uently addressing themselves to the task of finding legislation
invalid. The limitation imposed by the concept of political questions
does not limit in any significant way the power of the federal courts to
review legislation, but does remove from judicial scrutiny vast areas of
executive action. In general, therefore, the extent to and manner in
which the courts will exercise their power to review legislation is a
matter of judicial discretion.

ALLEGATIONS OF FEDERAL QUESTION

The question of jurisdiction of cases involving federal questions is
determined by the allegations made by the plaintiff and not upon the
facts as they may emerge or by a decision of the merits.[293]
Plaintiffs seeking to docket such cases in the federal courts must set
forth a substantial claim under the Constitution, laws or treaties of
the United States.[294] Nor does jurisdiction arise simply because an
averment of a federal right is made, "if it plainly appears that such
averment is not real and substantial, but is without color of
merit."[295] The federal question averred may be insubstantial because
obviously without merit, or because its unsoundness so clearly results
from previous decisions of the Supreme Court as to foreclose the issue
and leaves no room for the inference that the questions sought to be
raised can be subjects of controversy.[296] In Gully _v._ First National
Bank[297] the Court reviewed earlier precedents and endeavored to
restate the rules for determining when a case arises. First there must
be a right or immunity created by the Constitution, laws, or treaties of
the United States which must be such that it will be supported if the
Constitution, laws, or treaties are given one construction, or defeated
if given another. Second, a genuine and present controversy as
distinguished from a possible or conjectural one must exist with
reference to the federal right. Third, the controversy must be disclosed
upon the face of the complaint unaided by the answer.[298]

CORPORATIONS CHARTERED BY CONGRESS

The earlier hospitality of the federal courts to cases involving federal
questions is also manifested in suits by corporations chartered by
Congress. Although in Bank of United States _v._ Deveaux[299] the Court
held that the first Bank of the United States could not sue in the
federal courts merely because it was incorporated by an act of Congress,
the act incorporating the second bank authorized such suits and this
aut