A New Arizona Court Wrinkle

[Pooky 3,825]

ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial

By Publius Huldah Thursday, July 29, 2010

1. Does anyone read the U.S. Constitution these days? American lawyers don’t read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.

Article III, Sec. 2, clause 2 says:

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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…

“Original” jurisdiction means the power to conduct the “trial” of the case (as opposed to hearing an appeal from the judgment of a lower court). You all know quite well what a “trial” is - you see them all the time on TV shows: Perry Mason, Boston Legal, The Good Wife, etc. Witnesses testify and are cross-examined, etc.

The style of the Arizona case shows quite clearly that the named defendants are:

State of Arizona; and Janice K. Brewer,

Governor of the State of Arizona, in her

Official Capacity, Defendants.

Judge Susan R. Bolton has no more authority to preside over this case than do you

See where it says, “State of Arizona”? And “Janice K. Brewer, Governor of the State of Arizona, in her official Capacity”? THAT (plus Art. III, Sec. 2, clause 2) is what gives the US Supreme Court “original Jurisdiction”, i.e., jurisdiction to conduct the trial of this case. THAT is what strips the federal district court of any jurisdiction whatsoever to hear this case. Judge Susan R. Bolton has no more authority to preside over this case than do you (unless you are a US Supreme Court justice).

In Federalist No. 81 (13th para), Alexander Hamilton commented on this exact provision of Art. III, Sec. 2, clause 2:

...Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal….[boldface added, caps in original]

Yet Attorney General Eric Holder filed the case in a court which is specifically stripped of jurisdiction to hear it!

2. So! Counsel for the State of Arizona should consider:

a. File a Petition for Removal before federal district court Judge Susan R. Bolton demanding that the case be removed to the Supreme Court on the ground that under Art. III, Sec. 2, clause 2, US Constitution, only the Supreme Court has jurisdiction to conduct the trial of this case.

2. If Judge Bolton denies the Petition for Removal, file a Petition for Writ of Mandamus in the Supreme Court asking that court to order Judge Bolton to transfer the case to the Supreme Court.

A Petition for Writ of Mandamus is an old common-law “extraordinary writ”: It asks a court to ORDER a lower court or other public official to something which it is its duty to do. In Kerr v. US District Court for Northern District of California (1976), the Supreme Court said, respecting the propriety of issuing writs of mandamus:

....the fact still remains that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.”...(para 13)

When a federal district court judge presides over a case which the Constitution specifically prohibits her from hearing, and even issues a ruling enjoining the enforcement of a State Law, then that federal district court judge usurps power. She is specifically stripped - by Art. III, Sec. 2, clause 2 - of jurisdiction to preside over the case against the STATE of Arizona and against THE GOVERNOR of the STATE of Arizona.

For procedures for filing the Petition for Writ of Mandamus, see Supreme Court Rule 20.

3. Now, let us examine a hurdle before us: For a very long time, as PH continually points out, Congress and the federal courts have ignored the Constitution. Congress has made innumerable laws which exceed the scope of the legislative powers delegated to it, and the supreme Court has applauded such usurpations!

But respecting the judicial power of the federal courts, Congress has made a law which directly contradicts Art. III, Sec. 2, clause 2 of Our Constitution! That pretended law is 28 USC § 1251:

(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:

(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;

(2) All controversies between the United States and a State;

(3) All actions or proceedings by a State against the citizens of another State or against aliens. [emphasis added].

Do you see what this pretended “law” purports to do? It purports to say that lawsuits against States can be tried in federal district courts!

But Article III, Sec. 2, clause 2 says that in “ALL” Cases in which a State shall be Party, the supreme Court “SHALL” have original jurisdiction (i.e., the supreme Court is to conduct the trial). In Our Constitution, We delegated to the supreme Court alone the authority to conduct the trials of cases in which States are a party. We most manifestly did NOT grant that power to inferior tribunals. And Congress may not alter, by any pretended “law”, Our grant of power which was to the supreme Court alone.

The Federalist Papers were written to explain the proposed Constitution to the People and to induce them to ratify it. For this reason, the Federalist is the most authoritative commentary we have on the original intent of the Constitution. The States understood, before their delegations ratified the Constitution, that if they were ever sued by the new federal government, their case would be tried before the Supreme Court! As noted above, Hamilton said, respecting suits against States:

…In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal…

Congress may not unilaterally change the rules after the fact!

Article V sets forth the procedures for amending the Constitution. Note that the 11th Amendment (ratified 1795) was ratified to reduce the Art. III, Sec. 2, clause 1 Jurisdiction of the federal courts. If it is desired to extend to federal district courts the judicial Power to preside over cases in which a State is a party, then it can only be done by constitutional amendment.

In Federalist No. 78 (10 para), Alexander Hamilton says:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis added]

Congress may not amend Our Constitution by making a “law”. Any such pretended “law” is void.

4. Article IV, Sec. 4, requires the federal government to protect each of the States against invasion.Not only is the Obama regime refusing to perform this specific Constitutional duty - it seeks to prohibit the Sovereign STATE of Arizona from defending itself! This lawlessness on the part of the Obama regime is unmatched in the history of Our Country.

Article Link

It seems, if the argument in the article holds true, that both Attorney General Eric Holder and Judge Susan Bolton have acted in either ignorance, or contravention, of the Constitution. Which is ironic, since the main argument put up by those arguing against AZ SB 1070 is that it is Unconstitutional.

Who said law was easy?

[Darnell 8,479]

it may be that they sought guidance from the clerk of the supreme court, first, before going on with the 'local trial'.

Otherwise, ya, it's yet another mess, ya?

[Pooky 3,825]

it may be that they sought guidance from the clerk of the supreme court, first, before going on with the 'local trial'.

Otherwise, ya, it's yet another mess, ya?

I think you give Eric "I'm against the Law but I haven't read it yet" Holder too much credit. I doubt this wrinkle even occurred to him.

The whole thing is a mess

[one...two...tree 2,762]

Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand...

To learn more about the original intent of the Constitution and The Federalist Papers, join the Constitution Study Groups at Tea Party Nation or Smart Girl Politics.

Publius Huldah and her children,

Hamilton, Madison, Jay, and Fluffy

Yep...figures.

[Pooky 3,825]

Yep...figures.

Ah, our leading defender of the Constitution is lost for a decent counter-argument, so once again he makes a comment about the author of the piece, instead of trying to argue the content with civility. Why am I not surprised?

The Constitution is apolitical. If you are going to stand up for it, then stand up for it despite the politics, not because of it. Anything else is disingenuous.

[I AM NOT THAT GUY 5,715]

Not surprised. Progressives don't like the US Constitution the way it is written.

[Obama 2012 1,714]

technically speaking in such a case, Governor Brewer can order authorities to ignore the ruling of the judge and proceed until Mr. Holder files with the Supreme Court and then they can so choose to pass it off to an inferior court first.

[Ban Hammer 13,469]

Not surprised. Progressives don't like the US Constitution the way it is written.

[Pooky 3,825]

technically speaking in such a case, Governor Brewer can order authorities to ignore the ruling of the judge and proceed until Mr. Holder files with the Supreme Court and then they can so choose to pass it off to an inferior court first.

I don't think the Supreme Court can pass it off to a lower court. The way I understand the author's point is that the Supreme Court is the only court with the authority to conduct the trials of cases in which States are a party.

[I AM NOT THAT GUY 5,715]

technically speaking in such a case, Governor Brewer can order authorities to ignore the ruling of the judge and proceed until Mr. Holder files with the Supreme Court and then they can so choose to pass it off to an inferior court first.

I am reminded of a similar ruling against the founder of the Democratic Party, in which Andrew Jackson was reported to have said, "John Marshall has made his decision, now let him enforce it!"

That's not a donkey, it's a Jackass.

[Obama 2012 1,714]

I don't think the Supreme Court can pass it off to a lower court. The way I understand the author's point is that the Supreme Court is the only court with the authority to conduct the trials of cases in which States are a party.

letter b on the article says though: The Supreme Court shall have original but not exclusive jurisdiction of

That tells me they can let a lower court hear the case. However it also says in the way I read it, that the SCOTUS must be the one to allow the lower court to hear the case..

[Pooky 3,825]

letter b on the article says though: The Supreme Court shall have original but not exclusive jurisdiction of

That tells me they can let a lower court hear the case. However it also says in the way I read it, that the SCOTUS must be the one to allow the lower court to hear the case..

But the author contends that 28 USC § 1251, of which this clause is a part, is a law passed by Congress which directly contradicts Art. III, Sec. 2, clause 2 of The Constitution. The author then states ...

Article V sets forth the procedures for amending the Constitution. Note that the 11th Amendment (ratified 1795) was ratified to reduce the Art. III, Sec. 2, clause 1 Jurisdiction of the federal courts. If it is desired to extend to federal district courts the judicial Power to preside over cases in which a State is a party, then it can only be done by constitutional amendment.

In Federalist No. 78 (10 para), Alexander Hamilton says:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis added]

Congress may not amend Our Constitution by making a “law”. Any such pretended “law” is void.

... so contending that the clause you quoted and the law of which is a part, is void.

Therefore, the Supreme Court is the only court that can hear this case, under The Constitution.

[one...two...tree 2,762]

Ah, our leading defender of the Constitution is lost for a decent counter-argument, so once again he makes a comment about the author of the piece, instead of trying to argue the content with civility. Why am I not surprised?

The Constitution is apolitical. If you are going to stand up for it, then stand up for it despite the politics, not because of it. Anything else is disingenuous.

You're using a RWN as an authority on constitutionality, but then say the constitution is apolitical.

As for her argument - its laughable.

The district courts exercise original jurisdiction over—that is, they are empowered to conduct trials in—the following types of cases:

• Civil actions arising under the Constitution, laws, and treaties of the United States;^[8]
• Certain civil actions between citizens of different states;^[9]
• Civil actions within the admiralty or maritime jurisdiction of the United States;^[10]
• Criminal prosecutions brought by the United States;^[11]
• Civil actions in which the United States is a party;^[12] and
• Many other types of cases and controversies^[13]

For most of these cases, the jurisdiction of the federal district courts is concurrent with that of the state courts. In other words, a plaintiff can choose to bring these cases in either a federal district court or a state court. Congress has established a procedure whereby a party, typically the defendant, can "remove" a case from state court to federal court, provided that the federal court also has original jurisdiction over the matter. For certain matters, such as intellectual property disputes and prosecutions for federal crimes, the jurisdiction of the district courts is exclusive of that of the state courts.^[14]

^[/url]

This is about as ridiculous as the Orly Taitz and the Birther Movement. Oh brother.

[one...two...tree 2,762]

I am reminded of a similar ruling against the founder of the Democratic Party, in which Andrew Jackson was reported to have said, "John Marshall has made his decision, now let him enforce it!"

John Marshal - one of the most forceful dissenters in the court's history and its outstanding liberal justice. Good to see you recognize the merits of progress, Bill. If only you knew your head from your tail, you'd start to make sense.

[luckytxn 2,265]

letter b on the article says though: The Supreme Court shall have original but not exclusive jurisdiction of

That tells me they can let a lower court hear the case. However it also says in the way I read it, that the SCOTUS must be the one to allow the lower court to hear the case..

Appellate jurisdiction is the power of a court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right. Depending on the type of case and the decision below, appellate review primarily consists of: an entirely new hearing (a trial de novo); a hearing where the appellate court gives deference to factual findings of the lower court; or review of particular legal rulings made by the lower court (an appeal on the record).

The supreme court is the only ones that will be allowed to hear the appeals and HAS to listen to an appeal and not hand it off to a inferior court to decide.