More jurisdictionality in SCOTUS

As I've written previously, the seven years of the Roberts Court have been a boon for civil procedure, particularly as to my obsession over jurisdictionality and the jurisdiction/merits line. This term alone could see the Court make significant strides in recognizing the many areas in which jurisdiction and merits are often allowed to overlap and trying to clear that out. Some of the cases are obvious, such as Kiobel v. Royal Dutch Petroleum, where the Court granted cert on the precise question of whether corporate civil tort liability under the Alien Tort Statute is a question of jurisdiction or merits (the Court should find it to be the latter). This is one of the cases I'll be using in my Fed Courts oral arguments next week.

But I also have been reading argument transcripts this week in which the justices' questions recognize overlap, recognize how things should be properly characterized, and are looking for a way to do it. Take two examples.

One is M.B.Z. v. Clinton, which involves a federal statute permitting U.S. citizens born in Jerusalem to list their place of birth as "Israel" on their passports, a practice the State Department opposes because of its effect on U.S.-Palestinian relatiosns. The D.C. Circuit rejected the claim on political question grounds, so that jurisdictional question is before the Court before it gets to the validity of the statute. At argument, several justices noted the overlap on the two issues: The merits argument against the statute is that it infringes on the President's exclusive power to recognize foreign sovereigns, while the political question argument turns, at least in part, on whether there has been a textual commitment of the issue to another branch. In other words, if the President has exclusive recognition authority, then there is a textual commitment, making this non-justiciable, and the statute is invalid. Jonathan Siegel several years ago described noted the frequency with which courts over-used political question language anytime they considered the validity of an exercise of power. So perhaps the justices are beginning to catch up to the merits nature of many justiciability doctrines (although it seems to me there is a difference between a textual commitment to a branch other than the courts for Baker v. Carr/political question purposes and exclusive executive authority as a limit on congressional power for merits purposes) and perhaps they may elaborate on where the distinctions should lie.

A second example is Mims v. Arrow Financial Servs. The case involves the Telephone Consumer Protection Act, which prohibits certain telemarketing calls, then provides that "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State" a civil action for various remedies. One focus of the argument, and the ultimate key to the decision, is the difference between the cause of action (which everyone understands as a merits issue) and the granting or withdrawing of jurisdiction (which obviously is a jurisdiction issue). Much depends on the "otherwise permitted" language. If the phrase limits the cause of action, then state law limits the scope of the right to sue, regardless of the court. If the phrase limits state court jurisdiction, the cause of action is available to be brought in another court that does not have such limits, namely federal district court, which under § 1331 should be able to hear any cause of action created by federal law. So everything depends on how the Court characterizes different parts of the statute and how it explains those characterizations.

I could have a lot to write about this spring.