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.

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

Footnotes

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 the Eleventh Amendment 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 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 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, 437–439 (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 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).