# Tafflin v. Levitt/Concurrence Scalia

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Justice SCALIA, with whom Justice KENNEDY joins, concurring.
I join the opinion of the Court, addressing the issues before us on the basis argued by the parties, which has included acceptance of the dictum in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S.Ct. 2870, 2875, 69 L.Ed.2d 784 (1981), that " 'the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests.' " Ante, at 459-460. Such dicta, when repeatedly used as the point of departure for analysis, have a regrettable tendency to acquire the practical status of legal rules. I write separately, before this one has become too entrenched, to note my view that in one respect it is not a correct statement of the law, and in another respect it may not be.
State courts have jurisdiction over federal causes of action not because it is "conferred" upon them by the Congress; nor even because their inherent powers permit them to entertain transitory causes of action arising under the laws of foreign sovereigns, see, e.g., McKenna v. Fisk, 1 How. 241, 247-249, 11 L.Ed. 117 (1843); but because "[t]he laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. . . . The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other. . . ." Claflin v. Houseman, 93 U.S. 130, 136-137, 23 L.Ed. 833 (1876); see also Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 221-223, 36 S.Ct. 595, 598-599, 60 L.Ed. 961 (1916).
It therefore takes an affirmative act of power under the Supremacy Clause to oust the States of jurisdiction-an exercise of what one of our earliest cases referred to as "the power of congress to withdraw" federal claims from state-court jurisdiction. Houston v. Moore, 5 Wheat. 1, 26, 5 L.Ed. 19 (1820) (emphasis added). See also Bombolis, supra, 241 U.S., at 221, 36 S.Ct., at 598 (concurrent jurisdiction exists "unless excepted by express constitutional limitation or by valid legislation"); Missouri ex rel. St. Louis, B. & M.R. Co. v. Taylor, 266 U.S. 200, 208, 45 S.Ct. 47, 48, 69 L.Ed. 247 (1924) ("As [Congress] made no provision concerning the remedy, the federal and the state courts have concurrent jurisdiction").
As an original proposition, it would be eminently arguable that depriving state courts of their sovereign authority to adjudicate the law of the land must be done, if not with the utmost clarity, cf. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985) (state sovereign immunity can be eliminated only by "clear statement"), at least expressly. That was the view of Alexander Hamilton:
"When . . . we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited." The Federalist No. 82, p. 132 (E. Bourne ed. 1947).
See also Galveston, H. & S.A.R. Co. v. Wallace, 223 U.S. 481, 490, 32 S.Ct. 205, 206, 56 L.Ed. 516 (1912) ("[J]urisdiction is not defeated by implication"). Although as early as Claflin, see 93 U.S., at 137, and as late as Gulf Offshore, we have said that the exclusion of concurrent state jurisdiction could be achieved by implication, the only cases in which to my knowledge we have acted upon such a principle are those relating to the Sherman Act and the Clayton Act-where the full extent of our analysis was the less than compelling statement that provisions giving the right to sue in United States District Court "show that [the right] is to be exercised only in a 'court of the United States.' " General Investment Co. v. Lake Shore & Michigan Southern R. Co., 260 U.S. 261, 287, 43 S.Ct. 106, 117, 67 L.Ed. 244 (1922) (emphasis added). See also Blumenstock Bros. Advertising Agency v. Curtis Publishing Co., 252 U.S. 436, 440, 40 S.Ct. 385, 386, 64 L.Ed. 649 (1920) (dictum); Freeman v. Bee Machine Co., 319 U.S. 448, 451, n. 6, 63 S.Ct. 1146, 1147-1148, n. 6, 87 L.Ed. 1509 (1943) (dictum); Hathorn v. Lovorn, 457 U.S. 255, 267, n. 18, 102 S.Ct. 2421, 2429, n. 18, 72 L.Ed.2d 824 (1982) (dictum). In the standard fields of exclusive federal jurisdiction, the governing statutes specifically recite that suit may be brought "only" in federal court, Investment Company Act of 1940, as amended, 84 Stat. 1429, 15 U.S.C. § 80a-35(b)(5); that the jurisdiction of the federal courts shall be "exclusive," Securities Exchange Act of 1934, as amended, 48 Stat. 902, 15 U.S.C. § 78aa; Natural Gas Act of 1938, 52 Stat. 833, 15 U.S.C. § 717u; Employee Retirement Income Security Act of 1974, 88 Stat. 892, 29 U.S.C. § 1132(e)(1); or indeed even that the jurisdiction of the federal courts shall be "exclusive of the courts of the States," 18 U.S.C. § 3231 (criminal cases); 28 U.S.C. §§ 1333 (admiralty, maritime, and prize cases), 1334 (bankruptcy cases), 1338 (patent, plant variety protection, and copyright cases), 1351 (actions against consuls or vice consuls of foreign states), 1355 (actions for recovery or enforcement of fine, penalty, or forfeiture incurred under Act of Congress), 1356 (seizures on land or water not within admiralty and maritime jurisdiction).
Assuming, however, that exclusion by implication is possible, surely what is required is implication in the text of the statute, and not merely, as the second part of the Gulf Offshore dictum would permit, through "unmistakable implication from legislative history." 453 U.S., at 478, 101 S.Ct., at 2875. Although Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962), after concluding that the statute "does not state nor even suggest that [federal] jurisdiction shall be exclusive," id., at 506, 82 S.Ct., at 522, proceeded quite unnecessarily to examine the legislative history, it did so to reinforce rather than contradict the conclusion it had already reached. We have never found state jurisdiction excluded by "unmistakable implication" from legislative history. It is perhaps harmless enough to say that it can be, since one can hardly imagine an "implication from legislative history" that is "unmistakable"-i.e., that demonstrates agreement to a proposition by a majority of both Houses and the President-unless the proposition is embodied in statutory text to which those parties have given assent. But harmless or not, it is simply wrong in principle to assert that Congress can effect this affirmative legislative act by simply talking about it with unmistakable clarity. What is needed to oust the States of jurisdiction is congressional action (i.e., a provision of law), not merely congressional discussion.
It is perhaps also true that implied preclusion can be established by the fact that a statute expressly mentions only federal courts, plus the fact that state-court jurisdiction would plainly disrupt the statutory scheme. That is conceivably what was meant by the third part of the Gulf Offshore dictum, "clear incompatibility between state-court jurisdiction and federal interests." 453 U.S., at 478, 101 S.Ct., at 2875. If the phrase is interpreted more broadly than that, however-if it is taken to assert some power on the part of this Court to exclude state-court jurisdiction when systemic federal interests make it undesirable it has absolutely no foundation in our precedent.
Gulf Offshore cited three cases to support its "incompatibility" formulation. The first was Dowd Box, supra, 368 U.S., at 507-508, 82 S.Ct., at 523, which contains nothing to support any "incompatibility" principle, except a quotation from the second case Gulf Offshore cited, Claflin. Indeed, in response to the argument that "[o]nly the federal judiciary . . . possesses both the familiarity with federal labor legislation and the monolithic judicial system necessary" to elaborate a coherent system of national labor laws, the Dowd Box opinion said: "Whatever the merits of this argument as a matter of policy, we find nothing to indicate that Congress adopted such a policy in enacting § 301." 368 U.S., at 507, 82 S.Ct., at 522. The second case cited was Claflin, which said that concurrent jurisdiction exists "where it is not excluded by express provision or by incompatibility in its exercise arising from the nature of the particular case." 93 U.S., at 136. The subsequent discussion makes it entirely clear, however, that what the Court meant by "incompatibility in its exercise arising from the nature of the particular case" was that the particular statute at issue impliedly excluded state-court jurisdiction. "Congress," the Court said, "may, if it sees fit, give to the Federal courts exclusive jurisdiction," which it does "sometimes . . . by express enactment and sometimes by implication." Id., at 137. The third case cited, Garner v. Teamsters, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953), had nothing to do with state-court jurisdiction over a federal cause of action. It held that the National Labor Relations Act, whose express provision that the jurisdiction of the National Labor Relations Board shall be exclusive had already been held to prevent federal courts from assuming primary jurisdiction over labor disputes, see Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 58 S.Ct. 459, 462, 82 L.Ed. 638 (1938), prevented state courts as well.
In sum: As the Court holds, the RICO cause of action meets none of the three tests for exclusion of state-court jurisdiction recited in Gulf Offshore. Since that is so, the proposition that meeting any one of the tests would have sufficed is dictum here, as it was there. In my view meeting the second test is assuredly not enough, and meeting the third may not be.

## Notes

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