On the federal suit over SB1070 (revised)

Currently, the Justice Department's suit against Arizona's immigration law (SB 1070) is being appealed in the Ninth Circuit court. There have been some comments in the press maintaining that, according to our Constitution (Article III, Section 2, Clause2) the Supreme Court of the United States has original jurisdiction in suits involving the Federal government and the States.

Seeing as how this suit was filed in a Federal District court, I decided to view the complaint to see if there was some subtlety that forced the choice of venue.

The title of the complaint is The United States of America, Plaintiff v. The State of Arizona; and Janice K. Brewer, Governor of Arizona, in her official capacity, Defendants which plainly shows Article III, Section 2, Clause 2 to be the governing law. Yet, the appeal is going the normal route as other cases would. Why?

The jurisdiction of the Court is specified in 28 U.S.C §1251:

§ 1251. Original jurisdiction

• (a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
  
• (b)The Supreme Court shall have original but not exclusive jurisdiction of:
  
  • (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
    
  • (2) All controversies between the United States and a State;
    
  • (3) All actions or proceedings by a State against the citizens of another State or against aliens.
    

Note that (b)(2) says the Court does have original jurisdiction in suits between the United States and a State but that the jurisdiction is not exclusive. That is, the district courts are allowed to take these suits as well. The statute is following an earlier decision by the Marshall court in Marbury v. Madison (1803) where, essentially, Marshall took Article III, Section 2 to mean Congress was prohibited from increasing the scope of the Court's original jurisdiction but that Congress could, by statute, reduce its scope.

So, this is an example where the plain language of the Constitution has been modified by Court decisions and acts of Congress. Ultimately, the appeal may go to the Supreme Court anyway.