10/14/2019

Prevalent Rights Theory
Andrew Hyman

Professor Michael Rappaport posted here on October 10 in favor of the view that the Privileges or Immunities (PI) Clause protects “rights that are prevalent throughout the United States at a particular time.  To determine what those rights are, one must look at what rights the states . . . protect.”  Mike goes on to say that there are two versions of this view: a static view that relies upon what “the great majority of states or virtually all states” protected as of 1868, versus a similar but dynamic view that allows “the great majority of states or virtually all states” to add further rights over time if they realize those rights need protection.
 
I am not sure whether Mike thinks states could subtract rights over time after recognizing a mistake, or whether a state could protect a right while deciding not to influence or compel any other state to do likewise.  I am also unsure why he excludes federal practice and includes only state practice as factors in determining what the rights of federal citizenship are.  In any event, the prevalent rights theory that Mike describes is an interesting theory, and I am pretty much supportive of the dynamic version of it, so long as “the great majority of states or virtually all states” means the supermajorities prescribed by Article V of the Constitution.  In other words, I think the dynamic theory of prevalent rights is already embodied in Article V of the Constitution, and not in the Fourteenth Amendment.
 
Congressman John Bingham addressed this matter in February of 1866, while discussing his initial draft of the PI Clause:
 
It is not to transfer the laws of one State to another State at all. It is to secure to the citizen of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.
 
To me, the language of the final PI Clause, and its placement immediately after the Citizenship Clause, reflect what Bingham said in this quote.  And that makes perfect sense, because this quote from Bingham was an effort to placate opponents of his first draft, and so there would have been no reason for him to later backtrack from this quote.
 
More generally, a very longstanding rule of interpretation is that laws should be construed, if possible, so that they do not conflict with each other.  This rule applied in England for centuries, and Hamilton emphasized in The Federalist #78 that it applies in this country when considering the constitutionality of statutes.  Does this rule merely mean that a statute must be construed to avoid conflict with the Constitution, or does it also mean that the Constitution itself should be construed to avoid conflict with as many statutes as possible?  I think the latter must be true at least in cases of first impression, and probably to some extent in other cases as well.  It is an additional reason to confine the Privileges or Immunities Clause to the work it most clearly does: i.e. striking down state statutes that violate federal rights enumerated in the Constitution.

February Originalism Works-in-Progress Conference in San Diego: Papers Announced
Michael Ramsey

The Center for the Study of Constitutional Originalism at the University of San Diego Law School has announced the papers and commentators for the Eleventh Annual Originalism Works-in-Progress Conference in February 2020.  Here they are:

Stephanie Barclay (Brigham Young), Evolving Constitutional Remedies and Religious Exemptions

            Commentator: John Harrison (Virginia)

Will Baude (Chicago) & Stephen Sachs (Duke), The Misunderstood Eleventh Amendment

            Commentator: Jim Pfander (Northwestern)

Jamal Greene (Columbia), Rereading the Bill of Rights

            Commentator: Randy Barnett (Georgetown)

Stephen Griffin (Tulane), Optimistic Originalism Meets the Unfortunate Nineteenth Century

            Commentator: Michael McConnell (Stanford)

Rick Hills (NYU), Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide

            Commentator: John McGinnis (Northwestern)

Julian Davis Mortenson (Michigan), The Executive Power Clause

            Commentator: Ilan Wurman (Arizona State)

Seth Barrett Tillman (Maynooth) & Josh Blackman (South Texas), Offices “of,” “under,” and “under the authority” of the United States

            Commentator: John Mikhail (Georgetown)

10/13/2019

Eric Segall: The Concession that Dooms Originalism
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted The Concession that Dooms Originalism: A Response to Professor Lawrence Solum (George Washington University Law Review On-Line, forthcoming) (17 pages).  Here is the abstract:

This essay responds to a recent article by Professor Lawrence Solum in the Northwestern University Law Review which describes alleged differences between Originalism and Living Constitutionalism. I argue that even under Solum's own criteria, and his specific discussion of and critique of my work, there is no meaningful difference between Originalism and Living Constitutionalism, and this merger is important for current political and legal debates about the proper role for the Supreme Court in our system of government.

The original promise of Originalism was that only by combining strong judicial deference with the search for original intent or meaning could judges be meaningfully constrained when resolving many of our country’s most difficult social, political, and legal issues. As more and more Originalists drop the deference aspect of the theory, however, and tell judges to apply the original meaning of the constitutional text differently as relevant facts (and values) change, then judicial discretion will be maximized. Whereas most Living Constitutionalists concede judges inevitably have that discretion, Originalists today still often claim that only their theory can limit the power of runaway federal judges. That claim, however, is simply false given the wide swath of discretion judges have under current originalist theory to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified.

The only meaningful theory of constitutional interpretation that can in practice privilege the Constitution's original meaning is one which includes strong judicial deference to other government officials.

10/12/2019

Calvin TerBeek on Justice Gorsuch and Lee Strang on Originalism
Michael Ramsey

At The New Rambler, Calvin TerBeek: Originalist Scholarship and Conservative Politics (reviewing A Republic, If You Can Keep It, by Neil Gorsuch (Crown Forum 2019), and Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge University Press 2019)by Lee J. Strang).  Here is the introduction:

Neil Gorsuch is an ideological entrepreneur. His new book—pointedly not “intended for academics” (8)—is a folksy paean to constitutional conservatism. Gorsuch’s primary audience for his evangelization is the conservative media ecosystem and the engaged conservative citizen who consumes its wares. It is no coincidence the justice gave an exclusive preview of the book to  The Federalist, a pro-Trump conservative web magazine. Gorsuch wants to fill the role of conservative scholar-judge for the knowledge structure that movement conservatives have impressively built up for decades. This book is part of his bid to succeed Antonin Scalia, but with the late justice’s hard edges sanded down. 

Likewise, University of Toledo law professor Lee Strang’s book is the product of—and is also primarily aimed at—the conservative knowledge structure. Strang’s core audience is fellow conservative academic lawyers who subscribe (or are sympathetic) to originalism and their liberal interlocutors in the legal academy. The production of Strang’s book was supported by conservative institutional sites, including Georgetown Law’s Center for the Constitution (xi). The Center is run by Randy Barnett who conceived the first constitutional challenge to the Affordable Care Act. Reinforcing the ideological feedback loop: Barnett’s colleague, Larry Solum, with whom he runs an “Originalism Boot Camp” for conservative and libertarian law students, testified on behalf of Gorsuch at the nominee’s confirmation hearing. At Gorusch’s hearing Solum delivered a defense of originalism, and here, Solum blurbs the book.

Gorsuch’s central aim is to translate originalism—defined by the justice as reliance on “text and history and how the document was understood at the time of ratification” (25)—and its attendant conservative legal policy goals for a lay audience. Strang’s book serves as a compendium of the conservative and libertarian scholarship which Gorsuch, in turn, name-checks and popularizes in his book. Strang endorses this as the conservative legal movement’s “intellectual division of labor” (95). Put differently, Strang calls for conservative and libertarian legal academics to produce more law review articles (and books) for the conservative justices to cite in their opinions (and books) in order to legitimate them with ostensibly neutral academic expertise. Thus these books, instantiating the “intellectual division of labor,” provide a window into how ideas are disseminated and institutionalized by the conservative legal movement and the Republican Party. 

An interesting and engaging review, but I must say I'm baffled by this sentence:  "One goal of [Professor Strang's] book is to reassert the control Georgetown’s Center for the Constitution once had over the fractious intra-originalist debate in the legal academy (42)."  I have great respect for Georgetown’s Center for the Constitution but I'm fairly confident it did not ever "control" the intra-originalist debate (nor do I think the Center has such a goal). I at least have never felt controlled by it!

10/11/2019

Haoshan Ren et al.: The Original Meaning of ‘Cases’ in Article III of the Constitution
Michael Ramsey

Haoshan Ren (Georgia State University), Margaret Wood (Northern Arizona University), Clark D. Cunningham (Georgia State University College of Law), Noor Abbady (Savannah College of Art and Design), Ute Römer (Georgia State University), Heather Kuhn (independent) and Jesse Egbert (Northern Arizona University) have posted ‘Questions Involving National Peace and Harmony’ or ‘Injured Plaintiff Litigation’? The Original Meaning of ‘Cases’ in Article III of the Constitution (36 Georgia State University Law Review __, forthcoming) (55 pages) on SSRN.  Here is the abstract:

If a federal official is deliberately violating the Constitution, is it possible that no federal court has the power to halt that conduct? Federal judges have been answering “yes” for more than a century – dismissing certain kinds of lawsuits alleging unconstitutional conduct by ruling that the lawsuits were not “cases” as meant in the phrase “The judicial Power shall extend to all cases” in Article III, Section 2, of the Constitution.

In 1911 the United States Supreme Court declared: “[T]he exercise of the judicial power is limited to ‘cases’ and ‘controversies.’ … By cases and controversies are intended the claims of litigants. … The term implies the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication.” The Supreme Court has subsequently further specified the meaning of “case” within the meaning of Article III to include the following “essential core”: a plaintiff who has suffered a concrete and particularized injury that is likely to be redressed by a judicial decision. Thus, at least in the civil setting, the Court has restricted the meaning of “cases” to adversary litigation initiated by a plaintiff with a personal and concrete injury --- in brief, “injured plaintiff litigation.”

This narrow interpretation of “cases” was used recently by the U.S. Court of Appeals for the Fourth Circuit to justify dismissing a lawsuit brought against President Donald Trump by the State of Maryland and the District of Columbia claiming that he is deliberately violating the Constitution’s prohibition against receiving emoluments from foreign states. The court said: “the District and Maryland’s interest in constitutional governance is no more than a generalized grievance, insufficient to amount to a case or controversy within the meaning of Article III.” Responding to the argument that if the District of Columbia and Maryland “could not obtain judicial review of [the President’s] action, then as a practical matter no one can,” the Fourth Circuit cited the answer provided in a 1974 Supreme Court decision: “The assumption that if [plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing.”

The empirical research reported in this article suggests that this “injured plaintiff litigation” interpretation of the meaning of “cases” may be more narrow – perhaps indeed entirely different – than how the word in its Article III context would have been used and understood by those who drafted and ratified the Constitution.

The authors of this article, comprised of a research team of lawyers and linguists, used a variety of computer-aided methods for examining very large data sets of Founding Era texts, including the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.

One of the most glaring flaws of the Articles of Confederation was that the Articles supported only a very weak federal judiciary system. When delegates gathered in Philadelphia to draft a new constitution, they started out with high aspirations for establishing courts empowered to “hear and determine … questions which may involve the national peace and harmony.” The linguistic and historical analyses presented in this article support a conclusion that this aspiration did not disappear when “questions involving national peace and harmony” evolved into a series of phrases introduced by the word “cases” instead of “questions.”

This research indicated that those who drafted and ratified the Constitution:
(1) Would have understood “cases arising under laws” to be a type or example of “questions as involve the National peace and harmony”;
(2) Would have understood “questions as involve the National peace and harmony ” to be a more general category of jurisdiction than “cases arising under laws”; and
(3) Would not have understood “cases” in Article III as having a stable, inherent meaning such as “injured plaintiff litigation” – instead “cases” in each context of use would have been read as having a different meaning, constructed through its combination with accompanying words.

This empirical research may prompt reevaluation of the Supreme Court’s assumption that the original meaning of “cases” in Article III had the restrictive meaning of “injured plaintiff litigation” – an interpretation that is inconsistent with evidence of how those who drafted and ratified the Constitution actually used language.

10/10/2019

Does the Constitution’s Original Meaning Prohibit a State from Abolishing the Insanity Defense?
Mike Rappaport

Mike Ramsey recently posted on the Kahler v. Kansas case, which raises the issue whether a state can eliminate the insanity defense.  Mike concluded that the original meaning does not protect against eliminating the insanity defense under the Eight Amendment or the Due Process Clause:

After considering this question a bit more, it seems to me that actually this long-standing practice is irrelevant from an originalist perspective.  Kahler is challenging his conviction under the Eighth Amendment (cruel and unusual punishment) and the Fourteenth Amendment (due process).  But the insanity defense is part of the substance of the offense.  It is neither procedural nor an aspect of punishment.

It cannot be that states must conform the substance of criminal law to what prevailed at the founding.  States routinely create new offenses and modify existing offenses by changing their elements or eliminating defenses.  That these changes may alter traditional approaches is not a matter of constitutional concern.

I have some sympathy for Mike’s argument, but I believe there is a potentially strong argument for concluding that the original meaning prohibits the insanity defense under the Privileges or Immunities Clause. 

As I have indicated previously, I adopt “the prevalent rights view" of the Privileges or Immunities Clause.  “Under this view ‘the privileges or immunities of citizens of the United States’ – refers to the rights that are prevalent throughout the United States at a particular time.  To determine what those rights are, one must look at what rights the states . . . protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.”

There are two versions of this view.  The static view holds that a right is protected by the Clause if it was protected by the great majority of states or virtually all states at the time of the enactment of the 14th Amendment.  (Perhaps the right also needed to have been protected for an extended period of time leading up to the 14th Amendment.)  Under this view, those rights were protected when the Amendment was enacted and cannot be taken away.

The dynamic view is similar but holds that the rights protected can change over time.  If a right that was not protected by virtually all states at the time of the 14th Amendment comes to be protected by virtually all states at a later point, it then becomes a privilege or immunity of citizens of the United States.   

I am not sure whether I hold the static or the dynamic view, but the insanity defense might be protected under either view.  If the insanity defense was protected by virtually all states at the time of the 14th Amendment, then it would be a privilege or immunity that could not be taken away.  Under the dynamic view, if the defense is protected by virtually all states at present, then it is a privilege or immunity that cannot be taken away. 

So I believe there are serious original meaning issues raised by the case.  Of course, the resolution will turn on how widely the insanity defense was actually protected by the states during the relevant period.  I have not explored that question.  

Title VII and Sexual Orientation Discrimination
Andrew Hyman

This week, the U.S. Supreme Court heard oral arguments in Bostock v. Clayton County and Harris Funeral Homes v. EEOC.   SCOTUSBlog has a summary of those arguments, and the transcript is here.  The cases revolve around Title VII of the Civil Rights Act of 1964, which bars employment discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”  The issue is whether this statutory bar on sex discrimination includes a bar on sexual orientation discrimination (Bostock), or on transgender discrimination (Harris).  For simplicity, I’ll just comment here on the former (Bostock).    

There is much common ground.  Hardly anyone thinks the word “sex” in the 1964 statute means anything other than “gender.”  Hardly anyone thinks Congress in 1964 anticipated that this section would give any protection to people in same-gender relationships.  Hardly anyone thinks discriminating against people in same-gender relationships would disfavor or disadvantage one gender or the other, or is motivated by any animus toward one gender or the other, or is an endorsement of the doctrine of male or female supremacy.  

The major disagreement is whether, according to the text of the section, it forbids employment discrimination against an individual in a same-sex relationship, given that the individual would not be in a same-sex relationship if his gender were different while the partner’s gender remained the same.  Seems to me it is unrealistic to suppose that an individual’s gender could be different while everything else remained the same, because in that event the partner would very likely insist upon exiting the relationship.  Also, using similar “but for” logic with regard to statutory categories like “national origin” would have absurd effects, because disfavoring people unlawfully in the United States depends on their national origin not being the United States.  Moreover, the discrimination against people in the present case (Bostock) is not against one gender or the other, even via implication or animus or anything else.  That doesn’t mean it’s a moral form of discrimination, but Title VII does not bar all immoral discrimination.

Congress passed the Civil Rights Act of 1964 and is free to improve it, and Judge Posner was surely mistaken when he said that we should “avoid placing the entire burden of updating old statutes on the legislative branch.”  It’s true Justice Scalia once wrote that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  Gender is not synonymous with sexuality, and being closely-related is not enough to make such words interchangeable.
 
MICHAEL RAMSEY ADDS:  George Will has some related thoughts in the Washington Post: It’s not the Supreme Court’s job to say whether ‘sex’ includes sexual orientation.  Also, at Volokh Conspiracy, Dale Carpenter has a great post on how Judge Posner was attacked by all sides in the oral argument:  Of loose cannons and loose canons in Title VII.
 
From a (statutory) originalist perspective, the interesting question to me is methodological: how much should it matter that the enacting Congress did not think that its text would cover sexual orientation discrimination?
 
If the original meaning of the text were clear, my answer (and I think Scalia's answer, per the quote Andrew provides above) would be: not much.  The text governs, not the intent.  When the text is not clear, though, one important way to resolve ambiguity is to look at what the enactors (and other people at the time) understood the text to mean.  That may not be conclusive, but it is strongly suggestive that, whatever ambiguities we now see over the passage of time, the text actually had a clear meaning at the time it was enacted.  For this reason, in constitutional originalism we routinely look to see what people in the founding era thought a particular text meant.  And if it seems that people in the founding era were largely in accord on the meaning, that indicates that the text isn't as ambiguous as it now seems to us.  (The scholarship on the declare war clause is a great example).
 
Thus when people who favor extending Title VII to sexual orientation discrimination say it shouldn't matter to a textualist what the enacting Congress thought, they are only partially right.  It shouldn't matter, if the text is clear.  But for reasons stated by Andrew, George Will, and others, I have a hard time concluding that the text is clear.

Scott Gerber: Law and the Holy Experiment in Colonial Pennsylvania
Michael Ramsey

Scott D. Gerber (Ohio Northern University - Pettit College of Law) has posted Law and the Holy Experiment in Colonial Pennsylvania (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019, pp. 618-717) (100 pages) on SSRN.  Here is the abstract:

Religious liberty is a core component of America’s legal culture. William Penn, the Quaker founder and proprietor of colonial Pennsylvania, played an indispensable role in ensuring that it is. Indeed, Thomas Jefferson — the author of one of the most celebrated religious liberty laws in American history, the Virginia Statute for Religious Freedom of 1786 — described Penn as “the greatest lawgiver the world has produced, the first in either ancient or modern times who has laid the foundation of govmt in the pure and unadulterated principles of peace of reason and right.” Jefferson was correct. After all, the commitment to liberty of conscience that characterized colonial Pennsylvania traced directly to Penn’s vision, example, and determination: Pennsylvania enacted more laws about religious tolerance than any other British American colony, both before and after Penn’s death. Delaware, which Penn also owned and which constituted the “lower counties” of Pennsylvania until it became an independent state in 1776, likewise enacted religiously tolerant laws even when Penn permitted it to govern itself with a separate assembly after 1704. Although generations of scholars have explored the political and social history of Penn’s “Holy Experiment,” no one has examined how colonial Pennsylvania used law to ensure its success. This article endeavors to do that through an exegesis of Pennsylvania’s charter, colonial constitutions, statutes, and judicial decisions.

(Via Dan Ernst at Legal History Blog).

10/09/2019

Faithful Execution and "For Cause" Directors
Michael Ramsey

In the New York Times, Jed Shugerman and Ethen Leib argue that the Faithful Execution Clause allows Congress to limit the President's ability to remove agency directors (as in the CFPB and FHFA cases now pending for cert).  But their argument has a serious flaw that even they are forced to acknowledge and largely can't answer.

From the introduction:

First, the Department of Justice asked the court to strike down the job security protections for the head of the Consumer Financial Protection Bureau, which was Senator Elizabeth Warren’s brainchild. Such restrictions on a president’s removal power, the argument goes, violate the separation of powers. Afterward, Fannie Mae and Freddie Mac shareholders filed a surprising petition making a similar argument about the Federal Housing Finance Agency.

But these arguments overlook an important constitutional text that applies to the president’s powers: the duty of “faithful execution.” That obligation already limits presidential discretion, and it gives Congress the power to apply “good faith” or “good cause” limits on the president’s removal authority.

And from later on:

[T]he proponents of the view that all agency heads serve at the pleasure of the president cite the clause in Article II that requires of the president that he “shall take care” of executing laws.

However, they ignore a crucial modifier in Article II and its history: “The president shall take care that the laws be faithfully executed.” The president also takes an oath to “faithfully execute the Office of President.” These clauses require good faith in executing presidential powers. The position that the president must have a completely unconstrained ability to say “you’re fired” to any agency head is wrong as a matter of the original public meaning of the Constitution.

The word “faithfully” is a signal that the framers wanted to limit the exercise of presidential powers to “good faith” reasons, bona fide purposes and fidelity to the public interest. ...

Let's assume they're right about the President having a faithful execution duty.  (I think they probably are).  That does not  show that the President's removal power can be limited to cases of (as the CFPB statute puts it) "inefficiency, neglect of duty, or malfeasance in office."

To the contrary, the President likely may wish to remove an agency head because of a policy disagreement, or simply because the President is not comfortable working with the person.  Such removals obviously would not violate the duty of faithful execution.  They are not situations in which the President is pursuing a private interest at the expense of the public interest.  The point of the removal is to allow the President to pursue the public interest (as the President sees it) without interference from an agency head with a different view of the matter.  Yet these removals would not be allowed by the CFPB statute (or other similar statutes).  Indeed, the central point of the statutory removal limitations is to create independent agencies whose policymaking the President cannot directly control.  And that's what makes the limitations unconstitutional -- they prevent the President from fully exercising the constitutional "executive Power."

Professors Leib and Shugarman see the problem with their argument and try to deal with it toward the end of the article:

One might argue that “inefficiency, neglect of duty, or malfeasance in office” arguably goes beyond a constitutional good-faith requirement. A policy disagreement might be the basis of good-faith removal, but is it sufficient to meet the statutory terms of “inefficiency” or “neglect”?

Congress sometimes is permitted to draw the bounds of “faithfulness” more specifically. First, the history of “faithful execution” and other parts of Article II indicate general deference to Congress’s law-giving authority and judgment. Within reasonable limits, Congress can animate the concept of “faithful execution” as a limit on a president’s removal discretion. Second, everyone knows “good faith” is vague; allowing Congress room to be more specific or to tailor protections for particular offices is not a remarkable exception. Congress should have latitude to specify that “faithful execution” in some agencies dealing with especially sensitive matters or special expertise may require extra insulation, even from removal for policy disagreements, to guard against self-interested presidential pressure and manipulation. Third, the limits Congress creates for independent agencies still leave the president with broad discretion to remove officials, retaining the Constitution’s basic unitary structure.

I don't think this makes any progress in salvaging their argument.  First, the good cause standard clearly (not just "arguably") goes beyond the good faith requirement.  And if one were inclined to read the two in harmony, the result would be that the President could fire the agency heads for essentially any reason apart from a purely private one.  (This argument has been made, though I regard it as amending the statute to preserve its constitutionality rather than fairly interpreting the statute).

Second, I think the supposed "general deference to Congress’s law-giving authority and judgment" in separation of powers cases is largely an invention of the authors (the link goes to a contested academic piece by Julian Mortenson that isn't really on point).  And when the Court has deferred (as in Morrison v. Olson), it's been wrong.  Fundamentally, separation of powers means that one power should not be allowed to encroach upon another; deferring to Congress' encroachments is exactly the wrong way to do it.

Third, the suggestions that Congress "can animate the concept of 'faithful execution'" or that we should "allow[ ] Congress room to be more specific or to tailor protections for particular offices" are but fancy ways of saying that Congress should be allowed to create limitations on the President's executive power that aren't in the Constitution.

In sum, the faithful execution limit on the President (which I endorse) is a very modest one.  It does not license Congress to shield agency heads from the President's control and removal in situations of policy disagreement or personality clash between the President and the agency head.  Such removals are an aspect of faithful execution, not a violation of it.

(Note: I joined an academic amicus brief supporting the petition for writ of certiorari in the CFPB case.  For more discussion, see here: The Battle of the "For Cause" Directors).

10/08/2019

Does the Supreme Court Have Mandatory Original Jurisdiction?
Michael Ramsey

Article III, Section 2 says that "[i]n all Cases ... in which a State shall be a Party, the supreme Court shall have original Jurisdiction."  But does that mean it has mandatory original jurisdiction?  In a pending case, a group of states, led by Dave Yost and Benjamin Flowers (respectively, the Attorney General and Solicitor General of Ohio), argue yes.  Here is their brief (in Arizona v. Sackler).  And here is their summary of argument: 

Article III confers the “judicial Power” on the federal courts and allows them to exercise that power in certain categories of “Cases” and “Controversies,” including “Controversies … between a State and Citizens of another State” Art. III, §2, cl.1. The same article vests this Court with original jurisdiction over cases “in which a State shall be Party.” Art. III, §2, cl.2. This Court has long (and correctly) interpreted this language to confer original jurisdiction in only those cases to which the judicial Power extends “because a State is a party.” Cohens v. Virginia, 6 Wheat. 264, 394 (1821) (emphasis added). (As opposed to cases, such as federal-question cases, in which the courts have jurisdiction without regard to the parties’ identities.) The category of cases to which jurisdiction extends because a State is a party includes controversies “between a State and Citizens of another State.”

The “judicial Power” extends to this controversy between a State (Arizona) and nonresidents (the defendants). And this Court unambiguously has original jurisdiction over this case “in which a State shall be Party.” Art. III, §2, cl.2. Thus, the Court must entertain Arizona’s suit unless it has discretion not to hear cases over which it has original jurisdiction.

The Court has no such discretion. Article III gives the courts no freestanding power “to decline the exercise of jurisdiction which is given.” Cohens, 3 Wheat. at 404. Nor does it give this Court any power to decline jurisdiction specifically in cases arising under its original jurisdiction. Indeed, this Court has acknowledged that Article III, as originally understood, confers no such discretion. Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 496–97 (1971).

Notwithstanding this acknowledgment, the Court has claimed for itself the power to decline the exercise of jurisdiction. Id. at 498. “The Court’s reasons for transforming its mandatory, original jurisdiction into discretionary jurisdiction have been rooted in policy considerations.” Nebraska v. Colorado, 136 S. Ct. 1034, 1035 (2016) (Thomas, J., dissenting from denial of motion for leave to file complaint). For example, the Court has “cited its purported lack of ‘special competence in dealing with’ many interstate disputes and emphasized its modern role ‘as an appellate tribunal.’” Id. (quoting Wyandotte, 401 U.S. at 498).

These arguments are unpersuasive. Most fundamentally, this Court cannot rewrite the Constitution whenever, in its view, doing so makes  better policy. Regardless, the policy arguments fail on their own terms. For example, the Court’s ability to appoint special masters, and the option to certify state-law questions to state courts, mitigate or eliminate any concern about this Court’s “special competence” or its ability to function primarily as an “appellate tribunal.” And even if this Court were to restore the mandatory nature of its original jurisdiction over disputes between States and nonresidents, it would face no serious risk of being flooded with litigation: In disputes between States and nonresidents, only the States can sue under this Court’s original jurisdiction; the nonresidents have no power to sue the States. See U.S. Const., 11th Am. Since States will usually prefer to proceed against nonresidents in their own courts if possible, they will rarely seek relief in this Court.

Because this Court’s decisions claiming discretion to decline jurisdiction in original matters are contrary to the Constitution and poorly reasoned, and because they have engendered no reliance interests, they ought to be overruled. ...