Article III, Section 3, Clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Even though the Court continued to enforce the adversity requirement into the mid-to-late Twentieth Century,1 it gradually started to apply the doctrine more flexibly. In the 1949 case of United States v. Interstate Commerce Commission, for example, the Court ruled that despite the adversity doctrine, a governmental entity acting in one capacity may sometimes sue itself or another agency of the same government.2 In that case, the United States, acting as a shipper performing wharfage services, filed a complaint with a now-defunct3 federal agency called the Interstate Commerce Commission (ICC) against certain railroads.4 The ICC ruled for the railroads and against the United States.5 The United States then filed a federal lawsuit to set the ICC’s order aside.6 To comply with a statute requiring any plaintiff challenging an ICC order to sue the United States, the United States—as the plaintiff challenging the ICC’s order—named itself as one of the defendants.7 Although the Court acknowledged that, under normal circumstances, the adversity requirement bars a litigant from suing itself in federal court,8 it decided that the adversity doctrine did not render the case nonjusticiable.9 The real controversy in ICC, the Court explained, was not between the United States and itself, but between the United States and the railroads.10 Thus, the court reasoned, the case presented a justiciable dispute between adverse parties.11

Similarly, in the 1974 case of United States v. Nixon, the Court determined that an intra-branch dispute between two executive officers was justiciable.12 In Nixon, a federal district court, at the request of a Special Prosecutor investigating an alleged conspiracy to defraud the United States and obstruct justice, had issued a subpoena duces tecum13 directing President Nixon to produce certain tape recordings and documents.14 President Nixon argued that the district court could not issue the subpoena15 because the dispute was an intra-branch controversy between two executive officers.16 The Court rejected President Nixon’s argument, reasoning that he and the Special Prosecutor were adverse enough to create a justiciable controversy.17 Because the Special Prosecutor’s interests conflicted with those of President Nixon, and because the dispute over the subpoena arose in a criminal case that fell comfortably within the federal judiciary’s traditional powers, the Court held that Nixon presented an adversarial dispute despite the executive branch’s presence on both sides of the controversy.18 As a result of cases like Nixon and ICC, federal courts seldom dismiss intergovernmental disputes on adversity grounds alone19 —at least when the relevant agencies are acting in different capacities.20

Footnotes

1

See, e.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam) (holding that case presented “no case or controversy within the meaning of Art[icle] III” because “both litigants desire[d] precisely the same result” ); Flast, 392 U.S. at 100 (noting “the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature” ) (internal citation omitted); Poe, 367 U.S. at 505 (Frankfurter, J.) (discussing “the Court’s refusal to entertain cases which disclosed a want of a truly adversary contest” or the lack of “a collision of actively asserted and differing claims” ).

2

337 U.S. 426, 429–31 (1949).

3

See ICC Termination Act of 1995, Pub. L. No. 104-88, § 101, 109 Stat. 803 (1995) ( “The Interstate Commerce Commission is abolished.” ).

4

337 U.S. at 428.

5

Id. at 429.

6

Id.

7

Id. (quoting 28 U.S.C. § 46 (1949)).

8

See id. at 430 ( “There is much argument with citation of many cases to establish the long-recognized general principle that no person may sue himself. Properly understood the general principle is sound, for courts only adjudicate justiciable controversies. They do not engage in the academic pastime of rendering judgments in favor of persons against themselves. Thus a suit filed by John Smith against John Smith might present no case or controversy which courts could determine.” ).

9

Id. at 431.

10

See id. at 430 ( “This suit . . . is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads.” ).

11

See id. ( “While this case is United States v. United States, et al., it involves controversies of a type which are traditionally justiciable.” ).

12

418 U.S. 683, 692 (1974).

13

A subpoena is “a writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Subpoena, Black’s Law Dictionary (11th ed. 2019). A subpoena duces tecum is “a subpoena ordering the witness to appear in court and to bring specified documents, records, or things.” Id. See also Fed. R. Crim. P. 17(c) (governing subpoenas duces tecum in federal criminal cases).

14

418 U.S. at 686–88.

15

Id. at 692.

16

Id. at 697.

17

See id. at 696–97.

18

Id. at 697.

19

Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893, 895 (1991). See also, e.g., Joseph W. Mead, Interagency Litigation and Article III, 47 Ga. L. Rev. 1217, 1219 (2013) (claiming that it is “surprisingly common” for courts to adjudicate “litigation between federal agencies” ).

20

See Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 128 (1995) (analyzing ICC and emphasizing that “the status of the Government as a statutory beneficiary or market participant must be sharply distinguished from the status of the Government as regulator or administrator” ).