By Ken Moyes
The question is: Whether the States should have access to immediately challenge the federal government’s enacting of laws and rules that fall outside the limited powers provided to the federal government by the States under the Constitution?
It appears that the federal government created by and empowered by the States has now trumped the collective States in matters of redress as redress pertains to the federal government’s enumerated powers. For a State or States to challenge the federal government’s violation of its enumerated powers, it or they must go to the lowest federal court and get in line just as you or I might have to do. The States created the federal government and empowered it in a limited way for the good of the collective states, yet States are routinely treated by Congress and the supreme Court (supreme is lower case as it is in the Constitution) as having the same status as an individual citizen. Below is an excerpt from the Constitution and one from subsequent federal law.
Our United States Constitution, Article III Section 2, states: “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…”
What is original jurisdiction? “original jurisdiction n. the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.” (Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.)
However, the United States Code (federal law) 28 USC § 1251 – Original jurisdiction; states – see Cornell law:
(a)The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b)The Supreme Court shall have original but not exclusive jurisdiction of:
• All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
• All controversies between the United States and a State;
• All actions or proceedings by a State against the citizens of another State or against aliens.
Why should the States, as the founders of the federal government and having only relinquished some of their powers – providing limited powers to the progeny of the union of the states - be relegated to normal and customary standing in the court system, when matters between the States and the federal government generally deal with sweeping Constitutional issues of an immediate nature?
The relegation of the States to second class status versus the Federal Government began in 1877, when the supreme Court ruled it did not have exclusive original jurisdiction over matters between the states and the federal government, but that inferior courts (known as tribunals in the Constitution) also had original jurisdiction. Since the supreme Court has no Constitutional authority over inferior courts (tribunals), this decision should have been challenged at that time by Congress and the executive branch – it was left unchallenged.
Per the Constitution only Congress can establish and ordain inferior tribunals (courts). At that time and through today, the supreme Court had and has no authority to establish or ordain inferior courts as having original jurisdiction. Subsequently in the late 30′s and early 40′s Congress which ordains and establishes these inferior courts decided to put this into the U.S. Code. Upon seeing this in the U.S. Code, the supreme Court created its rule 17 – original jurisdiction. They then cited U.S. Code, which was based on a supreme Court ruling as the reasoning. The country had now created a circular firing squad.
Now let’s talk about standing.
Definition from Nolo’s Plain-English Law Dictionary: “The right to file a lawsuit or make a particular legal claim. Only a person or entity that has suffered actual injury has standing to seek redress in court. For example, an advocacy group may not file a lawsuit challenging the constitutionality of a statute on its own; there must be a plaintiff who has actually been harmed by the statute.”
While “standing” goes back to the Byzantine Empire and maybe prior, the use of standing in the United States has been defined by the supreme Court.
From the Cornell law website we find this excerpt (…At the Federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law…). Here is another case where the States cannot immediately seek redress against an action that is perceived to be outside the limited powers. Instead, the States have to standby waiting for the federal action to actually cause damage which may affect millions of citizens and billions of dollars, In fact, legal actions taken because the federal government is outside of the limited powers need to be allowed before the federal government’s actions become interwoven with the fabric of the nation. It is an exigent circumstance that only the States can rectify in the Court.
Essentially, what the federal government, including the supreme Court, has done is find ways to preempt the States and preempt their limited powers. Should not the States as the founders of the federal government in a limited way, be given “super-standing” in all matters related to the powers of the federal government under the Constitution, as the grantor’s of that power? There is precedent that Congress has modified “standing” under federal law in the past.
We need one law, one amendment to the U.S. Code, granting the states permanent and perennial original jurisdiction in the supreme Court. This is as provided under the Constitution. We need to prohibit inferior courts from hearing any case or action where a State or States challenge the limited and enumerated powers of the federal government. On behalf of the States, we also need to eliminate the need for standing created by damages, by providing the States with super-standing in all such matters – meaning they can bring a challenge at any time after enactment on behalf of their citizens. In the case of the States, we can modify standing to be based upon upon enacted law or regulation.
The Supreme Court might continue to rule that inferior courts also have original jurisdiction with the States, in violation of the Constitution, but the federal inferior courts will not be able to act, under federal law. Remember that Congress establishes and ordains the inferior courts and the supreme Court does not. Thus the supreme Court will be forced to hear such actions as they will be the only remaining court in the land with original jurisdiction on matters between the States and the federal government in matters of enumerated powers.
Again the question is: Whether the States should have access to immediately challenge the federal government’s enacting of laws and rules that fall outside the limited powers provided to the federal government by the States under the Constitution? I think yes!