Gil Seinfeld (University of Michigan Law School) has posted Article I, Article III, and the Limits of Enumeration (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.
And from the text:
The case law examined in Part II.B rests on a congressional power theory of federal jurisdiction.194 At the core of the theory lies the notion that, “[a] grant of jurisdiction is one mode by which Congress may assert its regulatory powers;”195 it is “simply one tool at Congress’ disposal in effectuating article I interests.”196 From this perspective, the legitimacy of a jurisdictional enactment turns on whether the parties or transactions it regulates are proper subjects of Congress’s attention. And this, of course, is determined by reference to the full sweep of congres- sional power, not the categories delineated in Article III.
From a textual perspective, jurisdictional statutes may thus be characterized as straightforward exercises of particular congressional powers. The conferral of jurisdiction on the federal courts in suits against foreign sovereigns, for example, might be justified by reference to Article I, § 8, clause 3, which authorizes Congress to regulate com- merce with foreign nations; or, in some circumstances, it might be understood as an exercise of Congress’s power (granted by Article I, § 8, clause 10) to define offenses against the law of nations.197 The estab- lishment of federal court jurisdiction in suits to which a citizen of the District of Columbia is a party might be rooted in Congress’s power “[t]o exercise exclusive legislation in all cases” concerning the Dis- trict.198 And the conferral of jurisdiction on the federal courts in cases to which the U.S. Bank is a party might be classified as an exercise of Con- gress’s power to regulate interstate and foreign commerce.199 In each of these cases, moreover, the Necessary and Proper Clause supplies addi- tional textual support for Congress’s jurisdiction-conferring authority (that is, Congress might deem the establishment of federal court jurisdic- tion necessary and proper to the accomplishment of legitimate federal objectives).200
