The Demise of Hypothetical Jurisdiction in the Federal Courts

Recent years have witnessed a modest but expanding Supreme Court effort to return the national government to its structural first principles.' Foremost among these is that federal power, although vast, is neither inherent nor unbounded, but consists only of that granted by the Constitution. In 1998, the Court remained steadfast to this precept, thwarting yet another attempt by a federal branch to exceed its limited and enumerated constitutional powers. This time, however, the perpetrator was none other than the Article IH judiciary itself. In Steel Co. v. Citizens for a Better Environment, the Court formally denounced the federal court practice of assuming the existence of subject-matter jurisdiction solely to reach the merits of, and then rule against, manifestly unworthy claims.

Often labeled "hypothetical jurisdiction," the now-repudiated practice had gradually infiltrated the decision making of every circuit court of appeals, becoming nothing less than "a familiar tenet" or "settled principle" of federal appellate jurisprudences Federal Government of enumerated powers. As James Madison wrote, 'the powers delegated by the proposed Constitution to the federal government are few and defined.'") (citation omitted)