Page:Axon Enterprise v. FTC.pdf/35

2 requirement). Today, §1331 provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Not may have jurisdiction, but shall. Not some civil actions arising under federal law, but all. The statute is as clear as statutes get, and everyone agrees it encompasses the claims Ms. Cochran and Axon seek to pursue. See . End of case, right?

Not so fast. As the Court sees it, Ms. Cochran, Axon, and others like them must satisfy not only §1331. They must also satisfy a judge-made, multi-factor balancing test. One assembled from remarks scattered here and there across the pages of Thunder Basin Coal Co. v. Reich, 510 U. S. 200 (1994). And one, we are told, designed to ferret out whether the legislators who adopted the Federal Trade Commission Act in 1914 and the Securities Exchange Act in 1934 harbored an “implici[t]” wish to “ous[t]” district courts of jurisdiction in favor of agency proceedings. Ante, at 7. So, yes, the law on the books may promise you the right to be heard in a court of law. But sometimes that doesn’t count for much. Sometimes judges can shunt you to an agency instead—so long as a test we have fabricated suggests to us that is what Congress really wanted.

There are many problems with the Thunder Basin project, but start with its sheer incoherence. At the outset, Thunder Basin requires litigants and courts to ask whether a “ ‘comprehensive review process’ ” exists. Ante, at 7. What does that mean? It seems a review process will “typically” qualify as “comprehensive” when “review in a court of appeals follow[s] the agency’s own review.” Ibid. But “typically” does not mean “necessarily.” Ibid. Just because an agency can hear a case does not mean a district court cannot. To decide whether a particular case belongs in an agency rather than a court, you must consult three further “considerations … commonly known now as the Thunder Basin factors.” Ante, at 7–8.