The Law-Making Power of the Federal Courts: Constitutional Preemption

Alfred Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 Colum. L. Rev. 1024 (1967)

Thesis is around the idea that there is exclusive federal power (and thus federal court power to make law) in certain areas, per the Constitution, some recognized, some unrecognized. Hill seems to believe, though, what I also think: the judicial and legislative powers are coextensive.

1024: "Because the federal government, its judicial branch included, is one of limited powers, the ultimate sources of federal law are usually thought of as reposing not in the pronouncements of the courts but in the constitutional and statutory texts that define the reach of federal governance."

1032: "The only general reference to maritime questions in the Constitution is the provision in article III, section 2, extending the federal judicial power to 'all Cases of admiralty and maritime jurisdiction.' On the basis of this provision, the Supreme Court has concluded that the founders intended that a uniform maritime law should prevail in the federal and state courts alike. It is now well settled that, in the absence of a treaty or federal statute, federal judge-made law furnishes the rule of decision in maritime matters, although state law plays a subsidiary role, as will be seen"

This quote cites: Southern Pac. Co. v. Jensen, 244 U.S. 205, 214-15 (1917); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-11 (1953); Gilmore & Black, The Law of Admiralty, 40-46, 374-86 (1957).

So the court has basically said that Article III power was also Article I power? That is, that maritime legislation need not be passed pursuant to express Article I provisions? But: can't maritime law be passed under the commerce clause? Interstate water and international waters are certainly regulable channels of commerce. But what about intrastate waters? Does the admiralty law apply to purely intrastate lakes? (Gilmore and Black cover this question early on in the treatise. Return to it for the answer.)

1070: "Constitutional interpretation aside, it is generally fair to presume that there is a lack of federal judicial power in a particular area unless federal political competence within it is coextensive; and this is of course not a matter of mere coexistence but of power to supersede judge-made law."

If Congress can't reach it, neither can the courts, in other words. Note, though, that there's no citation for this proposition. Hill states it to reassure the reader that his thesis does not entail for the federal courts the power to do things that Congress cannot then reverse. (Which is precisely my thesis.)

References

Friendly, In Praise of Erie -- and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)

Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448 (1957) (esp. Frankfurter's dissent) (see also notes from Federal Courts)

United States v. Standard Oil Co. of California, 332 U.S. 301 (1947)

Citing references

Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992)

William H. Theis, United States Admiralty Law as an Enclave of Federal Common Law, 23 Tul. Mar. L.J. 73 (1998)

Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321 (2001)