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Article III, Section 2, Clause 2 of the U.S. Constitution reads (in part):

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

On the other hand, 28 U.S.C. § 1251(b)(1) reads:

The Supreme Court shall have original but not exclusive jurisdiction of: All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties

Is there any difference between a case affecting someone and a case to which someone is a party?

Has the U.S. Supreme Court ruled that the word "affecting" (as used in the above quoted part of the Constitution) shall be interpreted only as being a party to a case?

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The case that gives the most meaning to "affecting" is United States v. Ortega, 24 U.S. (11 Wheat) 467 (1826). That case was a prosecution of a person who "offered violence" against the chargé d'affaires of the King of Spain in the United States. Despite the chargé d'affaires being such a "public minister" contemplated by Article III, Section 2, Clause 2, the case did not "affect" him.

It is a case, then, which affects the United States, and the individual whom they seek to punish; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution, or in the costs attending it.

The Supreme Court has not explicitly ruled that the person affected must be a party in order for Article III, Section 2, Clause 2 to apply, but Congress has acted as if Ortega implied this. When Congress passed 28 U.S.C. § 1251, the purpose was to indicate that the jurisdiction described in Article III, Section 2, Clause 2 would no longer be exclusive. Congress used the word "parties" and that has not been found to be less inclusive than what is covered by Article III, Section 2, Clause 2 (but simply because the case that would tease out the distinction has not arisen).

Perhaps there is some circumstance where the property interest of a non-party ambassador might be affected such that the Supreme Court would have original jurisdiction, but 28 U.S.C. § 1251(b)(1) would not operate to give concurrent jurisdiction to other courts.

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  • If the Congress did not pass 28 U.S.C. § 1251, would the original jurisdiction of the Supreme Court be exclusive? Couldn't general provisions describing original jurisdiction of other courts (e.g. 28 U.S.C. § 1331 or 18 U.S.C. § 3231) be read as giving them concurrent jurisdiction with the Supreme Court?
    – n00p
    Dec 31, 2022 at 3:51

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