skip navigation

CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next

When a Case Arises Under.—The 1875 statute and its present form both speak of civil suits “arising under the Constitution, laws, or treaties of the United States,”656 the language of the Constitution. Thus, many of the early cases relied heavily upon Chief Justice Marshall’s construction of the constitutional language to interpret the statutory language.657 The result was probably to accept more jurisdiction than Congress had intended to convey.658 Later cases take a somewhat more restrictive course.

Determination whether there is federal question jurisdiction is made on the basis of the plaintiff’s pleadings and not upon the response or the facts as they may develop.659 Plaintiffs seeking access to federal courts on this ground must set out a federal claim which is “well–pleaded” and the claim must be real and substantial and may not be without color of merit.660 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the[p.715]action.661 But what exactly must be pleaded to establish a federal question is a matter of considerable uncertainty in many cases. It is no longer the rule that when federal law is an ingredient of the claim, there is a federal question.662

Many suits will present federal questions because a federal law creates the action.663 Perhaps Justice Cardozo presented the most understandable line of definition, while cautioning that “[t]o define broadly and in the abstract ‘a case arising under the Constitution or laws of the United States’ has hazards [approaching futility].”664 “How and when a case arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. . . . The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. . . . A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto. . . .665

It was long evident, though the courts were not very specific about it, that the federal question jurisdictional statute is and always was narrower than the constitutional “arising under” jurisdictional standard.666 Chief Justice Marshall in Osborn was interpreting the Article III language to its utmost extent, but the courts sometimes construed the statute equivalently, with doubtful results.667


Removal From State Court to Federal Court.—A limited right to “remove” certain cases from state courts to federal courts was granted to defendants in the Judiciary Act of 1789,668 and from then to 1872 Congress enacted several specific removal statutes, most of them prompted by instances of state resistance to the enforcement of federal laws through harassment of federal officers.669 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by either party, subject only to the jurisdictional amount limitation.670 The present statute provides for the removal by a defendant of any civil action which could have been brought originally in a federal district court, with no diversity of citizenship required in “federal question” cases.671 A special civil rights removal statute permits removal of any civil or criminal action by a defendant who is denied or cannot enforce in the state court a right under any law providing for equal civil rights of persons or who is being proceeded against for any act under color of authority derived from any law providing for equal rights.672

The constitutionality of congressional provisions for removal was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction,673 and a later Court saw it as an indirect mode of exercising original jurisdiction and upheld its constitutionality.674 In Tennessee v. Davis,675 which involved a state attempt to prosecute a federal internal revenue agent who had killed a man while seeking to seize an illicit distilling apparatus, the Court invoked the right of the National Government to defend itself against state harassment and restraint. The power to provide for removal was discerned in the necessary and proper clause authorization to Congress to pass laws to carry into execution the powers vested in any other department or officer,[p.717]here the judiciary.676 The judicial power of the United States, said the Court, embraces alike civil and criminal cases arising under the Constitution and laws and the power asserted in civil cases may be asserted in criminal cases. A case arising under the Constitution and laws “is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defence of the party, in whole or in part, by whom they are asserted. . . .

“The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since. The Judiciary Act of September 24, 1789, was passed by the first Congress, many members of which had assisted in framing the Constitution; and though some doubts were soon after suggested whether cases could be removed from State courts before trial, those doubts soon disappeared.”677 The Court has broadly construed the modern version of the removal statute at issue in this case so that it covers all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.678 Other removal statutes, notably the civil rights removal statute, have not been so broadly interpreted.679


656 28 U.S.C. Sec. 1331 (a). The original Act was worded slightly differently.
657 Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738 (1824). See also Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 379 (1821).
658 C. Wright, Handbook of the Law of Federal Courts (St. Paul: 4th ed. 1983), Sec. 17.
659 See generally Merrill Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983).
660 Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 576 (1904); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Binderup v. Pathe Exchange, 263 U.S. 291, 305–308 (1923). If the complaint states a case arising under the Constitution or federal law, federal jurisdiction exists even though on the merits the party may have no federal right. In such a case, the proper course for the court is to dismiss for failure to state a claim on which relief can be granted rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). Of course, dismissal for lack of jurisdiction is proper if the federal claim is frivolous or obviously insubstantial. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933).
661 Louisville & N.R. Co. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974).
662 Such was the rule derived from Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986).
663 American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). Compare Albright v. Teas, 106 U.S. 613 (1883), and People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), with Feibelman v. Packard. 109 U.S. 421 (1883), and The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913).
664 Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936).
665 Id., 112–113. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See also J. I. Case Co. v. Borak, 377 U.S. 426 (1964): Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).
666 For an express acknowledgment, see Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n. 51 (1959).
667 E.g., Pacific Railroad Removal Cases, 115 U.S. 1 (1885), and see id., 24 (Chief Justice Waite dissenting).
668 Sec. 12, 1 Stat. 79 .
669 The first was the Act of February 4, 1815, 8, 3 Stat. 198 . The series of statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405–406 (1969), and in H. Hart & H. Wechsler, op. cit., n.250, 1192–1194. See 28 U.S.C. §§ 1442 , 1442a.
670 Act of March 3, 1875, Sec. 2, 18 Stat. 471 . The present pattern of removal jurisdiction was established by the Act of March 3, 1887, 24 Stat. 552 , as amended, 25 Stat. 433 .
671 28 U.S.C. Sec. 1441 .
672 28 U.S.C. Sec. 1443 .
673 Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 347–351 (1816). Story was not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments.
674 Chicago & Nw. Ry. Co. v. Whitton’s Administrator, 13 Wall. (80 U.S.) 270 (1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 4 Wall. (71 U.S.) 411, 429–430 (1867); The Mayor v. Cooper, 6 Wall. (73 U.S.) 247 (1868).
675 100 U.S. 257 (1880).
676 Id., 263–264.
677 Id., 264–265.
678 Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute’s plain meaning. International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72 (1991).
679 Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 (1975).
Article III -- Table of ContentsPrev | Next