Federal Party

The Heritage Guide to the Constitution

Federal Party

Article III, Section 2, Clause 1

The judicial Power shall extend to ...Controversies to which the United States shall be a Party....

Among the numerous jurisdictional grants to the new federal court system, one of the least controversial was the proposition that the federal courts should have jurisdiction over any case to which the United States was a party. The provision for jurisdiction over cases to which the United States is a party was a comparatively late addition to the Constitution, adopted long after the Committee of Detail had completed its work. It seemed to reflect nothing more than a correction of an oversight. As Alexander Hamilton said of this jurisdictional grant in The Federalist No. 80, “any other plan would be contrary to reason.” Even the Constitution’s most vigorous opponents in the Anti-Federalist camp acknowledged the logic of this position. Later, Chief Justice John Jay noted in Chisholm v. Georgia (1793) that federal jurisdiction over cases involving the United States was necessary “because in cases in which the whole people are interested, it would not be equal or wise to let any one state decide and measure out the justice due to others.”

Today, the interesting legal questions about this clause involve determinations of precisely what entity is the “United States” and when the United States has consented to be a party to a lawsuit.

The text of the Federal Party Clause, of course, allows for jurisdiction when the United States acts as a plaintiff, but that circumstance (in which the affirmative act of filing a suit is, effectively, also a consent to the jurisdiction of the court) is far less problematic or controversial than when the United States has been named as a party defendant. The Supreme Court early on held that the United States, as a legal entity, had an inherent right to bring suit without authorization from Congress, Dugan v. United States (1818), although the Judiciary Act of 1789 channeled civil suits brought by the United States to federal district courts.

The more difficult issue relates to the United States’ status as a defendant in a suit. The clause, while providing for federal jurisdiction over suits to which the United States is a party, does not specify the situations in which such suits are in fact permitted. When the United States is named as a defendant, the general rule has become that, absent a waiver, sovereign immunity shields the federal government and its agencies from suit. As Alexander Hamilton said, “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” The Federalist No. 81. Early Supreme Courts cases affirmed the doctrine. Cohens v. Virginia (1821); United States v. Clarke (1834). Consent can only be manifested when Congress passes a statute expressly waiving the United States’ claim of sovereign immunity from suit for a particular case or class of cases. The waiver must be unequivocal. FAA v. Cooper (2012). Further, “when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.” Block v. North Dakota ex rel. Board of Univ. and School Lands (1983).

Many examples of these waivers exist in the law today. Agencies, such as the Federal Deposit Insurance Corporation, are often created with the power to “sue or be sued.” And the United States frequently consents to subject itself to generally applicable laws, as it has done in permitting itself to be sued by private parties for alleged environmental violations. A most frequent source of suits against the United States, however, is the Federal Tort Claims Act of 1948, which waives the sovereign immunity of the United States for certain torts committed by federal employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” This provision captures a large host of conduct, ranging from medical malpractice of army doctors to traffic accidents of federal employees. Then, in 1976, an amendment to the Administrative Procedure Act waived sovereign immunity for suits against the United States that do not involve monetary damages. As a result of these various waivers, the Federal Party Clause has become a significant source of litigation in the federal courts.

Finally, it bears noting that the United States, as a distinct entity, may in many circumstances be distinguished from either federal officers acting in their official capacity or distinct federal entities and instrumentalities. The law regarding this distinction is complex. In some instances, for example, the United States may be substituted as a party for a federal official sued in his official capacity. In that situation the suit becomes grounded in the constitutional grant of jurisdiction over “controversies to which the United States is a party.” In other cases, the official or the instrumentality stands apart from the United States, and suits in federal court must rely on different jurisdictional grants, such as the statutory grant of federal-question jurisdiction.

Paul Rosenzweig

Founder, Red Branch Law & Consulting, PLLC

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)

Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818)

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)

United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1834)

Federal Housing Administration v. Burr, 309 U.S. 244 (1940)

United States v. Sherwood, 312 U.S. 584 (1941)

Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273 (1983)

FAA v. Cooper, 132 S. Ct. 1441 (2012)