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Publication Date

2018

Abstract

Constitutional litigation is increasingly being waged
between governments, in both suits between a state and
the 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 are
famously difficult to reconcile, with some denying
jurisdiction and other seemingly identical cases
addressing the merits without discussing jurisdiction.
Some scholars have argued that intergovernmental
disputes over political jurisdiction historically are not
justiciableand that it is constitutionally illegitimate for
the Court to hear them. Recently, some scholars have
argued that the Court should hear such cases, but have
assumed their historical illegitimacy and have instead
argued normatively that the realities of our modern
system weigh in favor of updated justiciability
standards.
This Article analyzes the constitutional history of
what it calls "Intergovernmentalfederalism disputes." It
argues that the Constitutiongrants federal courts power
to hear certain intergovernmental controversies
regarding the line dividing their respective regulatory
jurisdictions. This power, however, was not historically
a common-law or equity court power. In the colonial
system, it was a power exercised exclusively by the King's
Privy Council, and then by Congress in the
Confederation Period. Early drafts of the Constitution

granted this power to the Senate, before ultimately
granting it to the Supreme Court. This Article argues
that it is thus historically legitimate for federal courts to
hear such controversies, so long as they adhere to the
historical model of claims that a governing entity has
exclusive jurisdiction to regulate a particular territory,
person, activity, or object. This historical theory also
helps to explain the Supreme Court's previously
irreconcilablecases.

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