CRS Annotated Constitution

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Suits Against States.—Controversies to which the United States is a party include suits brought against States as party defendants. The first such suit occurred in United States v. North Carolina,850 which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the State, the Court tacitly assumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court’s original jurisdiction did not extend to cases to which the United States is a party.851 Stressing the inclusion within the judicial power of cases to which the United States and a State are parties, the elder Justice Harlan pointed out that the Constitution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States “was given by Texas when admitted to the Union upon an equal footing in all respects with the other States.”852

Suits brought by the United States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over[p.746]land patents issued to the State by the United States in breach of its trust obligations to the Indian.853 In United States v. West Virginia,854 the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken 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.855 Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low–water mark and the three–mile limit.856 Like suits were decided against Louisiana and Texas in 1950.857

Immunity of the United States From Suit.—Pursuant to the general rule that a sovereign cannot be sued in its own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo 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.”858 In Cohens v. Virginia,859 also by way of dictum, Chief Justice Marshal asserted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke,860 where Chief Justice 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.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examina[p.747]tion.861 Indeed, it was not until United States v. Lee862 that the Court examined the rule and the reasons for it, and limited its application accordingly.

Since suits against the United States can be maintained only by permission, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed.863 Only Congress can take the necessary steps to waive the immunity of the United States from liability for claims, and hence officers of the United States are powerless by their actions either to waive such immunity or to confer jurisdiction on a federal court.864 Even when authorized, suits can be brought only in designated courts.865 These rules apply equally to suits by States[p.748]against the United States.866 Although an officer acting as a public instrumentality is liable for his own torts, Congress may grant or withhold immunity from suit on behalf of government corporations.867


850 136 U.S. 211 (1890).
851 United States v. Texas, 143 U.S. 621 (1892).
852 Id., 642–646. This suit, it may be noted, was specifically authorized by the Act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 92 , Sec. 25. See also United States v. Louisiana, 339 U.S. 699, 701–702 (1950).
853 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).
854 295 U.S. 463 (1935).
855 United States v. Utah, 283 U.S. 64 (1931).
856 United States v. California, 332 U.S. 19 (1947).
857 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)
858 2 Dall. (2 U.S.) 419, 478 (1793).
859 6 Wheat. (19 U.S.) 264, 412 (1821).
860 8 Pet. (33 U.S.) 436, 444 (1834).
861 United States v. McLemore, 4 How. (45 U.S.) 286 (1846); Hill v. United States, 9 How. (50 U.S.) 386, 389 (1850); De Groot v. United States, 5 Wall. (72 U.S.) 419, 431 (1867); United States v. Eckford, 6 Wall. (73 U.S.) 484, 488 (1868); The Siren, 7 Wall. (74 U.S.) 152, 154 (1869); Nichols v. United States, 7 Wall. (74 U.S.) 122, 126 (1869); The Davis, 10 Wall. (77 U.S.) 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437–439 (1879). “It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employee. Gibbons v. United States, 8 Wall. (75 U.S.) 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). The reason for such immunity as stated by Mr. Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is because ‘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). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority—which is clearly an agency of the United States—partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922). Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other Government–owned corporations have been held liable for their wrongful acts.” 39 Atty. Gen.559,562 (1938).
862 106 U.S. 196 (1882).
863 Lonergan v. United States, 303 U.S. 33 (1938). Waivers of immunity must be express. Library of Congress v. Shaw, 461 U.S. 273 (1983) (Civil Rights Act provision that “the United States shall be liable for costs the same as a private person” insufficient to waive immunity from awards of interest). The result in Shaw was overturned by a specific waiver. Civil Rights Act of 991, P.L. 102–166, 106 Stat. 1079 , Sec. 113, amending 42 U.S.C. Sec. 2000e –16. Immunity was waived, with limitations, for contracts and takings claims in the Tucker Act, 28 U.S.C. Sec. 1346 (a)(2). Immunity of the United States for the negligence of its employees was waived, again with limitations, in the Federal Tort Claims Act. 28 U.S.C. Sec. 1346 (b). For recent waivers of sovereign immunity, see P.L. 94–574, Sec. 1, 90 Stat. 2721 (1976), amending 5 U.S.C. Sec. 702 (waiver for nonstatutory review in all cases save for suits for money damages); P.L. 87–748, Sec. 1(a), 76 Stat. 744 (1962), 28 U.S.C. Sec. 1361 (giving district courts jurisdiction of mandamus actions to compel an officer or employee of the United States to perform a duty owed to plaintiff); Westfall Act, 102 Stat. 4563 , 28 U.S.C. Sec. 2679 (d) (torts of federal employees acting officially).

Supplement: [P. 747, add to n.863:]

See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC’s “sue– and–be–sued” clause waives sovereign immunity; but a Bivens implied cause of action for constitutional torts cannot be used directly against FSLIC).

864 United States v. New York Rayon Co., 329 U.S. 654 (1947).
865 United States v. Shaw, 309 U.S. 495 (1940). Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).
The earlier narrow interpretation of the exceptions to the waiver of immunity set forth in the Federal Tort Claims Act, 28 U.S.C. Sec. 1346 (b), gradually has given way to a liberal construction. Compare Dalehite v. United States, 346 U.S. 15 (1953), with Indian Towing Co. v. United States, 350 U.S. 61 (1955).
866 Minnesota v. United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a State to acquire a right of way over lands owned by the United States and held in trust for Indian allottees. See also Block v. North Dakota, 461 U.S. 273 (1983).
867 Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).
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