ArtIII.S2.C1.15.2 Right of the United States to Sue

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.

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 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

Footnotes
1
3 J. Story, Commentaries on the Constitution of the United States § 1274 (1833). back
2
Id. back
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). back
4
Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818). back
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). back
6
361 U.S. 39 (1960). back
7
Id. at 43. back
8
Id. back
9
362 U.S. 17 (1960). back
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). back
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). back
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). back