Saturday, October 4, 2025

Merits and Jurisdictional Elements

One tricky piece in distinguishing substantive merits from jurisdiction is the problem of the "jurisdictional element"--an element that Congress must include to show it possessed legislative power ("legislative jurisdiction") to enact the statute and regulate the targeted conduct. The most common jurisdictional element is that the conduct "affected interstate commerce" for Commerce Clause legislation (recall US v. Lopez).

The term "jurisdictional element" creates confusion--doesn't that mean the failure of that element deprives the court of jurisdiction. The answer is no, because we distinguish Congress' "legislative jurisdiction" from the court's "adjudicative jurisdiction." The failure of the former represents a failure on the merits--the failure to satisfy some element of the charge; it so happens the element is constitutionally required, but it remains an element. The court has original adjudicative jurisdiction under 18 U.S.C. § 3231 "of all offenses against the laws of the United States."

 The Eighth Circuit held that the federal government failed to prove the commerce element in a sex trafficking prosecution (the use of money and a car that had been manufactured in another state was not enough). There is no discussion or suggestion the district court lacked jurisdiction. The district court properly acquitted because the charge failed.

If you can figure out the difference . . .

Returning to the collateral order doctrine and determining what is and is not subject to review.

A government official sued for damages for a constitutional violation can assert an affirmative defense of qualified immunity; denial of dismissal is appealable under the COD. A private actor can sometimes be sued for constitutional violations when they act under the control of the state; such a private actor cannot assert qualified immunity, but they can raise an affirmative defense of "good faith." The Ninth Circuit held that denial of dismissal is not appealable under the COD. The analysis amounts to: This is an affirmative defense to liability, not an immunity from suit. Again, no reason (beyond precedent declaring so) given for why.

We will discuss qualified immunity and good-faith immunity in Civil Rights next semester. Expect this case to be on the oral argument list.