The Judicial Power—Federal Party Clause

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

—Judge Kenneth K. Lee

Introduction

The Federal Party Clause was almost an afterthought for the Framers because its purpose—establishing jurisdiction for cases involving the United States as a party—was so obvious. It was added to Article III at the end of the Constitutional Convention without any debate or discussion, and during the ratification debates, Federalists and Anti-Federalists agreed that federal courts under the new Constitution must have jurisdiction to hear cases in which the United States is a party.

Today, the Federal Party Clause is discussed primarily in the context of sovereign immunity: Did the United States waive its immunity from being sued? The clause states that federal jurisdiction extends to cases in which the United States is a “party.” But does this clause apply only when the United States is the plaintiff, or also when the United States is the defendant? The historical record suggests that the original understanding of this provision did not encompass cases in which the United States was a defendant—unless, of course, it had waived sovereign immunity—and the U.S. Supreme Court has confirmed that understanding. Litigants still argue about whether Congress has waived sovereign immunity in a particular case and, if so, the scope of that waiver.

The Constitutional Convention

The Framers generally agreed that the new Constitution should feature an independent judiciary shielded from legislative meddling.¹ They also agreed in principle that federal jurisdiction should extend to certain national matters and international affairs. They parted ways, however, on the precise scope of jurisdiction. During the Constitutional Convention, the Framers added and excised the types of cases that belong in federal court.² For example, delegates removed federal jurisdiction over piracies, felonies on the high seas, and captures—only to adopt draft language later that extended jurisdiction over “all cases arising under the Natl. laws: And to such other questions as may involve the Natl. peace & harmony.”³ That broad language was further modified by the time the Constitution was finalized.

On August 27, 1787, about three weeks before the Constitution was signed, James Madison of Virginia and Gouverneur Morris of Pennsylvania moved to insert language that would become the Federal Party Clause, extending jurisdiction over controversies “to which the U– S– shall be a party.”⁴ The delegates adopted the amendment unanimously without debate.⁵ This last-minute—and uncontroversial—amendment suggests that adding the Federal Party Clause merely corrected an oversight of an obvious proposition that the United States should have its case heard in federal court.

The Ratification Debates

While the Federalists and Anti-Federalists clashed on a wide range of issues, they agreed that federal courts should hear cases involving the United States as a party. In Federalist No. 80, Alexander Hamilton devoted only a single paragraph to arguing that cases “between the nation and its members or citizens, can only be “properly referred to the national tribunals” and that “[a]ny other plan would be contrary to reason, to precedent, and to decorum.” Brutus, a prominent Anti-Federalist, agreed. He explained that such cases belong in federal courts because “none but the general government, can, or ought to pass laws on their subjects.”⁶

Early Practice

The text of the Federal Party Clause refers only to the United States as a “party,” and there is some evidence that the Founding generation would have understood this term to include only cases in which the United States is a plaintiff.⁷ The Judiciary Act of 1789, for example, established jurisdiction for district courts for “all suits at common law where the United States sue.”⁸ Similarly, the act specified that circuit courts have jurisdiction in cases in which “the United States are plaintiffs, or petitioners.”⁹

Why did the Framers’ apparent understanding of the clause seemingly deviate from its text? We must examine the text within the context of the historical and traditional understanding of sovereign immunity. Under British common law, a sovereign enjoyed immunity, and the Framers agreed. As Hamilton explained in Federalist No. 81, “[i]t is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent.” Thus, when the Federal Party Clause referred to the United States as a “party,” it likely meant “plaintiff.” The Framers seem to have presumed that the United States could not be a defendant unless it agreed to waive its immunity.

Judicial Precedent

Four years after ratification, the Supreme Court addressed the Federal Party Clause. In Chisholm v. Georgia (1793), Chief Justice John Jay observed that for “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.”¹⁰

Two decades later, Dugan v. United States (1818) recognized that the United States did not need specific congressional authorization to sue in federal court.¹¹ Conversely, United States v. Clarke (1838) held that private litigants needed specific congressional authorization to sue the United States.¹² In other words, a federal lawsuit against the United States could proceed only if Congress authorized the suit and if sovereign immunity was waived in that particular case.¹³

A waiver of sovereign immunity must be express and unequivocal in the statutory text; any ambiguity will be construed in favor of immunity.¹⁴ While Congress need not use “magic words” to waive immunity, the “scope of Congress’ waiver [must] be clearly discernable from the statutory text in light of traditional interpretive tools.” If the waiver is not clear, then courts “take the interpretation most favorable to the Government.”¹⁵ Moreover, “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.”¹⁶

Perhaps the most prominent example of such a waiver is found in the Federal Tort Claims Act, which waives immunity for certain torts committed by federal employees.¹⁷ Also, in amending the Administrative Procedure Act in 1976, Congress allowed petitioners to seek relief (other than monetary damages) against federal agencies.¹⁸

Open Questions

• Is the Supreme Court’s jurisprudence about waiver supported by the original meaning of the Constitution? How unequivocal must a waiver be?
• Is the United States an entity distinct from federal officers acting in their official capacity for purposes of the Federal Party Clause?

1. Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. Penn. L. Rev. 741, 762 (1983). ↩︎
2. Id. at 764, 768–69, 773. ↩︎
3. Id. at 764, 769. ↩︎
4. 2 Farrand’s 430. ↩︎
5. Id. ↩︎
6. Storing 2.9.160. ↩︎
7. Robert J. Pushaw, Jr., Article III’s Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 Notre Dame L. Rev. 447, 506 (1993). ↩︎
8. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 76–77. ↩︎
9. Id., § 11 at 1 Stat.78. ↩︎
10. 2 U.S. 419, 475 (1793). ↩︎
11. 16 U.S. 172 (1818). ↩︎
12. 33 U.S. 436, 444 (1834); Cohens v. Virginia, 19 U.S. 264, 380 (1821). ↩︎
13. Fed. Aviation Admin. v. Cooper, 566 U.S. 284, 290 (2012). ↩︎
14. Id. ↩︎
15. Id. at 291. ↩︎
16. Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 287 (1983). ↩︎
17. 28 U.S.C. § 1346. ↩︎
18. 5 U.S.C. § 702. ↩︎