Orlando, Floridawww.lowndes-law.com
Is It Federal or Is It Not?
The Purview of Federal Jurisdiction
© 2011 Lowndes, Drosdick, Doster, Kantor & Reed, P.A. All Rights Reserved
By: Richard S. Dellinger, Esq.,Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
Orlando, Florida | www.lowndes-law.com
Timeline
• 1764-1774 Stamp Act, Quartering Act, Intolerable Acts
• July 4, 1776 Declaration of Independence
• March 1, 1781 Articles of Confederation
• Sept. 3, 1783 End Revolutionary War
• 1787 Constitutional Convention
Orlando, Florida | www.lowndes-law.com
Federalists
• Advocated for a strong central government
• Federalist Papers - Anonymous Op-Eds
• James Madison, Alexander Hamilton, John Jay
Orlando, Florida | www.lowndes-law.com
Anti-Federalists
• Advocated for state’s powers and individual rights
• Brutus essays
• Patrick Henry, Samuel Adams, George Mason, James Monroe
Orlando, Florida | www.lowndes-law.com
The Supremacy Clause
• This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and Thing in the Constitution or Laws of any State to the Contrary notwithstanding
» (U.S. Constit. Art. VI)
Orlando, Florida | www.lowndes-law.com
Judicial Power-Article III
• The judicial power of the United States, shall be vested in one supreme court, and in such inferior Courts as Congress may from time to time ordain and establish.
» (U.S. Constit. Art III, Sec. 1)
Orlando, Florida | www.lowndes-law.com
Congressional Input-Article II
• The Congress shall have power . . . To constitute Tribunals inferior to the Supreme Court. . .
(U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Executive Input-Article I
• [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . Judges of the supreme Court and all other Officers of the United States . . .
» (U.S. Const. Art. I, Sec. 2)
Orlando, Florida | www.lowndes-law.com
State v. State/ Art. III
• The judicial power shall extend . . . –to Controversies between two or more States . . .
(U.S. Const. Art. III, Sec. 2)
Orlando, Florida | www.lowndes-law.com
State v. Citizen/ Art. III
• The judicial power shall extend . . . –to controversies between a State and Citizens of another State .
(U.S. Const. Art. III, Sec. 2)
Orlando, Florida | www.lowndes-law.com
Citizen v. Citizen/ Art. III (Different States)
• The judicial power shall extend . . . –to Controversies between Citizens of different States.
(U.S. Const. Art. III, Sec. 2)
Orlando, Florida | www.lowndes-law.com
Citizen v. Citizen Congressional Limit
Diversity of Jurisdiction
• Defendants not resident of forum state
• More than $75,000 of issue
28 USC 1332
Orlando, Florida | www.lowndes-law.com
Admiralty/ Article III
• The judicial power shall extend . . . –to all Cases of admiralty and maritime jurisdiction . . .
(U.S. Const. Art. III, Sec. 2)
Orlando, Florida | www.lowndes-law.com
Arising Under Constitution/ Article III
• The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority-
(U.S. Const. Art. III, Sec. 2)
Orlando, Florida | www.lowndes-law.com
Cases Arising Under The Constitution (42 U.S.C. 1983)
• Claim of violation of First Amendment right to free speech (protester cases)
• Claim of violation of Eighth Amendment prohibition against cruel and unusual punishment (inmate cases)
• Claim of violation of equal protection rights by discrimination based on race, sex, religion, national origin, physical disability and age (employment cases)
Orlando, Florida | www.lowndes-law.com
Employment Cases/ Commerce Clause
• Discrimination claims arise under equal protection clause of the Constitution
• Federal Laws provide even more protection:º Age Discrimination in Employment Act
(ADEA)º Americans with Disabilities Act (ADA)º Civil Rights Acts
Orlando, Florida | www.lowndes-law.com
Arising Under Laws/ Article III
• The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority-
(U.S. Const. Art. III, Sec. 2)
Orlando, Florida | www.lowndes-law.com
Immigration/ Art. I
• The Congress shall have power . . . To establish a uniform Rule of Naturalization . .
(U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Bankruptcy/ Art. I
• The Congress shall have power . . . To establish . . Uniform Laws on the subject of Bankruptcies throughout the United States
• Title 11 US Code, Chapters 7, 11, 13
(U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Patent, Trademark, Copyright/ Art. I
• The Congress shall have power . . . To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . .
(U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Admiralty/ Art. I
• The Congress shall have power . . . To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations. . .
(U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Counterfeiting/ Art. I
• The Congress shall have power . . . To coin Money, regulate the Value thereof, and of foreign coin . . .
• (U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Tax Evasion/ Art. I
• The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . .
• (U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Commerce Clause/ Art. I
• The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
(U.S. Const. Art. I, Sec. 8)
Orlando, Florida | www.lowndes-law.com
Necessary and Proper Clause
• [The Congress shall have Power] . . .to make all laws which shall be necessary and proper for carrying into execution of the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States. . .
» (U.S. Const. Art. I, Sec. 8, para. 18.)
Orlando, Florida | www.lowndes-law.com
Commerce/ Necessary and Proper Exercise
• Ponzi Schemes and Insider Trading
• Regulating Controlled Substances
• Internet Pornography Distribution
• Regulating Weapons’ Sales
• Mandating Purchase of Health Care
Orlando, Florida | www.lowndes-law.com
State or Federal?
• Florida vs. Georgia over water rights on border.
Orlando, Florida | www.lowndes-law.com
State of Federal?
• Divorce, child custody, and distributing property.
Orlando, Florida | www.lowndes-law.com
State or Federal?
• Murder, Rape.
• Murder of a Federal Official.
Orlando, Florida | www.lowndes-law.com
State or Federal?
• iPhone vs. Blackberry technology dispute.
Orlando, Florida | www.lowndes-law.com
State or Federal?
• Selling hamburgers with McDonalds Arches without permission.