Constitution Annotated

Article III, Section 2, Clause 1 — Cases to Which the United States Is a Party

Article III, Section 2, Clause 1

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Essays on this page (5)

ArtIII.S2.C1.13 Cases to Which the United States Is a Party

ArtIII.S2.C1.13.1 Overview of Cases to Which the United States Is a Party

Article III authorizes federal courts to exercise jurisdiction over “Controversies to which the United States shall be a Party.”1 While the Constitution does not explicitly authorize the federal government to bring suits, since the early years of the Republic, the Supreme Court and Congress have accepted that the United States can both sue and be sued, subject to certain legal limits.2 The following essays discuss constitutional issues that may arise when the United States files suit as a plaintiff,3 including suits by the federal government against the states.4 The essays then briefly explore legal questions related to suits where the United States or a federal entity is a defendant.5

Notes
  1. U.S. CONST. art. III, § 2, cl. 1. ↩
  2. See, e.g., Judiciary Act of 1789, 1 Stat. 73; Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818). ↩
  3. See ArtIII.S2.C1.13.2 Right of the United States to Sue. ↩
  4. See ArtIII.S2.C1.13.3 Suits Against States. ↩
  5. See ArtIII.S2.C1.13.4 Suits Against the United States and Sovereign Immunity. ↩

ArtIII.S2.C1.13.2 Right of the United States to Sue

Although the Constitution does not explicitly authorize the federal government to bring suits, the Supreme Court, Congress, and legal commentators have long accepted the federal government’s ability to do so. In his 1833 Commentaries on the Constitution of the United States, Justice Joseph Story noted that while “an express power is no where given in the constitution, the right of the United States to sue in its own courts is clearly implied in that part respecting the judicial power.”1 Justice Story reasoned, “all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns.”2 Through the Judiciary Act of 1789 and subsequent amendments to the Act, Congress has granted federal district courts jurisdiction to hear civil suits brought by the United States as party plaintiff in law or equity.3

In 1818, the Supreme Court ruled that the United States could sue in its own name in all contract cases without congressional authorization for such suits.4 The Court later extended this rule to other types of actions in which the government seeks to vindicate its own interests.5

The Court has also upheld statutes granting the federal government authority to sue to vindicate certain interests of the general public. For instance, in United Steelworkers v. United States, the Court upheld a provision of the Labor Management Relations Act of 1949 that authorized the Attorney General to sue for an injunction against strikes that imperil national health or safety.6 The Court held that the statue could require courts to “exercis[e] powers of a legislative or executive nature.”7 It further held that the statute properly “recognize[s] certain rights in the public to have unimpeded for a time production in industries vital to the national health or safety” and “makes the United States the guardian of these rights in litigation.”8 In the 1960 case United States v. Raines, the Court upheld a provision of the Civil Rights Act of 1957 that authorized the Attorney General to sue for injunctive relief against interference with voting rights.9 In response to the challengers’ argument that it was “beyond the power of Congress to authorize the United States to bring [an] action in support of private constitutional rights,” the Court held that “there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.”10

In the absence of a statutory provision to the contrary, the Attorney General initiates suits by the federal government in the name of the United States.11 To date, the Supreme Court has declined to address whether the United States may sue to protect the constitutional rights of its citizens without statutory authorization.12

Notes
  1. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1274 (1833). ↩
  2. Id. ↩
  3. 1 Stat. 73. The provision is now codified at 28 U.S.C. § 1345. Because the Supreme Court’s original jurisdiction extends only to cases enumerated in the Constitution, the United States must bring suits against persons or corporations in the lower federal courts. The United States may bring suits against a state in the Supreme Court pursuant to the Court’s original jurisdiction, 28 U.S.C. § 1251(b)(2), or the United States may bring such suits in the district courts. Case v. Bowles, 327 U.S. 92, 97 (1946). As in other judicial proceedings, the United States, like any party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought. United States v. San Jacinto Tin Co., 125 U.S. 273 (1888). ↩
  4. Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818). ↩
  5. See, e.g., Cotton v. United States, 52 U.S. 229 (1850) (United States could bring suit for trespass); United States v. Gear, 44 U.S. 120 (1945) (United States could sue for injunction against mining on public lands). ↩
  6. 361 U.S. 39 (1960). ↩
  7. Id. at 43. ↩
  8. Id. ↩
  9. 362 U.S. 17 (1960). ↩
  10. Id. at 27. See also Oregon v. Mitchell, in which two of the four cases considered were actions by the United States to enjoin state compliance with the Voting Rights Act Amendments of 1970. 400 U.S. 112 (1970). ↩
  11. United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. Beebe, 127 U.S. 338 (1888); United States v. Bell Telephone Co., 128 U.S. 315 (1888). ↩
  12. This question came before the Supreme Court in the 2021 case United States v. Texas, but the Court dismissed that case without a substantive decision. 142 S. Ct. 522 (Mem.) (2021). ↩

ArtIII.S2.C1.13.3 Suits Against States

Controversies to which the United States is a party include suits brought by the federal government as plaintiff against states as party defendants.1 The first Supreme Court case involving the federal government suing a state arose from a late-nineteenth Century action by the United States to recover on bonds issued by North Carolina.2 While the parties did not raise the question of federal court jurisdiction over the suit, the Court, in deciding the case on its merits in favor of the state, tacitly assumed that it had jurisdiction to hear such cases.

Two years later, the State of Texas directly challenged the federal courts’ jurisdiction over it in response to a bill in equity the United States brought to determine the boundary between Texas and the Territory of Oklahoma.3 Texas, among other things, contended that the United States could not sue a state without the state’s consent. The Supreme Court held that it had jurisdiction over the suit. Emphasizing that under Article III federal jurisdiction encompasses cases to which the United States and a state are parties, Justice John Marshall Harlan noted that the Constitution made no exception for suits brought by the United States.4 With respect to the state’s argument that it had not consented to the suit, the Court concluded that Texas had given consent to be sued by the United States “when [it was] admitted to the Union upon an equal footing in all respects with the other States.”5

The Supreme Court routinely accepted jurisdiction over suits by the federal government against states in subsequent cases. In 1926, the Court decided a dispute between the United States and Minnesota over land patents that the United States had issued to Minnesota in breach of U.S. trust obligations to the Chippewa tribe.6 Similarly, in a 1931 case, the Court took jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries with the states.7 In 1947, the Court exercised jurisdiction over a suit the United States brought against California to determine ownership of and paramount rights over submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.8 The Court decided like suits against Louisiana and Texas in 1950.9

In contrast to the foregoing cases, in the 1935 case United States v. West Virginia, the Court dismissed a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers.10 While the Court stated that it “can no longer be doubted” that the Supreme Court’s original jurisdiction “includes cases brought by the United States against a state,”11 it concluded that the case before it was not justiciable because it presented “no actual or threatened interference with the authority of the United States.”12 West Virginia thus does not appear to cast doubt on the authority of the United States to sue a state in federal court. Instead, it instructs that such suits remain subject to generally applicable justiciability requirements.13

In addition to allowing the United States to initiate suits against the states, the Court has also, at times, allowed the federal government to intervene in suits between states.14

Notes
  1. The Eleventh Amendment and the common law doctrine of sovereign immunity bar suits against states by private individuals and by other states; however, those authorities do not bar suits against states by the federal government. See U.S. CONST. amend. XI; see also Amdt11.1 Overview of Eleventh Amendment, Suits Against States to Amdt11.6.4 Tort Actions Against State Officials. ↩
  2. United States v. North Carolina, 136 U.S. 211 (1890). ↩
  3. United States v. Texas, 143 U.S. 621 (1892). ↩
  4. Id. at 644. For additional discussion of the Supreme Court’s original jurisdiction, see ArtIII.S2.C2.2 Supreme Court Original Jurisdiction. ↩
  5. Id. at 642–46. This suit was specifically authorized by the Act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine ownership of Greer County. 26 Stat. 81, 92, § 25. See also United States v. Louisiana, 339 U.S. 699, 701–02 (1950). ↩
  6. United States v. Minnesota, 270 U.S. 181 (1926). For an earlier suit against a state by the United States, see United States v. Michigan, 190 U.S. 379 (1903). ↩
  7. United States v. Utah, 283 U.S. 64 (1931). ↩
  8. United States v. California, 332 U.S. 19 (1947). ↩
  9. United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950). See also United States v. Maine, 420 U.S. 515 (1975). ↩
  10. 295 U.S. 463 (1935). ↩
  11. Id. at 470. ↩
  12. Id. at 473. ↩
  13. For discussion of the various constitutional requirements related to justiciability, see generally Article III. ↩
  14. See Oklahoma v. Texas, 252 U.S. 372 (1920); Id. 258 U.S. 574, 581 (1922); Florida v. Georgia, 58 U.S. 478, 495 (1854). ↩

ArtIII.S2.C1.13.4 Suits Against the United States and Sovereign Immunity

In addition to suits brought by the federal government as a plaintiff, “Controversies to which the United States shall be a Party” may include cases brought against the United States as a defendant.1 Those cases fall within Article III’s grant of federal court jurisdiction;2 however, the doctrine of sovereign immunity may limit such suits.

While state sovereign immunity is rooted in part in the Eleventh Amendment,3 no provision of the Constitution expressly grants the federal government immunity from suit. Instead, most judges and commentators agree that federal sovereign immunity is a common law doctrine drawn from pre-Founding English law.4 Since the early years of the Republic, the Supreme Court has repeatedly adopted the position that the United States may not be sued unless it consents.5 The Court has applied the doctrine of sovereign immunity to bar suits from proceeding without consent against the federal government for actions of its agents or employees6 and against federal agencies7 and government corporations.8 The Court has further held that any waiver of sovereign immunity must come from an act of Congress; Executive officials are powerless either to waive such immunity or to confer jurisdiction on a federal court.9 In the 2019 case Thacker v. Tennessee Valley Authority, the Court rejected a separation of powers challenge to a statute that waived the immunity of a government-owned corporation.10

Congress has waived federal sovereign immunity through statutes such as the Administrative Procedure Act,11 the Federal Tort Claims Act,12 and the Tucker Act.13 In the absence of a waiver of sovereign immunity authorizing suits against the government itself, the Supreme Court has at times allowed suits to go forward against federal officials sued in their individual capacity.14 For instance, in Bivens v. Six Unknown Named Agents15 and its progeny, the Court allowed individuals to sue federal agents directly under the Constitution without a federal statute authorizing relief.16 More recent Supreme Court cases have construed Bivens narrowly.17

Notes
  1. U.S. CONST. art III, § 2, cl. 1. ↩
  2. In addition to falling within federal court jurisdiction as cases to which the United States is a party, these cases may also fall within federal court jurisdiction as cases arising under the Constitution or the laws or treaties of the United States. See ArtIII.S2.C1.11.1 Overview of Federal Question Jurisdiction. ↩
  3. See U.S. CONST. amend. XI; see also Amdt11.1 Overview of Eleventh Amendment, Suits Against States to Amdt11.6.4 Tort Actions Against State Officials. ↩
  4. See, e.g., ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 9.2 (5th ed. 2007). Compare The Siren, 74 U.S. (7 Wall.) 152, 153–54 (1869) (“It is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent.”); with Kennecott Copper Corp. v. State Tax Com’n, 327 U.S. 573, 580 (1946) (Frankfurter, J., dissenting) (“Though this immunity from suit without consent is embodied in the Constitution, it is an anachronistic survival of monarchical privilege, and runs counter to democratic notions of the moral responsibility of the State.”). ↩
  5. This rule first appeared in embryonic form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.” 2 U.S. (2 Dall.) 419, 478 (1793). In Cohens v. Virginia, also in dictum, Chief Justice John Marshall noted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” 19 U.S. (6 Wheat.) 264, 412 (1821). The issue was more directly in question in United States v. Clarke, where Chief Justice John Marshall stated that, as the United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” 33 U.S. (8 Pet.) 436, 444 (1834). See also United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419, 431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren, 74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122, 126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437–39 (1879). ↩
  6. Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922); Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (“there can be no legal right as against the authority that makes the law on which the right depends”). See also The Western Maid, 257 U.S. 419, 433 (1922); Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922); cf. 39 Ops. Atty. Gen. 559, 562 (1938). ↩
  7. Federal Housing Administration, Region No. 4 v. Burr, 309 U.S. 242, 244 (1940) (“[T]here can be no doubt that Congress has full power to endow the Federal Housing Administration with the government’s immunity from suit or to determine the extent to which it may be subjected to the judicial process.”). ↩
  8. Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). The Court has also held that Indian nations are exempt from suit without further congressional authorization. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940). ↩
  9. United States v. New York Rayon Co., 329 U.S. 654 (1947). Congress may also grant or withhold immunity from suit on behalf of government corporations. Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943). ↩
  10. 139 S.Ct. 1435 (2019). Specifically, the Court rejected an argument that allowing suits against the corporation “would conflict with the ‘constitutional scheme’—more precisely, with ‘separation-of-powers principles’—by subjecting the TVA’s discretionary conduct to ‘judicial second-guessing.’” Id. at 1441 (quoting Resp. Br.). ↩
  11. 5 U.S.C. § 702. ↩
  12. 28 U.S.C. § 2674. ↩
  13. 28 U.S.C. §§ 1346(a), 1491(a)(1). ↩
  14. In addition to the Bivens line of cases discussed infra, see, e.g., United States v. Lee, 106 U.S. 196 (1882). ↩
  15. 403 U.S. 388 (1971). Some have likened the holding in Bivens to the creation of federal common law. See, e.g., Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (“Analogizing Bivens to the work of a common-law court, petitioners and some of their amici make much of the fact that common-law claims against federal officers for intentional torts were once available. . . . With the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, . . . and no statute expressly creates a Bivens remedy.”); Correctional Services Corp. v. Malesko, 534 U.S. 61, (2001) (Scalia, J., concurring) (“Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition.”). Justice John Harlan’s concurrence in Bivens suggested that liability in that case was not based on common law. 403 U.S. at 403 (Harlan, J., concurring) (“I do not think that the fact that the interest is protected by the Constitution rather than statute or common law justifies the assertion that federal courts are powerless to grant damages in the absence of explicit congressional action authorizing the remedy.”). ↩
  16. See also Davis v. Passman, 442 U.S. 228 (1979), Carlson v. Green, 446 U.S. 14 (1980). ↩
  17. See, e.g., Egbert v. Boule, 2022 WL 2056291 (June 8, 2022). ↩