67 and accompanying text.
52. See Ackerman, supra note 13, at 103 ("[T]he original Constitution did not grant plenary lawmaking authority to the national government, but doled out power in a series of enumerated grants. This textual strategy would have been pointless if one of the enumerated powers . . . was read so expansively as to embrace the whole.").
53. See, e.g., Laurence H. Tribe, American Constitutional Law 816 (3d ed. 2000); Lessig, supra note 19, at 130. Numerous commentators have characterized the enumerated powers strategy as a "failure," e.g., Steven D. Smith, The Writing of the Constitution and the Writing on the Wall, 19 Harv. J.L. & Pub. Pol'y 391, 396 (1996); Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm. & Mary L. Rev. 1733, 1764, 1766, 1802 (2005), while others have described federal authority under Article I as virtually unlimited, e.g., Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 338 (1997); Ilya Somin, A False Dawn for Federalism: Clear Statement Rules after Gonzales v. Raich, 2005-2006 Cato Sup. Ct. Rev. 113, 115.
54. E.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Hammer v. Dagenhart, 247 U.S. 251 (1918).
55. E.g., Carter Coal, 298 U.S. at 294; Schechter Poultry, 295 U.S. at 548.
56. That, at least, is the conventional view. It is reflected in the work of many scholars. See Barry Cushman, Rethinking the New Deal Court, 80 Va. L. Rev. 201, 202 n.1 (1994) (listing sources). A number of commentators have criticized this view as oversimplified and/or insufficiently supported by the relevant historical evidence. See, e.g., Barry Cushman, Rethinking the New Deal Court (1998); G. Edward White, The Constitution and the New Deal (2000); Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994).
57. See Wickard v. Filburn, 317 U.S. 111, 127-28 (1942); United States v. Darby, 312 U.S. 100, 122-23 (1941); NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 7 (1937).
58. See Perez v. United States, 402 U.S. 146 (1971); Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); see also Tribe, supra note 53, at 815.
59. See supra note 53.
60. 514 U.S. 549 (1995).
61. 529 U.S. 598 (2000).
62. See, e.g., Kathleen M. Sullivan, From States' Rights Blues to Blue States' Rights: Federalism After the Rehnquist Court, 75 Fordham L. Rev. 799, 806 (2006); Young, supra note 53, at 1808 & n.300.
63. E.g., Morrison, 529 U.S. at 607 ("Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution."); Lopez, 514 U.S. at 567 (insisting that upholding the statute under review "would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated").
64. See supra note 62; infra note 66.
65. 545 U.S. 1 (2005) (upholding application of the Controlled Substances Act to individuals who grew small amounts of marijuana for medicinal use).
66. See, e.g., Lino A. Graglia, Lopez, Morrison, and Raich: Federalism in the Rehnquist Court, 31 Harv. J.L. & Pub. Pol'y 761, 785 (2008) ("Raich indicates a return to the Court's prac-tice since 1937 of reviewing purported exercises of the commerce power in name only, which makes judicial review a means of validation rather than a limitation."); Randy E. Barnett, Three Federalisms, 39 Loy. U. Chi. L.J. 285, 293 (2008) (similar).
67. See, e.g., 2 Bruce Ackerman, We the People: Transformations 259-61 (1998) (arguing that the New Deal entailed "a sweeping redefinition of the aims and methods of American government" and that this redefinition constitutes change of constitutional dimension); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1470 (2001) (noting that while the "expansion of Congress's power came about principally through judicial interpretation, especially of the Commerce Clause . . . [t]his change in the scope of federal power has to be regarded as a constitutional change"). Neither Professor Strauss nor Professor Ackerman means to intimate, through these passages, that the relevant cases were, as Strauss puts it, "usurpa-tive or otherwise inappropriate." Id. Nevertheless, their approaches treat the New Deal revolution as something more than a matter of our collectively coming to grips with the fact that, as a result of changed circumstances, extant doctrinal categories and fragments of constitutional text had come to be more capacious than they once were.
68. See Douglas Laycock, Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights, 99 Yale L. J. 1711, 1735 (1990) (discussing "the transportation and communication revolutions that forever changed the nature of interstate commerce" and arguing that "[t]he change was sudden and dramatic," that "it required no legal fiction to see the effects," of this change, and that as a result of this change, "[n]o state or locality could man-age its own economy and no commerce was beyond the reach of the commerce clause"); Lessig, supra note 19, at 137-44 (discussing the increased integration of the U.S. economy over time and the concomitant expansion of the constitutional category "Commerce . . . among the several states"); see also Laycock, supra, at 1736 ("The concept of intrastate commerce became obsolete, not be-cause of judicial interpretation, but because of technological change.").
69. Laycock, supra note 68, at 1736-38.
70. Laycock, supra note 68, at 1736-38.
71. Many of the crucial cases expounding on the scope of the commerce power have flagged the Necessary and Proper Clause as a relevant source of federal authority. See, e.g., Gonzales v. Raich, 545 U.S. 1, 35 (2005) (Scalia, J., concurring); Wickard v. Filburn, 317 U.S. 111, 121 (1942); United States v. Darby, 312 U.S. 100, 118 (1941); see also, e.g., Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 807-11 (1996) (discussing the role of the Neces-sary and Proper Clause in underwriting the expansion of the federal power over the course of the 20th century).
72. See, e.g., Donald H. Regan, How To Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554, 555-57 (1995).
73. Id. at 556 ("The mere fact of an enumeration of powers makes it clear that the federal government's powers are meant to be limited.").
74. The spending power is drawn from Article I, Section 8, Clause 1, which provides, "The Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States." U.S. Const. art. I, § 8, cl. 1.
75. 297 U.S. 1 (1936).
76. 483 U.S. 203 (1987).
77. Butler, 297 U.S. at 54-55.
78. Id. at 66. The Court ultimately invalidated the regulatory scheme on the ground that, by regulating agricultural production (even if only indirectly through a conditional grant of federal funds), it invaded a sphere of state autonomy that is off limits to the federal government under the Tenth Amendment. Id. at 68.
79. The Butler Court traced this understanding of the spending power to the founding generation, and to Alexander Hamilton in particular. Id. at 65-66 ("Hamilton . . . maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States."). See generally Alexander Hamilton, Alexander Hamilton's Final Version of the Report on the Subject of Manufactures (Dec. 5, 1791), in 10 The Papers of Alexander Hamil-ton 230 (Harold C. Syrett et al. eds., 1966).
80. Dole, 483 U.S. at 205 (omission in original) (quoting 23 U.S.C. § 158 (1982 & Supp. III)) (internal quotation marks omitted).
81. Id. at 206. The State had insisted that the federal government is prohibited under the Twenty-First Amendment from directly establishing a minimum drinking age and that it could not use the spending power to accomplish indirectly that which the Twenty-First Amendment prohibited it from accomplishing directly. Id. at 205.
82. Id. at 207 (internal quotation marks omitted).
83. Lynn A. Baker, Conditional Spending After Lopez, 95 Colum. L. Rev. 1911, 1914 (1995) [hereinafter Baker, Conditional Spending]. Professor Baker has repeatedly criticized the Court's Spending Clause decisions and is an ardent proponent of limiting Congress's authority in this area. See Lynn A. Baker, Constitutional Ambiguities and Originalism: Lessons from the Spending Power, 103 Nw. U. L. Rev. 495 (2009); Lynn A. Baker & Mitchell N. Berman, Getting Off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 Ind. L.J. 459 (2003); Lynn A. Baker, The Spending Power and the Federalist Revival, 4 Chap. L. Rev. 195 (2001).
84. Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law, 89 Cornell L. Rev. 1, 25 (2003); see also Baker, Conditional Spending, supra note 83, at 1920 (arguing that under the prevailing conception of the spending power, "the notion of 'a federal government of enumerated powers' [has] no meaning"); Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 Sup. Ct. Rev. 85, 85 (contending that Spending Clause doctrine "challenge[s]" the notion "that the national government is one of dele-gated powers").
85. For a thoughtful discussion of the future of Spending Clause litigation, see Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345 (2008).
86. See Dole, 483 U.S. at 217 (O'Connor, J., dissenting) (quoting United States v. Butler, 297 U.S. 1, 78 (1936)) (internal quotation marks omitted).
87. That Section reads: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitu-tion, 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 will 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. U.S. Const. art. III, § 2.
88. See infra Section II.A.
89. The Court has, on more than one occasion, adopted narrowing constructions of jurisdictional statutes in order to avoid potential Article III difficulties. See, e.g., Mesa v. California, 489 U.S. 121 (1989) (refusing to construe the federal officer removal statute, 28 U.S.C. § 1442(a)(1), to reach cases in which the defendant federal official presents state-law defenses to a state-law claim); Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303, 304 (1809) (declining to construe section 11 of the Judiciary Act of 1789 to establish federal court jurisdiction in every suit to which an alien is a party); Montalet v. Murray, 8 U.S. (4 Cranch) 46 (1807) (same); Mossman v. Higginson, 4 U.S. (4 Dall.) 12 (1800) (same). These decisions suggest that the Court is willing to give at least some bite to the Article III enumeration, even if it has never gone so far as to invalidate a jurisdictional statute on this basis. Still, these cases do not undermine the core claims I develop here, namely that (1) the Article III enumeration imposes only weak constraints on Congress's jurisdiction-conferring author-ity, and (2) the Court has repeatedly taken great pains to avoid enforcing any such constraints. As I explain in Part III, moreover, it is possible to read these cases as supportive of the "congressional power" model of federal court jurisdiction that I develop in this Article. See infra n.201.
90. 461 U.S. 480, 491 (1983).
91. 504 U.S. 689, 695 (1992).
92. 490 U.S. 545, 558-59 (1989) (Stevens, J., dissenting) (footnote omitted).
93. See, e.g., Mizuna, Ltd. v. Crossland Fed. Sav. Bank, 90 F.3d 650, 655 (2d Cir. 1996); In re Meyerland Co., 960 F.2d 512, 517 (5th Cir. 1992); In re TMI Litig. Cases Consol. II, 940 F.2d 832, 849 (3d Cir. 1991); Balt. Gas and Elec. Co. v. United States, 133 F. Supp. 2d 721, 725 (D. Md. 2001).
94. See, e.g., Erwin Chemerinsky, Federal Jurisdiction 266 (5th ed. 2007); 13 Charles Alan Wright et al., Federal Practice and Procedure § 3521 (3d ed. 2008); Brad-ford R. Clark, Federal Lawmaking and the Role of Structure in Constitutional Interpretation, 96 Cal. L. Rev. 699, 724 (2008); Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1622 (2008).
95. Lawrence Gene Sager, Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17, 22 (1981).
96. James E. Pfander, The Tidewater Problem: Article III and Constitutional Change, 79 Notre Dame L. Rev. 1925, 1926 (2004).
97. The essential reading on the subject of protective jurisdiction includes Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216 (1948); Paul J. Mishkin, The Federal "Question" in the District Courts, 53 Colum. L. Rev. 157 (1953); Carole E. Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts, 30 UCLA L. Rev. 542 (1983); Scott A. Rosenberg, The Theory of Protective Jurisdiction, 57 N.Y.U. L. Rev. 933 (1982); Eric J. Segall, Article III as a Grant of Power: Protective Jurisdiction, Federalism and the Federal Courts, 54 Fla. L. Rev. 361 (2002); Pfander, supra note 96; Carlos M. Vazquez, The Federal "Claim" in the District Courts: Osborn, Verlinden, and Protective Jurisdiction, 95 Cal. L. Rev. 1731 (2007); and Ernest A. Young, Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption, 95 Cal. L. Rev. 1775 (2007). I will explore different theories of protective jurisdiction in Part IV.
98. Goldberg-Ambrose, supra note 97, at 545 (footnote omitted).
99. 337 U.S. 582, 604, 626 (1949) (Rutledge, J., concurring); National Mutual Insurance Co., 337 U.S. at 645 (Vinson, C.J., dissenting); id. at 652 (Frankfurter, J., dissenting); see also Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 474 (1957) (Frankfurter, J., dissenting) (insisting that the theory of protective jurisdiction "cannot be justified under any view of the allowable scope to be given to Article III").
100. Indeed, only one other opinion from the entire history of the Supreme Court expresses even a modicum of support for this understanding of the constitutional limits of federal jurisdiction, but that (two paragraph) opinion does not bother to explain or defend the view. See Lincoln Mills, 353 U.S. at 460 (Burton, J., concurring).
101. As I discuss in Part III, this is not to say that the Article III enumeration does nothing to constrain Congress in its conferral of jurisdiction on the federal courts. But these enumeration-based constraints are, for the most part, self-imposed. See infra text accompanying notes 242-245.
102. 22 U.S. (9 Wheat.) 738 (1824).
103. Act of Apr. 10, 1816, ch. 44, 3 Stat. 266, 269.
104. See Bank of the U.S. v. Planters' Bank of Ga., 22 U.S. (9 Wheat.) 904, 907-08 (1824) (explaining that "when a government becomes a partner in any trading company, it devests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a pri-vate citizen" and that "[a]s a member of a corporation, a government never exercises its sovereignty").
105. U.S. Const. art. III, § 2 ("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 . . . .").
106. See Osborn, 22 U.S. (9 Wheat.) at 811-16 (argument of Harper, Brown, and Wright).
107. Id. at 824, 827.
108. Osborn, 22 U.S. (9 Wheat.) at 824.
109. See, e.g., id. at 874-76, 886-87, 889 (Johnson, J., dissenting); Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480, 492 (1983); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 482 (1957) (Frankfurter, J., dissenting); Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 86 (2d ed. 1990); James H. Chadbourn & A. Leo Levin, Original Jurisdiction of Federal Questions, 90 U. Pa. L. Rev. 639, 662 (1942). Some find this exceedingly broad reading of Osborn constitutionally untenable. See, e.g., Osborn, 22 U.S. (9 Wheat.) at 874 (Johnson, J., dissenting); Lincoln Mills, 353 U.S. at 481-82 (Frankfurter, J., dissenting). The princi-pal concern that has been raised in connection with this reading of the Arising Under Clause is that it cannot be reconciled with the structural side of the strict enumeration view (since it authorizes federal jurisdiction of virtually unlimited scope). As will become clear in Part III, I do not think it disqualifying for a theory of federal jurisdiction to contemplate only the thinnest of Article III-based limits on the exercise of federal judicial power. Accordingly, my critique of the Osborn rule does not focus-as others do-on its breadth. I focus, instead, on the disconnect between the content of the Osborn rule and the purpose it is supposedly designed to serve.
110. See, e.g., Anthony J. Bellia Jr., The Origins of Article III "Arising Under" Jurisdiction, 57 Duke L.J. 263, 332-40 (2007) [hereinafter Bellia, Origins]; Anthony J. Bellia, Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 800-12 (2004) [hereinafter Bellia, Article III]. In Bellia's view, the "original ingredient" test carries a technical meaning rooted in pleading conventions drawn from longstanding practice at English common law that does not extend to every suit in which a question of federal law might possibly arise. See Bellia, Article III, supra, at 808; Bellia, Origins, supra, at 334-35; see also Louise Weinberg, The Power of Congress over Courts in Nonfederal Cases, 1995 BYU L. Rev. 731, 782 (noting that one might read Osborn for the (relatively narrow) proposition that "all suits involving federal instrumentalities 'arise under' [federal law]").
111. There is good reason to think that this was an important unspoken goal of Marshall's decision. It certainly would be consistent with the jurisprudence of the Marshall Court more generally. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (holding that Congress has broad discretion under the Necessary and Proper Clause to select the legislative means it thinks most efficacious for advancing the legitimate ends of the federal government).
112. To be sure, it is not always possible, at the outset of a case, to determine what role federal law will play (if any) as the suit unfolds. And a construction of the Arising Under Clause that allows for federal jurisdiction only in cases in which questions of federal law are actually at issue would prevent the exercise of original jurisdiction by the federal courts in many cases in which federal law turns out to play a prominent role. It could be argued, accordingly, that Chief Justice Marshall's expansive conception of the Arising Under Clause is necessary to safeguard the interest in federal court adjudication of federal questions. But this argument hangs together only if one dismisses the possibility that some combination of removal jurisdiction and review of state court judgments by the U.S. Supreme Court (or, less conventionally, the U.S. courts of appeals) will ensure adequate federal court intervention in suits that require interpretation of federal law but fall outside the federal courts' original jurisdiction. See Lincoln Mills, 353 U.S. at 481-82 (1957) (Frankfurter, J., dissenting) ("We . . . have become familiar with removal procedures that could be adapted to alleviate any remaining fears by providing for removal to a federal court whenever a federal question was raised."); Mishkin, supra note 97, at 187 (noting that state court errors in the construction and application of federal law might have been remedied "by Supreme Court reversal of any negation of . . . [federal] power by the state courts"). The Osborn Court had nothing to say about this set of issues. It simply touched on the interest in federal court adjudication of questions of federal law and endorsed the awkward and over-inclusive construction under which suits might "arise under" questions of federal law that turn out to play no role in the litigation. Osborn, 22 U.S. (9 Wheat.) at 826.
113. Harry Shulman & Edward C. Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 405 (1936) ("[T]he Bank was the object of great popular hatred and of measures of reprisal by many state legislatures. It was sadly in need of a federal haven for its litigation.").
114. See Goldberg-Ambrose, supra note 97, at 549; Mishkin, supra note 97, at 195.
115. I address this issue in Part III.
116. 28 U.S.C. § 1334(b) (2006).
117. See Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984) ("[T]he test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy."); see also John T. Cross, Congressional Power to Extend Federal Jurisdiction to Disputes Outside Article III: A Critical Analysis from the Perspective of Bankruptcy, 87 Nw. U. L. Rev. 1188, 1194 (1993) ("In general, a proceeding is related to a bankruptcy case if resolution of that proceeding could in any way affect the liquidation or reorganization of the debtor's estate." (emphasis added)).
118. See Cross, supra note 118, at 1190 ("[F]ederal courts in bankruptcy may exercise jurisdiction over . . . state-law claims without reference to the citizenship of the parties . . . .").
119. The cases I explore here all predate the modern incarnation of the statute, which was enacted in 1978 and which contains the broad "related to" language quoted above. Nevertheless, these cases are germane because they speak (obliquely, as we will see) to the legitimacy of federal bankruptcy jurisdiction in suits between non-diverse parties that are to be governed by state law.
120. 91 U.S. 516 (1875).
121. 293 U.S. 367 (1934).
122. 331 U.S. 642 (1947).
123. See Austrian, 331 U.S. at 664 (Frankfurter, J., dissenting) (discussing federal court litiga-tion of state-law causes of action between non-diverse parties and asserting that "[n]o doubt Congress could authorize such a suit"); Schumacher, 293 U.S. at 374 ("The Congress, by virtue of its constitutional authority over bankruptcies, could confer or withhold jurisdiction to entertain such suits and could prescribe the conditions upon which the federal courts should have jurisdiction."); Lathrop, 91 U.S. at 518 ("[A] uniform system of bankruptcy, national in its character, ought to be capable of execution in the national tribunals, without dependence upon those of the States in which it is possible that embarrassments might arise.").
124. See Cross, supra note 118, at 1204, 1207 n.72; Thomas Galligan, Jr., Article III and the "Related to" Bankruptcy Jurisdiction: A Case Study in Protective Jurisdiction, 11 U. Puget Sound L. Rev. 1, 21 (1987); Radha A. Pathak, Breaking the "Unbreakable Rule": Federal Courts, Article I, and the Problem of "Related To" Bankruptcy Jurisdiction, 85 Or. L. Rev. 59, 79, 81 (2006). But see Cross, supra note 118, at 1206 ("[T]he Court in Schumacher was forced to consider the constitutional question.").
125. Cross, supra note 118, at 1204 n.60, 1207; Pathak, supra note 125, at 77.
126. See Cross, supra note 118, at 1204; Galligan, supra note 125, at 20; Pathak, supra note
127. 125, at 75.
128. Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) (Frankfurter, J., dissenting).
129. Versions of this argument are explored in Ralph Brubaker, On the Nature of Federal Bankruptcy Jurisdiction: A General Statutory and Constitutional Theory, 41 Wm. & Mary L. Rev. 743, 831-52 (2000), and Cross, supra note 118, at 1237-50. Commentators link this theory of sup-plemental jurisdiction to the familiar species that was explicitly authorized by the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715 (1966). Under Gibbs, what is required in order to usher state-law claims between non-diverse parties into the federal courts is that the claims arise out of "a common nucleus of operative fact." Id. at 725. In the bankruptcy context, what is required is some nexus between the state-law claim and the administration of a bankrupt estate.
130. See Lincoln Mills, 353 U.S. at 472 (Frankfurter, J., dissenting).
131. Cross, supra note 118, at 1232.
132. See, e.g., Lincoln Mills, 353 U.S. at 472 (Frankfurter, J., dissenting) ("[T]he trustee's right to sue might be challenged on obviously federal grounds-absence of bankruptcy or irregularity of the trustee's appointment or of the bankruptcy proceedings. So viewed, this type of litigation implicates a potential federal question." (citation omitted)).
133. See, e.g., Cross, supra note 118, at 1237 ("[T]he bankruptcy jurisdiction statutes . . . do not fit neatly within current theories of ancillary jurisdiction."); id. at 1240 ("Bankruptcy jurisdiction fails the Gibbs . . . test."); Galligan, supra note 125, at 36-41 (detailing myriad difficulties with the ancillary jurisdiction account of "related to" bankruptcy jurisdiction).
134. Gibbs, 383 U.S. at 725.
135. Cross, supra note 118, at 1240.
136. Young, supra note 97, at 1783-84.
137. See supra text accompanying notes 131-132.
138. See Galligan, supra note 125, at 34.
139. Young, supra note 97, at 1783; see also Cross, supra note 118, at 1232 ("The trustee is not a party to a significant number of the proceedings that arise in bankruptcy.").
140. Brubaker, supra note 129, at 830 ("Osborn's original federal ingredient theory simply cannot be stretched to reach . . . third-party claims . . . .").
141. See supra text accompanying notes 111-115.
142. 337 U.S. 582 (1949).
143. Act of April 20, 1940, ch. 117, 54 Stat. 143. Diversity jurisdiction was established by statute through the Judiciary Act of 1789. That statute authorized the federal courts to hear suits "between a citizen of the State where the suit is brought, and a citizen of another State." Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78. The 1940 amendment is now codified at 28 U.S.C. § 1332(e), which provides that "[t]he word 'States', as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico." 28 U.S.C. § 1332(e) (2006).
144. See Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 165 F.2d 531, 536 (4th Cir. 1948).
145. U.S. Const. art. III, § 2.
146. But see infra notes 152, 156-157 and accompanying text (discussing Justice Rutledge's opinion, which concludes that District of Columbia citizens qualify as citizens of a "state" for purposes of the Constitution's Diversity Clause).
147. Tidewater, 165 F.2d at 536.
148. Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 606-17 (1949) (Rutledge, J., concurring); id. at 626-45 (Vinson, C.J., dissenting); id. at 646-52 (Frankfurter, J., dissenting).
149. Id. at 584-88 (plurality opinion); id. at 645-46 (Vinson, C.J., dissenting); id. at 652-55 (Frankfurter, J., dissenting).
150. Id. at 600 (plurality opinion) ("[W]here Congress in the exercise of its powers under Art.
151. I finds it necessary to provide those on whom its power is exerted with access to some kind of court or tribunal for determination of controversies that are within the traditional concept of the justiciable, it may open the regular federal courts to them regardless of lack of diversity of citizenship.").
152. U.S. Const. art. I, § 8, cls. 17-18.
153. Tidewater, 337 U.S. at 625-26 (Rutledge, J., concurring).
154. See, e.g., Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 244 n.116 (1990); Rosenberg, supra note 97, at 981.
155. See supra note 96 and accompanying text.
156. Tidewater, 337 U.S. at 607 (Rutledge, J., concurring).
157. Id. at 605 ("[T]here is no real escape from deciding what the word 'State' as used in Article III, § 2 of the Constitution means.").
158. Id. at 625.
159. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954) (deeming the segregation of schools by race in the District of Columbia to be violative of what we now commonly characterize as the "equal protection component" of the Fifth Amendment's Due Process Clause). For a provoca-tive discussion of the relationship between Bolling, Tidewater, and a contemporary debate relating to the status of District citizens, see Richard Primus, Constitutional Expectations (forthcoming MICH. L. REV. 2010).
160. To be clear, Justice Rutledge did not suggest that the District be treated as a "State" for all purposes. He was not suggesting, for example, that the District is entitled to representation in the Senate. Still, even confined to Article III's deployment of the term "State," Rutledge's reading is plenty striking. At the very least, it requires that the foundational term "State" be understood in different ways in different sections of the Constitution.
161. 353 U.S. 448 (1957).
162. Labor Management Relations (Taft-Hartley) Act § 301(a), 29 U.S.C. § 185(a) (2006).
163. Labor Management Relations (Taft-Hartley) Act § 301(a), 29 U.S.C. § 185(a) (2006).
164. Lincoln Mills, 353 U.S. at 450-51, 456-57.
165. See Bickel & Wellington, supra note 10, at 7 ("If there is a federal law of labor contracts, there is a law for section 301 cases to arise under.").
166. Lincoln Mills, 353 U.S. at 460 (Burton, J., concurring).
167. I will examine protective jurisdiction theories in detail in Part IV.
168. See Edward B. Miller & Willis S. Ryza, Suits By and Against Labor Organizations Under the National Labor Relations Act, 1955 U. Ill. L.F. 101, 103-07 (assessing the constitutionality of § 301(a) and noting that "Congress creates no substantive rights" through the statute); Donald H. Wollett & Harry H. Wellington, Federalism and Breach of the Labor Agreement, 7 Stan. L. Rev. 445, 473 (1955) ("[T]he language of Section 301(a) merely provides that suit may be brought in a federal district court. It makes no reference to federal substantive law.").
169. 353 U.S. at 462 (Frankfurter, J., dissenting).
170. See Bickel & Wellington, supra note 10, at 19; Wollett & Wellington, supra note 167, at 472. I don't mean to suggest that there is no support for the majority's view in the legislative history of the LMRA. There is. In particular, there is some evidence that Senator Taft believed that cases arising under § 301 would be governed by federal law. See Labor Relations Program: Hearings on S. 55 and S.J. Res. 22 Before the Comm. on Labor and Pub. Welfare, 80th Cong. 57 (1947). But these bits of evidence have failed to persuade most observers that the Lincoln Mills majority has the better of the argument on this score. But see James E. Pfander, Judicial Purpose and the Scholarly Process: The Lincoln Mills Case, 69 Wash. U. L.Q. 243, 287-309 (1991) (mining the legislative history of the Taft-Hartley Act in an effort to resuscitate the reading of § 301 advanced by the Lincoln Mills majority).
171. Lincoln Mills, 353 U.S. at 452.
172. See Bickel & Wellington, supra note 10, at 8 (taking note of "the modern American doctrine which refuses to impute to Congress the casual intention to make vast and far-reaching changes in existing statutory or common law, especially if the effect is an important alteration in the federal balance," and explaining that "[s]uch is most certainly the effect of section 301 if it is read to create a body of substantive federal law").
173. See id. at 6 ("The disposition [in Lincoln Mills] was virtually without 'opinion,' if by opinion we mean rationally articulated grounds of decision."); Charles O. Gregory, The Law of the Collective Agreement, 57 Mich. L. Rev. 635, 641 (1959) ("Justice Douglas did not offer much explanatory legal theory. He saw where he wanted to go and knew he would get there if he could get the votes of four of his colleagues . . . .").
174. Pfander, supra note 169, at 245-46 (footnotes omitted).
175. The notable dissenting voices are those of Professors Pfander and Shapiro. See id.; see also David L. Shapiro, The Story of Lincoln Mills: Jurisdiction and the Source of Law, in Federal Courts Stories 389, 401-04 (2010); David L. Shapiro, Of Institutions and Decisions, 22 Stan. L. Rev. 657, 664 (1970).
176. 461 U.S. 480 (1983).
177. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1330(a) (2006).
178. U.S. Const. art. III, § 2 (extending the judicial power of the United States to "Controversies between . . . a State, or the Citizens thereof, and foreign States").
179. Verlinden, 461 U.S. at 493.
180. Id. at 493-94 (footnote omitted).
181. Id. at 493.
182. Id. (emphasis added).
183. Vazquez, supra note 97, at 1740.
184. Verlinden, 461 U.S. at 493 n.20.
185. 28 U.S.C.S § 1605(a) (LexisNexus 2003 & Supp. 2009); see also Vazquez, supra note 97, at 1741 (emphasizing the waivability of claims of immunity by foreign sovereigns and rejecting the Verlinden Court's contention that the issue of immunity is present in every suit against a foreign sovereign).
186. See Segall, supra note 97, at 381; Vazquez, supra note 97, at 1740.
187. See, e.g., Gulf Resources Am., Inc. v. Congo, 370 F.3d 65, 72-74 (D.C. Cir. 2004) (enforcing contractual clause waiving immunity of a foreign sovereign); Proyecfin de Venez., S.A. v. Banco Indus. de Venez., S.A., 760 F.2d 390, 393-94 (2d Cir. 1985) (similar).
188. See, e.g., Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 243 (2d Cir. 1996) (noting that a foreign sovereign may impliedly waive its immunity from suit by "filing a responsive pleading without asserting an immunity defense"); MCI Telecomms. Corp. v. Alhadhood, 82 F.3d 658 (5th Cir. 1996) (similar).
189. Verlinden, 461 U.S. at 492 (emphasis added); see also supra note 110 and accompanying text.
190. Verlinden, 461 U.S. at 493.
191. Id. at 491.
192. I do not wish to overstate the point. As noted earlier, read for all it is worth, the Osborn decision arguably renders Congress's authority to channel cases into the federal courts virtually unlimited, and this is structurally incompatible with the enumeration of powers in Article III, Sec-tion 2. See supra note 110. To the extent this is true, and to the extent Osborn nonetheless remains one of the pillars of conventional thinking about the constitutional limits on federal subject matter jurisdiction, it is appropriate to say that the standard account of the law in this area has, in a way, assimilated the erosion of the Article III enumeration. Still, the evidence on the whole overwhelm-ingly suggests our legal culture's continued commitment to the strict enumeration view of Article III. See supra Part II.A. Osborn's failure to dislodge this view may be attributable to the fact that an alternative, narrower account of the Osborn decision is available. See supra note 111 (discussing Professor Bellia's understanding of the Osborn decision). Or perhaps it is because the Supreme Court itself has raised doubts as to the soundness of the broad reading of Osborn. Verlinden, 461 U.S. at 492 (noting that the breadth of the Osborn rule "has been questioned").
193. Jurisdictional enactments other than those addressed in these cases pose difficult ques-tions from the perspective of the Article III enumeration. Specifically, jurisdictional components of the Clean Air Act, the Air Transportation Safety and System Stabilization Act, the Diplomatic Rela-tions Act, and the Alien Tort Statute have all been identified by commentators as something of a tight fit for purposes of Article III. See, e.g., Richard H. Fallon, Jr. et al., The Federal Courts and The Federal System 772-73 (6th ed. 2009). If these are to be brought within the limits of Article III, Section 2, still more interpretive stretching is required. See Young, supra note 97, at 1787-93 (attempting to defend the constitutionality of these jurisdictional enactments under Article III).
194. The Court's willingness to overlook (or, really, overturn) established precedent in order to accommodate jurisdictional enactments designed to advance important federal regulatory inter-ests was also on display in connection with the issue of corporate citizenship. Thus, the Court held, in Bank of the U.S. v. Deveaux, 9 U.S. (5 Cranch) 61 (1809), that corporations did not count as state "citizens" for purposes of the Diversity Clause of the Constitution. As a leading treatise explains, however, "[t]he increased use of the corporate form as a means of doing business, the appearance of entities engaged in interstate activities, and the desire of corporations to resort to the federal courts proved inexorable," Wright et al., supra note 4, § 3623 (3d ed. 2009), and in 1844 the Court relented and overturned Deveaux, see Louisville, Cincinnati & Charleston R.R. Co. v. Letson, 43 U.S. (2 How.) 497 (1844).
195. Of course, the extreme improbability of Congress enacting a jurisdictional provision of this sort is almost certainly a function of, among other things, federal legislators' sense of obligation to work within the text of Article III. In this way, the Constitution's enumeration of powers disciplines Congress's behavior with respect to the establishment of federal jurisdiction even without the specter of searching judicial review hovering over legislators' heads.
196. As the discussion in Part II makes clear, in the Article III context, the stretching of indi-vidual enumerated powers is the more prevalent means of justifying Congress's more controversial jurisdictional enactments. Only Tidewater suggests the permissibility of grounding federal court jurisdiction in constitutional provisions outside the Article III enumeration. I will discuss this fact, and its ramifications for the jurisdictional theory I develop here, in Parts III and IV.
197. See supra note 4.
198. See, e.g., Wright et al., supra note 4, § 3601.
199. As Part II makes clear, the cases do this without saying so. Justice Jackson's opinion in Tidewater is the only one in this line of cases openly to acknowledge that it relies on such a theory; the others typically disclaim this approach, and do so with vigor. As the discussion in Part III indi-cates, however, the congressional power account better accords with the arc of the case law in this area as a whole.
200. Wechsler, supra note 97, at 225.
201. See Rosenberg, supra note 97, at 948. One commentator summarized the array of national interests that might be served by the establishment of federal court jurisdiction in state-law cases as follows: First, Congress may want to protect federal instrumentalities from state court hostility. Second, Congress may want a certain set of obligations to be litigated in a more uniform setting than the fifty state court systems. Third, Congress may believe that certain federal procedures . . . may further national interests even though the law to be applied in such cases is state law. Segall, supra note 97, at 367 (footnotes omitted); see also Rosenberg, supra note 97, at 949-50 (similar).
202. I suggested earlier, see supra n.89, that the Supreme Court's decisions in Mesa v. California and Hodgson v. Bowerbank, both of which advanced narrowing constructions of federal jurisdictional statutes in an apparent effort to avoid running afoul of the Article III enumeration, can be understood in terms consistent with the congressional power model. This is because it is at least arguable that the jurisdictional statutes at issue in those cases did not serve any legitimate federal interest. In other words, the cases might be better understood in Article I terms, rather than Article III terms. Mesa readily lends itself to such a reading. In that case, the Court rejected the govern-ment's reading of the federal officer removal statute, 28 U.S.C. § 1442, which would have allowed for removal to federal court in any suit against a federal officer for actions taken in the course and scope of that officer's employment (without regard to whether the defendant raised a defense sounding in federal law). In so doing, the Court stated, "[W]e do not recognize any federal interests that are not protected by limiting removal to situations in which a federal defense is alleged." Mesa v. California, 489 U.S. 121, 137 (1989). From the perspective of the congressional power model, the Court's reference to the absence of "any federal interest" in the relevant cases is particularly pro-vocative. Without a federal interest at stake, there is no foundation under Article I for federal action. In Hodgson, meanwhile, the Court declined to read Section 11 of the Judiciary Act of 1789 as ex-tending federal court jurisdiction to every suit to which an alien is a party. Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303, 304 (1809); see also Montalet v. Murray, 8 U.S. (4 Cranch) 46 (1807) (same); Mossman v. Higginson, 4 U.S. (4 Dall.) 12 (1800) (same). The Court intimated, rather, that for alienage jurisdiction to lie, an alien and a U.S. citizen must be pitted against one another. In contrast to Mesa, nothing on the face of the Hodgson opinion lends support to the congressional power model of federal jurisdiction. The Court's cryptic four-sentence opinion speaks of avoiding an Article III difficulty, not of any problem with congressional power under Article I. Still, it is far from obvious that there is a federal interest in play when one alien sues another in a domestic court. And the holding of Hodgson, if not the rhetoric, can be read as reinforcing the notion that the touchstone of federal judicial power in the presence of some legitimate federal interest.
203. See Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480, 493 n.19 (1983).
204. U.S. Const. art. I, § 8, cl. 17. This argument, as noted earlier, was pressed by Justice Jackson in Tidewater. See supra text accompanying notes 150-151.
205. U.S. Const. art. I, § 8, cl. 3.
206. Id. cl. 18. Justice Jackson's opinion in Tidewater relies explicitly on the Necessary and Proper Clause as a source of congressional authority to establish federal court jurisdiction in the cases at issue. See Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 589, 603 (1949) (plurality opinion).
207. See supra text accompanying notes 14-17.
208. Numerous participants in the public debates over the ratification of the Constitution expressed concern that federal court jurisdiction would ultimately prove limitless and/or would ultimately render the state courts unnecessary. E.g., Letter from the Federal Farmer No. 18 (Jan. 25, 1788), reprinted in 2 The Complete Anti-Federalist 346-47 (Herbert J. Storing with Murray Dry eds., 1981); Essays of Brutus No. 12, N.Y.J., Feb. 7, 1788, reprinted in The Complete Anti-Federalist, supra, at 427; 3 The Debates in the Several State Conventions on the Adop-tion of the Federal Constitution (Jonthan Elliot ed., 2d ed. 1836) 521, 523 [hereinafter Elliot's Debates] (Mason); 4 id. at 137, 164 (Spencer). The nationalist camp, as one would expect, pointed to the enumeration as evidence that such power would be limited. See The Feder-alist No. 83, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority."); see also 3 Elliot's Debates, supra, at 553 (Marshall) (explaining that the heads of jurisdiction specified in Article III do not extend so far as to displace the state courts).
209. Justice Rutledge expressed the point colorfully in his concurring opinion in Tidewater: "If [Article III is] correctly read. . . as preventing Congress from unlocking the courthouse door to citizens of the District, it seems past belief that Article I was designed to enable Congress to pick the lock." Tidewater, 337 U.S. at 607-08 (Rutledge, J., concurring). Of course, the Article I powers (necessary and proper included) are enumerated in the text of the Constitution. But the question, for purposes of enumerated powers doctrine, is whether congressional authority is drawn from the text of the relevant enumeration. And when it comes to federal court jurisdiction, the relevant enumeration is located in Article III, Section 2.
210. See supra Part I.
211. See supra Section I.A.
212. See supra Section I.B.
213. By relying on the Article I story to demonstrate that the textual and structural features of the congressional power model of federal jurisdiction are not foreign to our established practice, I invite the criticism that I must defend or justify our practice in connection with Article I before I can rely on it to do real work here. But the elements of our Article I practice on which I focus atten-tion-the vast commerce and spending powers, federal authority to regulate immigration, and foreign affairs-are now deeply entrenched in our constitutional system. Along each of these di-mensions, we are not going back. And this means that, to an extent, the key textual and structural moves that have been used by the courts to underwrite the significant expansion of federal authority have themselves achieved a measure of interpretive regularity. And this, in turn, means that one cannot dismiss the congressional power model of federal jurisdiction out of hand on the ground that it relies on some kind of interpretive impossibility. This is true regardless of whether one approves of what has become of Article I.
214. The Court's about-face on the issue of corporate citizenship and diversity jurisdiction, see supra note 193, likewise evinces the Court's willingness to reshape the Diversity Clause to ac-commodate more expansive federal court jurisdiction. In that scenario, however, the constitutional text is more readily adapted to the relevant cause (understanding corporations to be "citizens" of a state) than is the case in connection with Justice Rutledge's interpretive move (understanding the term "State" to include the District of Columbia). Hence, the corporate citizenship issue is not so much a case of the Court stretching the Diversity Clause itself as it is stretching of the Court's own long established understanding of that Clause.
215. See supra note 114 and accompanying text.
216. See H.R. Rep. No. 94-1487, at 32 (1976) ("In view of the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area, it is important to give foreign states clear authority to remove to a Federal forum actions brought against them in the State courts."); Vazquez, supra note 97, at 1744-45.
217. A famous example-one that involves federal court jurisdiction-is supplied by Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) (upholding a federal statute that withdrew the Supreme Court's appellate jurisdiction in certain habeas cases and stating, "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution . . . ."). But see Caleb Nelson, Judicial Review of Legislative Purpose, 83 N.Y.U. L. Rev. 1784 (2008) (describing changes in the Supreme Court's orientation toward purpose-based review of congres-sional action and emphasizing that such review has become commonplace in modern times).
218. Larry Kramer, What's a Constitution for Anyway? Of History and Theory, Bruce Acker-man and the New Deal, 46 Case W. Res. L. Rev. 885, 920 (1996).
219. See Rosenberg, supra note 97, at 955.
220. See supra note 9. I discuss protective jurisdiction in detail in Part IV.
221. Young, supra note 97, at 1800.
222. Id. at 1798.
223. Id. at 1799.
224. Id. at 1801; see also Goldberg-Ambrose, supra note 97, at 604 (similar). Of course, states are deprived of some measure of control over the interpretation of their own law through the exercise of federal diversity jurisdiction, supplemental jurisdiction, and the application of their law by sister states when choice of law principles require it. But, as Professors Goldberg and Young have emphasized, these devices do not operate in the same systematic fashion as a protective jurisdiction statute might. See id. at 608; Young, supra note 97, at 1801-02. And this argument applies with equal force to the congressional power model of jurisdiction I develop here.
225. Young, supra note 97, at 1798.
226. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
227. Young, supra note 97, at 1800-01.
228. Goldberg-Ambrose, supra note 97, at 604.
229. The Supreme Court has emphasized, in a different context, that state court jurisdiction over federal claims does not pose a serious threat to the uniformity of federal law, in part because federal courts would not be bound by state courts' interpretation of that law and because state judges could be expected to look to federal court precedents for guidance. See Tafflin v. Levitt, 493 U.S. 455, 464-65 (1990). The argument I am developing here simply applies this point to federal court jurisdiction over state-law claims, rather than state-court jurisdiction over federal claims. Of course, where state court interpretation of federal law is at issue, the availability of Supreme Court review provides further protection against any state court interference with federal interests, and there is no analogous protection for state interests when federal courts adjudicate state law claims.
230. At the time the relevant statute was enacted, the law applicable in such cases would have been characterized not as state law, but "general common law." See Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 832 (1824).
231. See supra note 114 and accompanying text.
232. Neither Article III, nor any other part of the Constitution expressly forbids Congress from using federal court jurisdiction as a means of advancing its legitimate regulatory goals, and, as we have seen, see supra Part III.A.1, the argument for allowing Congress to do so relies on an approach to constitutional text and structure that is familiar from our practice under Article I.
233. Young, supra note 97, at 1796-97.
234. See Goldberg-Ambrose, supra note 97, at 582.
235. See, e.g., Bickel & Wellington, supra note 10, at 19-20; Vazquez, supra note 97, at 1764.
236. Some commentators have pressed the greater-includes-the-lesser argument in this context. See, e.g., Bickel & Wellington, supra note 10, at 20-21; Wechsler, supra note 97, at 224-25. Others have rejected it. See, e.g., Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 474 (1957) (Frankfurter, J., dissenting).
237. If the costs, from a state autonomy perspective, of federal displacement of state law are thought to be much greater than the costs of allowing for federal court jurisdiction over state-law claims, then Congress would need to exercise the displacement option relatively infrequently in order for the jurisdictional prohibition to be a net loss for state autonomy purposes.
238. The concurring and dissenting opinions in Tidewater all press this objection. See Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 616 (Rutledge, J., concurring); id. at 628 (Vinson, C.J., dissenting); id. at 648 (Frankfurter, J., dissenting).
239. See, e.g., Honig v. Doe, 484 U.S. 305, 330 (1988) (Rehnquist, C.J., concurring) (arguing that, despite contrary indications in the case law, the constraints of mootness doctrine are not "forced upon us by the case or controversy requirement of Article III"); 13B Charles Alan Wright et al., Federal Practice and Procedure § 3533.1 (3d ed. 2008) (similar); see also, e.g., Fallon et al., supra note 192, at 210-11 (examining ripeness doctrine and questioning whether "considerations of the adequacy of factual framing, fitness of issues for review, and hard-ship to parties [should] be elevated to constitutional stature"); id. at 52 (noting that "[t]he English judicial practice with which early Americans were familiar had long permitted the Crown to solicit advisory opinion from judges" and that "neither the constitutional text nor the discussions at the Constitutional Convention reflected any clear prohibition against advisory opinions").
240. Allen v. Wright, 468 U.S. 737, 750 (1984).
241. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 178 (1992) ("There is absolutely no affirmative evidence that Article III was intended to limit congressional power to create standing."); see also id. at 177 ("[P]eople have standing if the law has granted them a right to bring suit."); William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 223-24 (1988) (arguing that "[i]f a duty is statutory, Congress should have essentially unlimited power to define the class of persons entitled to enforce that duty, for congressional power to create the duty should include the power to define those who have standing to enforce it"). The Supreme Court's decision in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), which invalidated certain applications of the citizen suit provision of the Endangered Species Act, holds otherwise. The Court's subsequent decisions in Federal Election Commission v. Akins, 524 U.S. 11 (1998) and Massachusetts v. EPA, 549 U.S. 497 (2007), take a much more per-missive approach toward the question of when Congress is authorized to create standing to sue.
242. The analogy between the sort of congressional discretion contemplated under the schol-arly accounts of standing doctrine mentioned above, see supra note 240 and accompanying text, and that authorized under the congressional power approach to the Article III enumeration is imperfect. Thus, Professor Sunstein and Judge Fletcher do not contend that Congress is free to override the Constitution's standing requirements; they argue, rather, that Congress has considerable leeway to work within these requirements (since the establishment of a cause of action satisfies them). The congressional power model, in contrast, suggests that Congress may rely on the full sweep of its authority under the Constitution in order to evade the constraints implicit in the Article III enumera-tion. Thus, while both approaches recognize virtually unfettered congressional discretion along the relevant dimension, the conceptual infrastructure undergirding the two models differs.
243. See, e.g., Jesse H. Choper, Judicial Review and the National Political Process 175-184 (1980); Herbert Wechsler, Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 546-58, 560 (1954); see also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985) ("State sovereign interests . . . are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.").
244. See, e.g., Wechsler, supra note 242, at 546.
245. See, e.g., John C. Yoo, The Judicial Safeguards of Federalism, 70 S. Cal. L. Rev. 1311 (1997).
246. See supra note 20; see also United States v. Morrison, 529 U.S. 598, 616 (2000) ("Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legisla-tive grace.").
247. The interests of the executive and judicial branches might be protected, of course, through other structural features of our constitutional system such as judicial review.
248. 517 U.S. 44 (1996); see also Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002); Alden v. Maine, 527 U.S. 706 (1999). But see Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006) (holding that, through the plan of the Convention and the ratification of the Constitution's Bankruptcy Clause in particular, the states surrendered their immunity from suits in bankruptcy to void preferential transfers).
249. Seminole Tribe, 517 U.S. at 72-73.
250. Id. (emphasis added).
251. Id. at 65 (quoting Pennsylvania v. Union Gas Co., 491 U.S. 1, 39 (1989) (Scalia, J., dissenting)).
252. 527 U.S. 706 (1999).
253. Id. at 753.
254. See Seminole Tribe, 517 U.S. at 54.
255. See, e.g., Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1, 61-62 (noting that the message sent by Seminole Tribe "is a bit curious when viewed against a snapshot of today's constitutional terrain" in which the Court "has (at least for the moment) abandoned the effort of National League of Cities v. Usery to limit substantive regulation of the states themselves"); The Supreme Court, 1998 Term-Leading Cases, 113 Harv. L. Rev. 200, 206-07 (1999) (discussing the Court's decision in Alden v. Maine, which held that Congress may not rely on its Article I powers to abrogate states' immunity from suit in state court and taking note of the "theoretical inconsistency" of the Court's conclusion that "the Constitution [preserves] . . . a sphere of sovereign immunity broader than that of state sovereignty").
256. 469 U.S. 528, 552 (1985).
257. Like the cases relating to standing discussed immediately above, the sovereign immunity decisions raise the question why Congress enforces some limitations on the scope of federal court jurisdiction aggressively, while others-such as the enumeration-based limits of Article III, Sec-tion 2-are largely toothless. Of course, haphazardness in the rigor with which different fragments of the Constitution are enforced is not unique to the jurisdictional context. David A. Strauss, Com-mon Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 881 (1996) ("If we are cavalier with the text sometimes, why do we treat it somewhat seriously almost all the time, and extremely seri-ously sometimes?"). And I leave consideration of the Article III permutation of this question for another day.
258. See Mishkin, supra note 97; Wechsler, supra note 97.
259. Wechsler, supra note 97, at 224-25.
260. Id. at 224.
261. Id. at 225.
262. E.g., Goldberg-Ambrose, supra note 97, at 586.
263. In this way, Professor Wechsler's approach toward Article III, Section 2 dovetails with his approach toward judicial enforcement of federalism-based constraints on congressional authority generally. In his famous essay The Political Safeguards of Federalism, Wechsler detailed myriad ways in which states' interest in regulatory autonomy is protected through the political process, Wechsler, supra note 242, at 546-58, and expressed the view that "it is Congress rather than the Court that on the whole is vested with the ultimate authority for managing our federalism," id. at 560. One can see a similar parallel in connection with Justice Jackson's writings about federal power generally and federal judicial power in particular. Thus, the broad conception of congres-sional power to channel cases into the federal courts that we see in Jackson's opinion in Tidewater, see supra text accompanying notes 150-151, is mirrored by his opinion for the Court in Wickard v. Filburn, 317 U.S. 111 (1942), which embraced an expansive conception of Congress's power under the Commerce Clause.
264. E.g., Mishkin, supra note 97, at 190 & n.142; Note, Protective Jurisdiction and Adoption as Alternative Techniques for Conferring Jurisdiction on Federal Courts in Consumer Class Action, 69 Mich. L. Rev. 710, 721 (1971). The Supreme Court, moreover, has squarely rejected the notion that a jurisdictional statute can itself provide the foundation for arising under jurisdiction. See Mesa v. California, 489 U.S. 121, 135-36 (1989); Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480, 496 (1983).
265. E.g., Mishkin, supra note 97, at 190-92.
266. See supra text accompanying notes 68-71.
267. Professor Goldberg wondered whether Wechsler was simply "play[ing] a semantic trick." Goldberg-Ambrose, supra note 97, at 586.
268. Professor Carlos Vazquez developed a related theory of protective jurisdiction in a 2007 article published as part of a symposium celebrating Paul Mishkin's work. See Vazquez, supra note 97. Like Professor Wechsler, Vazquez would recognize virtually unfettered congressional discretion to channel cases into the federal courts in order to advance federal interests. See id. at 1733 ("I conclude that federal claim analysis supports a congressional grant of jurisdiction over any class of cases over which Congress has legislative power."). And like Professor Wechsler, he argues that such broad federal jurisdiction can be situated within the enumerated powers framework of Article III. Vazquez reasons as follows: [I]f Congress has legislative power under Article I, it should be able to "create" federal claims by throwing a federal cloak around an already existing category of claims, declaring them to be federal while specifying that the governing law will remain as before. In other words, Congress should be able to confer jurisdiction by declaring a category of existing claims to be federal claims governed by incorporated state or foreign law. Id. at 1749. It should be clear from the discussion in Part III that I wholeheartedly agree with Vazquez that the scope of Congress's power to create federal jurisdiction ought to be a function of the full sweep of its legislative authority. But it should be equally clear that I see no need for the "incorporation" move. Like Professor Wechsler's claim that a jurisdictional statute may serve as the federal law under which a suit "arises" for purposes of Article III, the incorporation move is a func-tionally empty mechanism-functionally empty because the governing law changes not at all, it is simply relabeled "federal"-for cramming the relevant cases into Article III's Arising Under Clause. And as is true of the Wechsler theory, then, the thinness of the Article III veneer makes one wonder about the utility and necessity of the interpretive endeavor. Cf. Class Action and Other Consumer Protection Procedures: Hearings on H.R. 14931, H.R. 14585, H.R. 14627, H.R. 14832, H.R. 15066, H.R. 15655, and H.R. 15656 Before the Subcomm. on Commerce and Finance of the H. Comm. On Interstate and Foreign Commerce, 91st Cong. 23 (1970) (Letter from Charles L. Black, Jr., Luce Professor of Jurisprudence, Yale Law School, to Rep. Bob Eckhardt, Member of the House of Rep-resentatives (May 27, 1969)) (discussing a suggested amendment to the Class Action Jurisdiction Act which would adopt state law as federal law and remarking, "I firmly adhere to my view . . . that the simple grant of judicial jurisdiction [to federal courts over state-law claims] . . . is, without more, constitutional").
269. Mishkin, supra note 97.
270. See id. at 190.
271. See id. at 187-88.
272. Id. at 192. Professor Mishkin argued that federal bankruptcy jurisdiction fit this mold as well. See id. at 194-95.
273. Id. at 196.
274. See Rosenberg, supra note 97, at 962.
275. See supra text accompanying notes 60-66.
276. United States v. Morrison, 529 U.S. 598, 616 n.7 (2000) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824), for the proposition that "the enumeration [of powers] presupposes something not enumerated"); United States v. Lopez, 514 U.S. 549, 567 (1995) (insisting that upholding the statute under review "would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated").
277. Morrison, 529 U.S. at 617-18.
278. E.g., Lopez, 514 U.S. at 558-59.
279. Morrison, 529 U.S. at 657 (Breyer, J., dissenting) ("If chemical emanations through indirect environmental change cause identical, severe commercial harm outside a State, why should it matter whether local factories or home fireplaces release them?").
280. See Lessig, supra note 19, at 130 (characterizing Lopez as "reject[ing a] textualist reading of the power clauses" (emphasis added)).
281. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (1994).
282. Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand. L. Rev. 953, 964 (1994) (Fallon describes this as "the principle of institutional settlement").
283. See Edward R. Purcell, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America 243-44 (2000).
284. Fallon, supra note 281, at 957.
285. See New York v. United States, 505 U.S. 144, 149 (1992) (characterizing "discerning the proper division of authority between the Federal Government and the States" as "[the] oldest question of constitutional law").
286. See supra Part II.B.
287. See Ackerman, supra note 67, at 259.
288. See supra note 56.
289. As the discussion in Part I makes clear, it is a mistake to think that our practice prior to the New Deal revolution is easily reconciled with a strict enumeration account of Article I. Never-theless, the New Deal is often treated as the moment at which the dam of enumeration burst, and since the question I am grappling with here relates to the place of the Article I enumeration in our collective legal consciousness, it is the content of the conventional account that matters.