Intergovernmental Federalism Disputes

Constitutional litigation is increasingly being wagedbetween governments, in both suits between a state andthe United States, and suits between two or more states.The jurisdictionof the Federalcourts to hear such suits,however, is disputed. The Supreme Court's cases arefamously difficult to reconcile, with some denyingjurisdiction and other seemingly identical casesaddressing the merits without discussing jurisdiction.Some scholars have argued that intergovernmentaldisputes over political jurisdiction historically are notjusticiableand that it is constitutionally illegitimate forthe Court to hear them. Recently, some scholars haveargued that the Court should hear such cases, but haveassumed their historical illegitimacy and have insteadargued normatively that the realities of our modernsystem weigh in favor of updated justiciabilitystandards.This Article analyzes the constitutional history ofwhat it calls "Intergovernmentalfederalism disputes." Itargues that the Constitutiongrants federal courts powerto hear certain intergovernmental controversiesregarding the line dividing their respective regulatoryjurisdictions. This power, however, was not historicallya common-law or equity court power.

In the colonialsystem, it was a power exercised exclusively by the King'sPrivy Council, and then by Congress in theConfederation Period. Early drafts of the Constitution granted this power to the Senate, before ultimatelygranting it to the Supreme Court. This Article arguesthat it is thus historically legitimate for federal courts tohear such controversies, so long as they adhere to thehistorical model of claims that a governing entity hasexclusive jurisdiction to regulate a particular territory,person, activity, or object. This historical theory alsohelps to explain the Supreme Court's previouslyirreconcilablecases.