A worthy champion for fourteenth amendment rights: The united states in parens patriae

Northwestern University Law Review

Volumn 92, Issue 1, 1997, Pages 111-172

  Yackle, Larry W ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347052914     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (316)

1. Steven A. Holmes, Clinton Decides to Join a Fight on Preferences, N.Y. TIMES, Dec. 21, 1996, at
2. I use the term "conservative" here and elsewhere advisedly - not in the neutral sense of "prudent," "careful," "orthodox," or "traditional," but in the everyday sense of popular discourse. To be "conservative" is thus to be inclined rightward with respect to American ideological politics, that is, toward the values and policies associated with the Republican Party platform. Cf. Mark V. Tushnet, A Republican Chief Justice, 88 MICH. L. REV. 1326, 1328 (1990) (book review) (arguing that Chief Justice Rehnquist's decisions typically reflect Republican Party positions).
3. Larry W. Yackle, The Habeas Hagioscope, 66 S. CAL. L. REV. 2331, 2349-53 (1993) [hereinafter The Habeas Hagioscope].
4. See MALCOLM M. FEELEY & EDWARD R. RUBIN, JUDICIAL POLICYMAKING AND PRISON REFORM (1997) (analyzing judicial policymaking generally and particularly in the context of prison litigation); DAVID KIRP, JUST SCHOOLS: THE IDEA OF RACIAL EQUALITY IN AMERICAN EDUCATION (1982) (describing the effort to desegregate the public schools); LARRY W. YACKLE, REFORM AND REGRET: THE STORY OF FEDERAL JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON SYSTEM 197-221 (1989) (describing the Supreme Court's retreat from earlier decisions encouraging large class action challenges to conditions in state prisons). For a recent reminder of some Justices' antipathy for public rights lawsuits and the remedies they seek, see Lewis v. Casey, 116 S. Ct. 2174, 2186-200 (1996) (Thomas, J., concurring).
5. See MALCOLM M. FEELEY & EDWARD R. RUBIN, JUDICIAL POLICYMAKING AND PRISON REFORM (1997) (analyzing judicial policymaking generally and particularly in the context of prison litigation); DAVID KIRP, JUST SCHOOLS: THE IDEA OF RACIAL EQUALITY IN AMERICAN EDUCATION (1982) (describing the effort to desegregate the public schools); LARRY W. YACKLE, REFORM AND REGRET: THE STORY OF FEDERAL JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON SYSTEM 197-221 (1989) (describing the Supreme Court's retreat from earlier decisions encouraging large class action challenges to conditions in state prisons). For a recent reminder of some Justices' antipathy for public rights lawsuits and the remedies they seek, see Lewis v. Casey, 116 S. Ct. 2174, 2186-200 (1996) (Thomas, J., concurring).
6. See MALCOLM M. FEELEY & EDWARD R. RUBIN, JUDICIAL POLICYMAKING AND PRISON REFORM (1997) (analyzing judicial policymaking generally and particularly in the context of prison litigation); DAVID KIRP, JUST SCHOOLS: THE IDEA OF RACIAL EQUALITY IN AMERICAN EDUCATION (1982) (describing the effort to desegregate the public schools); LARRY W. YACKLE, REFORM AND REGRET: THE STORY OF FEDERAL JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON SYSTEM 197-221 (1989) (describing the Supreme Court's retreat from earlier decisions encouraging large class action challenges to conditions in state prisons). For a recent reminder of some Justices' antipathy for public rights lawsuits and the remedies they seek, see Lewis v. Casey, 116 S. Ct. 2174, 2186-200 (1996) (Thomas, J., concurring).
7. See LARRY W. YACKLE, RECLAIMING THE FEDERAL COURTS 55-81 (1994) [hereinafter RECLAIMING THE FEDERAL COURTS].
8. In some instances, there may be independent reasons for faulting private enforcement. See Joseph F. Brodley, Antitrust Standing in Private Merger Cases: Reconciling Private Incentives and Public Enforcement Goals, 94 MICH. L. REV. 1 (1995) (explaining that some private litigants are denied standing to sue over antitrust violations because their economic interests do not always comport with public enforcement objectives - but arguing that the federal courts have other procedural means of ensuring that privately sponsored litigation is consistent with the public interest); Tamar Frankel, Implied Rights of Action, 67 VA. L. REV. 553, 570-71 (1981) (noting that private enforcement of the securities acts may be "ill-suited" to the deterrence objectives of those statutes - but also recommending devices for making private suits serve "a legitimate compensatory purpose").
9. In some instances, there may be independent reasons for faulting private enforcement. See Joseph F. Brodley, Antitrust Standing in Private Merger Cases: Reconciling Private Incentives and Public Enforcement Goals, 94 MICH. L. REV. 1 (1995) (explaining that some private litigants are denied standing to sue over antitrust violations because their economic interests do not always comport with public enforcement objectives - but arguing that the federal courts have other procedural means of ensuring that privately sponsored litigation is consistent with the public interest); Tamar Frankel, Implied Rights of Action, 67 VA. L. REV. 553, 570-71 (1981) (noting that private enforcement of the securities acts may be "ill-suited" to the deterrence objectives of those statutes - but also recommending devices for making private suits serve "a legitimate compensatory purpose").
10. I do not have in mind here those private litigants whose claims this conservative Court tends to promote in surprising, precedent-setting ways. E.g., Dolan v. City of Tigard, 114 S. Ct. 2309 (1994) (involving a private property claim); Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 113 S. Ct. 2297 (1993) (involving an attack on a race-conscious remedial scheme); see also Jack M. Beermann et al., The Supreme Court's Tilt to the Property Right: Procedural Due Process Protections of Liberty and Property Interests, 3 B.U. PUB. INT. L.J. 9 (1993). Obviously, the authority I want to establish would work not only for the needy citizens whose claims I hope to foster, but also for the comparatively well-heeled citizens and companies whose proprietary claims I find far less engaging. This is a blade that, once sharpened, can cut in both directions. As a practical matter, however, the wealthy will almost certainly have their own day in court wholly apart from any ability the United States may have to litigate on their behalf, and they will wish to press their own claims whether or not the Attorney General is ready, willing, and able to proceed. In any case, I cannot very well argue that the government can advance race discrimination claims on behalf of African-Americans, but is unable, on the same grounds, to champion timber industry claims under the Takings Clause. I only doubt that the government's participation in cases of the latter kind is likely to be needed in order to get those cases a federal hearing.
11. I do not have in mind here those private litigants whose claims this conservative Court tends to promote in surprising, precedent-setting ways. E.g., Dolan v. City of Tigard, 114 S. Ct. 2309 (1994) (involving a private property claim); Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 113 S. Ct. 2297 (1993) (involving an attack on a race-conscious remedial scheme); see also Jack M. Beermann et al., The Supreme Court's Tilt to the Property Right: Procedural Due Process Protections of Liberty and Property Interests, 3 B.U. PUB. INT. L.J. 9 (1993). Obviously, the authority I want to establish would work not only for the needy citizens whose claims I hope to foster, but also for the comparatively well-heeled citizens and companies whose proprietary claims I find far less engaging. This is a blade that, once sharpened, can cut in both directions. As a practical matter, however, the wealthy will almost certainly have their own day in court wholly apart from any ability the United States may have to litigate on their behalf, and they will wish to press their own claims whether or not the Attorney General is ready, willing, and able to proceed. In any case, I cannot very well argue that the government can advance race discrimination claims on behalf of African-Americans, but is unable, on the same grounds, to champion timber industry claims under the Takings Clause. I only doubt that the government's participation in cases of the latter kind is likely to be needed in order to get those cases a federal hearing.
12. Of course, the Court does not uniformly reject claims pressed by litigants of whom the Justices disapprove. The reports are filled with cases in which unappealing parties have obtained relief, notwithstanding what they said or did to get themselves into trouble with the authorities. Moreover, when the Court rejects claims put by litigants it finds unattractive, there invariably are other, ostensibly neutral, explanations. Finally, in some instances at least, the Court actually prefers plaintiffs from the peripheries of the social circle in hopes that its harsh treatment of rights where they are concerned will somehow appear more palatable to the rest of us, even though the precedents made in that way reach well beyond the context in which they are established. See Jack M. Beermann, Government Official Torts and the Takings Clause: Federalism and State Sovereign Immunity, 68 B.U. L. REV. 277, 298-99 n.89 (1988). All this conceded, however, there is ample evidence that results can, and often do, turn on the Court's reservations about the parties at bar.
13. See, e.g., Voting Rights Act of 1965, 42 U.S.C. § 1973aa-2 (1994) (authorizing suits for injunctive relief to enforce anti-discrimination rules with respect to voting); National Voter Registration Act of 1993, 42 U.S.C. § 1973gg-9 (1994) (authorizing suits for declaratory or injunctive relief with respect to violations of voter registration rules); Civil Rights Act of 1964, 42 U.S.C. § 2000a-5 (1994) (authorizing suits for injunctive relief in order to enforce an individual's right to equal enjoyment of public accommodations); Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1994) (authorizing suits for injunctive relief from discriminatory employment practices).
14. See, e.g., Voting Rights Act of 1965, 42 U.S.C. § 1973aa-2 (1994) (authorizing suits for injunctive relief to enforce anti-discrimination rules with respect to voting); National Voter Registration Act of 1993, 42 U.S.C. § 1973gg-9 (1994) (authorizing suits for declaratory or injunctive relief with respect to violations of voter registration rules); Civil Rights Act of 1964, 42 U.S.C. § 2000a-5 (1994) (authorizing suits for injunctive relief in order to enforce an individual's right to equal enjoyment of public accommodations); Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1994) (authorizing suits for injunctive relief from discriminatory employment practices).
15. Cf. FDIC v. Meyer, 114 S. Ct. 996 (1994) (confirming that the Federal Tort Claims Act does not authorize constitutional suits against the federal government).
16. Cf. Brodley, supra note 6, at 38-44 (explaining that public antitrust enforcement litigation cannot substitute for self-interested private actions in every instance).
17. I will not address the vexing problems presented if and when the Attorney General proceeds against another arm of the federal government. Intramural litigation of that kind is obviously awkward and freighted with theoretical and practical difficulty. It has been suggested, for example, that Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), reflects constitutional complications arising from the government "litigating with itself." RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 104 (4th ed. 1996) [hereinafter HART & WECHSLER], But see Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561 (suggesting that the Justices refused to allow the Attorney General to proceed ex officio in Hayburn's Case because they were concerned that he lacked both congressional and presidential authority to do so). Of course, there are special occasions when even intrabranch litigation is possible and perhaps even necessary. See, e.g., United States v. Nixon, 418 U.S. 683 (1974); see also infra notes 122-23 and accompanying text (discussing indications that the executive branch can represent United States citizens in lawsuits challenging the actions of federal officers).
18. I will not address the vexing problems presented if and when the Attorney General proceeds against another arm of the federal government. Intramural litigation of that kind is obviously awkward and freighted with theoretical and practical difficulty. It has been suggested, for example, that Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), reflects constitutional complications arising from the government "litigating with itself." RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 104 (4th ed. 1996) [hereinafter HART & WECHSLER], But see Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561 (suggesting that the Justices refused to allow the Attorney General to proceed ex officio in Hayburn's Case because they were concerned that he lacked both congressional and presidential authority to do so). Of course, there are special occasions when even intrabranch litigation is possible and perhaps even necessary. See, e.g., United States v. Nixon, 418 U.S. 683 (1974); see also infra notes 122-23 and accompanying text (discussing indications that the executive branch can represent United States citizens in lawsuits challenging the actions of federal officers).
19. I will not address the vexing problems presented if and when the Attorney General proceeds against another arm of the federal government. Intramural litigation of that kind is obviously awkward and freighted with theoretical and practical difficulty. It has been suggested, for example, that Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), reflects constitutional complications arising from the government "litigating with itself." RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 104 (4th ed. 1996) [hereinafter HART & WECHSLER], But see Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561 (suggesting that the Justices refused to allow the Attorney General to proceed ex officio in Hayburn's Case because they were concerned that he lacked both congressional and presidential authority to do so). Of course, there are special occasions when even intrabranch litigation is possible and perhaps even necessary. See, e.g., United States v. Nixon, 418 U.S. 683 (1974); see also infra notes 122-23 and accompanying text (discussing indications that the executive branch can represent United States citizens in lawsuits challenging the actions of federal officers).
20. On this point, Justice Breyer has recently been extremely candid: [T]he major function of an opinion is to explain to the audience of readers why it is that the Court has reached that decision. It's not to prove that you're right: you can't prove you're right, there is no such proof. . . . It is to explain as clearly as possible and as simply as possible what the reasons are for reaching this decision. In Justice Breyer's Opinion, a Footnote Has No Place, N.Y. TIMES, July 28, 1995, at B18. This point with respect to constitutional law in general is especially strong with respect to the law of federal courts in particular. See Michael Wells, Busting the Hart & Wechsler Paradigm, 11 CONST. COMMENTARY 557, 570-85 (1995) (remarking the notorious indeterminacy of the materials governing federal jurisdiction); see also Gene R. Nichol, Is There a Law of Federal Courts?, 96 W. VA. L. REV. 147 (1993) (collecting and evaluating various explanations for the phenomenon); cf. Michael Wells, Positivism and Antipositivism in Federal Courts Law, 29 GA. L. REV. 655 (1995) (noting the Supreme Court's refusal to be bound by its own precedents regarding the role of the federal courts).
21. On this point, Justice Breyer has recently been extremely candid: [T]he major function of an opinion is to explain to the audience of readers why it is that the Court has reached that decision. It's not to prove that you're right: you can't prove you're right, there is no such proof. . . . It is to explain as clearly as possible and as simply as possible what the reasons are for reaching this decision. In Justice Breyer's Opinion, a Footnote Has No Place, N.Y. TIMES, July 28, 1995, at B18. This point with respect to constitutional law in general is especially strong with respect to the law of federal courts in particular. See Michael Wells, Busting the Hart & Wechsler Paradigm, 11 CONST. COMMENTARY 557, 570-85 (1995) (remarking the notorious indeterminacy of the materials governing federal jurisdiction); see also Gene R. Nichol, Is There a Law of Federal Courts?, 96 W. VA. L. REV. 147 (1993) (collecting and evaluating various explanations for the phenomenon); cf. Michael Wells, Positivism and Antipositivism in Federal Courts Law, 29 GA. L. REV. 655 (1995) (noting the Supreme Court's refusal to be bound by its own precedents regarding the role of the federal courts).
22. On this point, Justice Breyer has recently been extremely candid: [T]he major function of an opinion is to explain to the audience of readers why it is that the Court has reached that decision. It's not to prove that you're right: you can't prove you're right, there is no such proof. . . . It is to explain as clearly as possible and as simply as possible what the reasons are for reaching this decision. In Justice Breyer's Opinion, a Footnote Has No Place, N.Y. TIMES, July 28, 1995, at B18. This point with respect to constitutional law in general is especially strong with respect to the law of federal courts in particular. See Michael Wells, Busting the Hart & Wechsler Paradigm, 11 CONST. COMMENTARY 557, 570-85 (1995) (remarking the notorious indeterminacy of the materials governing federal jurisdiction); see also Gene R. Nichol, Is There a Law of Federal Courts?, 96 W. VA. L. REV. 147 (1993) (collecting and evaluating various explanations for the phenomenon); cf. Michael Wells, Positivism and Antipositivism in Federal Courts Law, 29 GA. L. REV. 655 (1995) (noting the Supreme Court's refusal to be bound by its own precedents regarding the role of the federal courts).
23. On this point, Justice Breyer has recently been extremely candid: [T]he major function of an opinion is to explain to the audience of readers why it is that the Court has reached that decision. It's not to prove that you're right: you can't prove you're right, there is no such proof. . . . It is to explain as clearly as possible and as simply as possible what the reasons are for reaching this decision. In Justice Breyer's Opinion, a Footnote Has No Place, N.Y. TIMES, July 28, 1995, at B18. This point with respect to constitutional law in general is especially strong with respect to the law of federal courts in particular. See Michael Wells, Busting the Hart & Wechsler Paradigm, 11 CONST. COMMENTARY 557, 570-85 (1995) (remarking the notorious indeterminacy of the materials governing federal jurisdiction); see also Gene R. Nichol, Is There a Law of Federal Courts?, 96 W. VA. L. REV. 147 (1993) (collecting and evaluating various explanations for the phenomenon); cf. Michael Wells, Positivism and Antipositivism in Federal Courts Law, 29 GA. L. REV. 655 (1995) (noting the Supreme Court's refusal to be bound by its own precedents regarding the role of the federal courts).
24. U.S. CONST. art. II, § 3, cl. 4.
25. By running down the hierarchy between the President himself and an inferior officer in the field, I only mean to acknowledge that executive authority is typically realized outside the Oval Office. I do not enter the debate over whether the American presidency is "unitary" for various purposes. Cf. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992) (discussing that debate). Compare Steven G. Calabresi & Saikrishma B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994) (promoting the "unitary" executive model), with Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994) (concluding that the Executive is not "unitary"). Indeed, I do not in this Article mean to dig any deeper into executive power under Article II than is necessary to elaborate my own thesis.
26. By running down the hierarchy between the President himself and an inferior officer in the field, I only mean to acknowledge that executive authority is typically realized outside the Oval Office. I do not enter the debate over whether the American presidency is "unitary" for various purposes. Cf. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992) (discussing that debate). Compare Steven G. Calabresi & Saikrishma B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994) (promoting the "unitary" executive model), with Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994) (concluding that the Executive is not "unitary"). Indeed, I do not in this Article mean to dig any deeper into executive power under Article II than is necessary to elaborate my own thesis.
27. By running down the hierarchy between the President himself and an inferior officer in the field, I only mean to acknowledge that executive authority is typically realized outside the Oval Office. I do not enter the debate over whether the American presidency is "unitary" for various purposes. Cf. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992) (discussing that debate). Compare Steven G. Calabresi & Saikrishma B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994) (promoting the "unitary" executive model), with Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994) (concluding that the Executive is not "unitary"). Indeed, I do not in this Article mean to dig any deeper into executive power under Article II than is necessary to elaborate my own thesis.
28. 135 U.S. 1 (1890).
29. Toward the end of its opinion in Neagle, the Court pointed to a statute that arguably sufficed. Id. at 74-75. Yet the tenor of the opinion in chief suggests a wider rationale of constitutional magnitude.
30. In support of its result in Neagle, the Court recalled the case of Martin Koszta, a Hungarian national who had taken out American naturalization papers but had been arrested by Austrian authorities before he could file them. Arriving in port in command of the sloop St. Louis, Captain Ingraham learned that Koszta was being held in "close confinement" aboard the Hussar, an Austrian vessel. Ingraham seized the situation at once, trained his guns on the Hussar, and forced the Austrians to surrender their captive. Congress pinned a medal on Captain Ingraham, albeit no one could "lay his finger" on any "act of Congress" authorizing his bold action. Id. at 64. Justice Lamar and Chief Justice Fuller dissented in Neagle, distinguishing the Koszta affair as involving the Executive's special responsibility for foreign relations. Id. at 84-85 (Lamar, J., dissenting). Henry Monaghan has recently expressed concern about even that explanation for Captain Ingraham's conduct. It would not do, according to Monaghan, if the President got the idea that he is free to "commit acts of war" anywhere in the world whenever he considers that American citizens (and would-be citizens) need protection. Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 71 (1993). Lest the rest of us should find the prospect of rescue reassuring, Monaghan cites the Grenada and Panama invasions as illustrations of how a good thing can get out of hand. Id. I share Monaghan's concern, but, again, I am not here defending unilateral executive violence, but merely positing that we have certainly accepted it in the past and presumably continue to do so. That being the case, I offer executive lawsuits as a preferable alternative.
31. Monaghan is perfectly content with Neagle itself and regards that case as confirmation that the President has power to protect the federal government's "property" and "instrumentalities" from private interference. Id. at 69, 74. In cases under that heading, according to Monaghan, the President has authority not only to execute laws laid down by Congress, but also authority to establish his own law in the first instance - simply by forcing private individuals into line. Oddly, however, Monaghan sees "[l]ittle justification" for "extending the protective power analysis to the routine protection of the rights of private parties under federal law" and thus endorses the conventional view that the Executive must have statutory authority to take Fourteenth Amendment claims to federal court. Id. at 70 & n.334. I see things just the other way. Whatever sense it makes that the Executive should be able (in certain limited circumstances) to announce and implement his own regulations of private behavior, I think it makes a great deal of sense that the Executive should be able to sue to enforce existing constitutional law when state officials break it. That requires no executive "law making" at all, only execution - an especially modest and peaceable brand of execution at that. Finally, it is true that the narrow question in Neagle was whether the marshal was entitled to release from state custody or should have been held to stand trial in state court for killing Field's assailant. There may have been fair reasons to debate that question. Once again, however, my point is simple by comparison - that the executive branch of the national government ought to be given peaceful, judicially superintended options for setting about its duties.
32. I have traced some of these doctrines and their implications elsewhere. RECLAIMING THE FEDERAL COURTS, supra note 5.
33. E.g., Karahalios v. National Fed'n of Fed. Employees Local 1263, 489 U.S. 527 (1989) (finding no private right of action to enforce a federal statute and therefore dismissing the plaintiff's suit).
34. E.g., Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (finding no subject matter jurisdiction where the plaintiffs could not state a federal claim on the face of a well-pleaded complaint).
35. E.g., Allen v. Wright, 468 U.S. 737 (1984) (finding no standing in a class action case alleging racial discrimination).
36. E.g., Rizzo v. Goode, 423 U.S. 362 (1976) (finding claims of widespread police misconduct to be premature).
37. E.g., DeFunis v. Odegaard, 416 U.S. 312 (1974) (finding a dispute over the validity of an affirmative action plan to be moot and thus nonjusticiable).
38. E.g., O'Shea v. Littleton, 414 U.S. 488 (1974) (invoking traditional limits on injunctive relief in another action challenging police misconduct).
39. E.g., Samuels v. Mackell, 401 U.S. 66 (1971) (holding that a declaratory judgment is discretionary and refusing on that basis to issue declaratory relief in a constitutional setting).
40. E.g., Hans v. Louisiana, 134 U.S. 1 (1890) (invoking Eleventh Amendment immunity to defeat a federal constitutional claim); Davis v. Scherer, 468 U.S. 183 (1984) (invoking state officers' qualified immunity against a Fourteenth Amendment action for damages).
41. E.g., Younger v. Harris, 401 U.S. 37 (1971) (refusing on this ground to enjoin a statute that plainly violated the First Amendment).
42. E.g., Missouri v. Jenkins, 115 S. Ct. 2038 (1995) (limiting injunctive relief in a race discrimination case on the basis of generalized "federalism" concerns).
43. E.g., Steffel v. Thompson, 415 U.S. 452 (1974) (recognizing that this was so in a free speech case).
44. E.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (refusing to permit a suspect who had been assaulted by the police to sue for an injunction against future assaults).
45. E.g., Anderson v. Creighton, 483 U.S. 635 (1987) (rebuffing a police misconduct claim for damages).
46. E.g., Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941) (putting off consideration of a Fourteenth Amendment race discrimination claim).
47. E.g., Hicks v. Miranda, 422 U.S. 332 (1975) (dismissing a properly filed free speech suit in favor of state court litigation).
48. E.g., Steffel, 415 U.S. at 452 (acknowledging a properly filed federal action); Miranda, 422 U.S. at 349 (nonetheless holding that such an action should be dismissed in favor of subsequently filed proceedings in state court); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (holding that state proceedings are entitled to deference until the conclusion of direct review).
49. E.g., Allen v. McCurry, 449 U.S. 90 (1980) (invoking the Full Faith and Credit Statute to foreclose a Fourteenth Amendment claim).
50. E.g., Heck v. Humphrey, 114 S. Ct. 2364 (1994) (rejecting a due process claim).
51. E.g., Coleman v. Thompson, 501 U.S. 722 (1991) (establishing ever more demanding rules that typically foreclose federal consideration of claims in light of prisoners' procedural default in state court); McCleskey v. Zant, 499 U.S. 467 (1991) (applying the same standards to cases in which prisoners file second or successive federal petitions); Teague v. Lane, 489 U.S. 288 (1989) (typically barring the federal courts from enforcing "new" rules of constitutional law in federal habeas corpus proceedings).
52. Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
53. I have described these developments elsewhere. See Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381 (1996); The Habeas Hagioscope, supra note 3.
54. I have described these developments elsewhere. See Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381 (1996); The Habeas Hagioscope, supra note 3.
55. See, e.g., Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
56. See SUP. CT. R. 10 (describing the considerations governing review on certiorari). See generally HART & WECHSLER, supra note 12, at 1691-1714 (collecting materials on the Court's certiorari policy).
57. See Teague, 489 U.S. at 301.
58. See, e.g., Wright v. West, 505 U.S. 277, 293 (1992).
59. E.g., Murray v. Carrier, 477 U.S. 478, 496 (1986) (stating that "in an extraordinary case" a prisoner who shows that a constitutional violation probably resulted in an erroneous conviction need not also demonstrate "cause" in order to overcome procedural default in state court).
60. See, e.g., O'Neal v. McAninch, 115 S. Ct. 992 (1995) (holding that ties go to the prisoner when constitutional error may have influenced the jury's verdict); Schlup v. Delo, 115 S. Ct. 851 (1995) (attaching controlling significance to a prisoner's ability to link his claims to actual innocence); cf. Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming that in a capital case a "truly persuasive demonstration" of actual innocence would warrant federal habeas corpus relief if there is no available opportunity for state court litigation).
61. See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 116 S. Ct. 1529, 1534-35 (1996) (confirming that "associational" standing depends on the standing that members would have to proceed as individuals). In a like manner, the class action mechanism is useful only to avoid the occasional mootness problem. E.g., United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980).
62. See Estelle v. Justice, 426 U.S. 925, 929 (1976) (Rehnquist, J., joined by Burger, C.J. and Powell, J., dissenting from the denial of certiorari) (noting the question and urging the Court to consider it); United States v. Mississippi, 380 U.S. 128, 136 (1965) (finding it unnecessary to "discuss the power of the United States to bring [an action challenging the constitutionality of Mississippi's voting laws] without authorization by Congress"). In Justice, the district court had explicitly invited the Justice Department into a lawsuit originally filed by private litigants. That arguably aggravated the issue in that the United States was, then, not only a participant, but an "involuntary" participant. Id. at 928. See OWEN M. FISS, INJUNCTIONS 618-19 (1972) (recalling that in the 1960s many southern federal courts typically asked the Justice Department to appear as amicus curiae out of respect for the "extraordinary integrity and ability" of John Doar who led the Civil Rights Division's efforts at the time).
63. See Estelle v. Justice, 426 U.S. 925, 929 (1976) (Rehnquist, J., joined by Burger, C.J. and Powell, J., dissenting from the denial of certiorari) (noting the question and urging the Court to consider it); United States v. Mississippi, 380 U.S. 128, 136 (1965) (finding it unnecessary to "discuss the power of the United States to bring [an action challenging the constitutionality of Mississippi's voting laws] without authorization by Congress"). In Justice, the district court had explicitly invited the Justice Department into a lawsuit originally filed by private litigants. That arguably aggravated the issue in that the United States was, then, not only a participant, but an "involuntary" participant. Id. at 928. See OWEN M. FISS, INJUNCTIONS 618-19 (1972) (recalling that in the 1960s many southern federal courts typically asked the Justice Department to appear as amicus curiae out of respect for the "extraordinary integrity and ability" of John Doar who led the Civil Rights Division's efforts at the time).
64. E.g., United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980); United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979); United States v. Biloxi Mun. Sch. Dist., 219 F. Supp. 691 (S.D. Miss. 1963), aff'd sub nom. United States v. Madison County Bd. of Educ., 326 F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929 (1964); United States v. Madison County Bd. of Educ., 219 F. Supp. 60 (N.D. Ala. 1963), aff'd, 326 F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929 (1964); Allen v. County Sch. Bd., 28 F.R.D. 358 (E.D. Va. 1961). Sadly, these cases went largely without sustained academic criticism. I have found one good student commentary, however. See Note, Protecting the Public Interest: Non- statutory Suits by the United States, 89 YALE L.J. 118 (1979).
65. E.g., United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980); United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979); United States v. Biloxi Mun. Sch. Dist., 219 F. Supp. 691 (S.D. Miss. 1963), aff'd sub nom. United States v. Madison County Bd. of Educ., 326 F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929 (1964); United States v. Madison County Bd. of Educ., 219 F. Supp. 60 (N.D. Ala. 1963), aff'd, 326 F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929 (1964); Allen v. County Sch. Bd., 28 F.R.D. 358 (E.D. Va. 1961). Sadly, these cases went largely without sustained academic criticism. I have found one good student commentary, however. See Note, Protecting the Public Interest: Non-statutory Suits by the United States, 89 YALE L.J. 118 (1979).
66. 419 F. Supp. 358 (D. Md. 1976), aff'd, 563 F.2d 1121 (4th Cir. 1977).
67. 563 F.2d at 1123. In the wake of cases like Solomon, Congress enacted the Institutionalized Persons Act, 42 U.S.C. § 1977a (1994), which now authorizes the Attorney General to sue in federal court to vindicate the constitutional rights of inmates and patients confined in prisons and hospitals.
68. The amici states were Texas, Pennsylvania, and Connecticut. 419 F. Supp. at 361.
69. The organizations were the American Association on Mental Deficiency, the National Association for Retarded Citizens, and the National Coalition for Children's Justice. Id.
70. See supra note 4 and accompanying text.
71. Edward S. Northrop, The 1960s and 1970s, 50 MD. L. REV. 62, 63 (1991); see also Edward S. Northrop, The Metamorphosis of a Federal Court, MD. B.J., May 1981, at 4, 7 (listing federal statutes tending to increase federal court workloads).
72. Edward S. Northrop, The 1960s and 1970s, 50 MD. L. REV. 62, 63 (1991); see also Edward S. Northrop, The Metamorphosis of a Federal Court, MD. B.J., May 1981, at 4, 7 (listing federal statutes tending to increase federal court workloads).
73. 563 F.2d at 1129. Judge Butzner's opinion was ambiguous. He did not explicitly concur only in the judgment, and that suggests that he embraced Judge Winter's analysis as well as his result. Yet he concurred "specially" in order to "emphasize" the "narrow grounds" on which the case had been decided - which grounds, Judge Butzner did not specify. Id. To be sure, he immediately noted that the United States had brought suit "to enjoin the violation of rights secured to present and prospective mentally retarded patients of Rosewood State Hospital by the [E]ighth, [T]hirteenth, and [F]ourteenth [A]mendments." Id. That, in turn, might have been his way of flagging the "narrow grounds" on which the decision rested (and to which he subscribed). In truth, however, Judge Butzner just didn't make himself clear regarding the majority's handling of the Fourteenth Amendment issue before he moved to the different question whether the Justice Department might have sued to enforce the conditions under which the State of Maryland had accepted federal grant money. Butzner had previously held that the Attorney General could sue to enforce federal statutory standards accompanying funding programs. See United States v. County Sch. Bd., 221 F. Supp. 93 (E.D. Va. 1963). But see id. at 103-04 (noting that he was "not disposed" to depart from previous judgments in the Fourth Circuit in which the Attorney General had not been permitted to proceed on Fourteenth Amendment grounds alone).
74. In a dissent in United States v. Mississippi, 229 F. Supp. 925 (S.D. Miss. 1964), rev'd, 380 U.S. 128 (1965), Judge Brown dismissed the majority's concerns about suits by the Attorney General to eliminate racial discrimination in Mississippi's voter registration system. If legislative authorization was needed, he declared that the enforcement sections of the Fourteenth and Fifteenth Amendments would supply Congress with the necessary constitutional power to enact a suitable statute. But, he said, he "would have considerable doubt that specific legislation [was] needed" at all. Id. at 975. Brown saw no jurisdictional difficulty and, while admitting that the Attorney General's standing to sue on behalf of individual citizens might "present a problem," he said he agreed with Judge Wisdom, see infra note 61, that a statute was typically unnecessary when the government sued in circumstances that would give rise to a § 1983 suit by a private individual. Id. at 976. Whether Judge Brown meant to say that the Attorney General was free to press Fourteenth Amendment claims alone in the absence of statute is a bit unclear. At the critical juncture, he shifted emphasis to the Commerce Clause and the Fifteenth Amendment (which was implicated in the particular case at bar). Specifically, he said that "[a]part from the Fourteenth Amendment, the Commerce Clause there [i.e., in the case before Judge Wisdom], and the Fifteenth Amendment here, invest the national sovereign with the power to institute in its own Court appropriate judicial action 'to promote the interest of all' by eradicating engrained [sic] official patterns of conduct which 'collides [sic] with national policy as embodied in the Constitution.'" Id. (quoting United States v. City of Jackson, 318 F.2d 1, 14-15 (5th Cir. 1963) (Wisdom, J.)).
75. In a dissent in United States v. Mississippi, 229 F. Supp. 925 (S.D. Miss. 1964), rev'd, 380 U.S. 128 (1965), Judge Brown dismissed the majority's concerns about suits by the Attorney General to eliminate racial discrimination in Mississippi's voter registration system. If legislative authorization was needed, he declared that the enforcement sections of the Fourteenth and Fifteenth Amendments would supply Congress with the necessary constitutional power to enact a suitable statute. But, he said, he "would have considerable doubt that specific legislation [was] needed" at all. Id. at 975. Brown saw no jurisdictional difficulty and, while admitting that the Attorney General's standing to sue on behalf of individual citizens might "present a problem," he said he agreed with Judge Wisdom, see infra note 61, that a statute was typically unnecessary when the government sued in circumstances that would give rise to a § 1983 suit by a private individual. Id. at 976. Whether Judge Brown meant to say that the Attorney General was free to press Fourteenth Amendment claims alone in the absence of statute is a bit unclear. At the critical juncture, he shifted emphasis to the Commerce Clause and the Fifteenth Amendment (which was implicated in the particular case at bar). Specifically, he said that "[a]part from the Fourteenth Amendment, the Commerce Clause there [i.e., in the case before Judge Wisdom], and the Fifteenth Amendment here, invest the national sovereign with the power to institute in its own Court appropriate judicial action 'to promote the interest of all' by eradicating engrained [sic] official patterns of conduct which 'collides [sic] with national policy as embodied in the Constitution.'" Id. (quoting United States v. City of Jackson, 318 F.2d 1, 14-15 (5th Cir. 1963) (Wisdom, J.)).
76. In a dissent in United States v. Mississippi, 229 F. Supp. 925 (S.D. Miss. 1964), rev'd, 380 U.S. 128 (1965), Judge Brown dismissed the majority's concerns about suits by the Attorney General to eliminate racial discrimination in Mississippi's voter registration system. If legislative authorization was needed, he declared that the enforcement sections of the Fourteenth and Fifteenth Amendments would supply Congress with the necessary constitutional power to enact a suitable statute. But, he said, he "would have considerable doubt that specific legislation [was] needed" at all. Id. at 975. Brown saw no jurisdictional difficulty and, while admitting that the Attorney General's standing to sue on behalf of individual citizens might "present a problem," he said he agreed with Judge Wisdom, see infra note 61, that a statute was typically unnecessary when the government sued in circumstances that would give rise to a § 1983 suit by a private individual. Id. at 976. Whether Judge Brown meant to say that the Attorney General was free to press Fourteenth Amendment claims alone in the absence of statute is a bit unclear. At the critical juncture, he shifted emphasis to the Commerce Clause and the Fifteenth Amendment (which was implicated in the particular case at bar). Specifically, he said that "[a]part from the Fourteenth Amendment, the Commerce Clause there [i.e., in the case before Judge Wisdom], and the Fifteenth Amendment here, invest the national sovereign with the power to institute in its own Court appropriate judicial action 'to promote the interest of all' by eradicating engrained [sic] official patterns of conduct which 'collides [sic] with national policy as embodied in the Constitution.'" Id. (quoting United States v. City of Jackson, 318 F.2d 1, 14-15 (5th Cir. 1963) (Wisdom, J.)).
77. In United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y. 1970), Judge Frankel found no sufficient basis to distinguish between the Attorney General's conceded authority to seek judicial relief from burdens on interstate commerce and his authority, denied in cases like Solomon, to seek judicial relief from "large-scale denials of due process" under the Fourteenth Amendment. Id. at 1300. While Judge Frankel went as far as anyone has in the direction of my thesis, he still arguably stopped just short. His decision in Brand was couched in the alternative, i.e., on either the Commerce Clause or the Fourteenth Amendment explanation for the government's suit. With respect to the latter, he reached only a "longstanding and systematic practice" and not (yet?) an isolated violation of a single individual's rights. Id. at 1293, 1299.
78. In cases like Lewis v. Greyhound Corp., 199 F. Supp. 210 (M.D. Ala. 1961), Judge Johnson pioneered the argument that the United States could sue public and private plaintiffs in order to eliminate race discrimination from the channels of interstate commerce. Cf. infra notes 166-87 and accompanying text (discussing earlier executive suits to protect commerce from other forms of disruption). At the same time, Johnson recognized that race discrimination that could be ascribed to state and local officials also violated the Fourteenth Amendment, and he intimated (though he did not decide) that the presence of Fourteenth Amendment violations was not irrelevant to the Executive's ability to proceed. See. e.g., United States v. U.S. Klans, Knights of the Ku Klux Klan, Inc., 194 F. Supp. 897, 902-03 (M.D. Ala. 1961) (ultimately limiting injunctive relief to actions touching commerce).
79. In one of many iterations of the litigation over conditions in the Texas prison system, state authorities moved to dismiss the United States as an intervening party plaintiff. When the district court denied the motion, the state attorney general sought a writ of mandamus from the Fifth Circuit. With the case in that posture, Judge Tuttle unambiguously expressed his view that the United States could file civil actions to enforce the Fourteenth Amendment as an alternative, more effective, means of furthering the goals established by existing federal criminal statutes. In re Estelle, 516 F.2d 480, 486-87 (5th Cir. 1975), cert. denied, 426 U.S. 925 (1976). Tuttle did not speak for the full panel on this point, however, inasmuch as both Judge Morgan and Judge Godbold found independent reasons for withholding the writ. Id. at 485, 487-88.
80. In United States v. City of Jackson, 318 F.2d 1 (5th Cir. 1963), Judge Wisdom held for the court that the Attorney General needed no statutory authorization to seek a judicial order barring racial discrimination at a bus terminal. Along the way, he pointed out that to the extent race discrimination in the case could be ascribed to state and local officials, it also violated the Fourteenth Amendment. That point, in turn, invited the court "down the road to recognition of government standing to sue under the Fourteenth Amendment . . . ." Id. at 13-14. In the end, however, Judge Wisdom rested his decision entirely on the Commerce Clause ground. Id. at 16-17; cf. United States v. City of Jackson, 320 F.2d 870, 871-73 (5th Cir. 1963) (per curiam) (Bootle & Ainsworth, J.J., concurring) (disclaiming Judge Wisdom's speculation about Fourteenth Amendment suits). To the list of well-known judges in the text, I will add Judge Sam Pointer, who approved a suit by the United States for a declaration that the Alabama "antimiscegenation" law violated the Fourteenth Amendment. United States v. Brittain, 319 F. Supp. 1058 (N.D. Ala. 1970). In that particular case, however, the would-be husband was a soldier stationed at Ft. McClellan. Id. at 1060. Accordingly, the Executive's special responsibility for the military services was in play. Id. at 1060-61. Judge Pointer mentioned, for example, that the services would be more difficult to manage if command authorities had to take account of local laws purporting to restrict soldiers' ability to marry. Id. at 1061.
81. Solomon, 419 F. Supp. at 362 (emphasis added). Other courts reaching the same result as Judge Northrop were sometimes equally explicit regarding the ideological roots of their decisions. E.g., United States v. Madison County Bd. of Educ., 219 F. Supp. 60, 62 (N.D. Ala. 1963) (lamenting that "[o]ur cries to Washington for help have been so loud that they have muted the claims to local control and states' rights"), aff'd, 326 F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929 (1964).
82. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992).
83. E.g., U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1875 (1995) (Thomas, J., dissenting); United States v. Lopez, 115 S. Ct. 1624, 1642 (1995) (Thomas, J., concurring). For his part, Judge Winter adopted the same default position. He said he would reverse only if he was convinced of one or the other of two things: either that the suit was "explicitly" authorized by statute, or that it fit within a preexisting "judicially created doctrine of permitting a suit by the United States, despite lack of statutory authorization . . . ." Solomon, 563 F.2d at 1124.
84. E.g., U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1875 (1995) (Thomas, J., dissenting); United States v. Lopez, 115 S. Ct. 1624, 1642 (1995) (Thomas, J., concurring). For his part, Judge Winter adopted the same default position. He said he would reverse only if he was convinced of one or the other of two things: either that the suit was "explicitly" authorized by statute, or that it fit within a preexisting "judicially created doctrine of permitting a suit by the United States, despite lack of statutory authorization . . . ." Solomon, 563 F.2d at 1124.
85. Solomon, 419 F. Supp. at 362-63.
86. Id.
87. Id. at 369-70.
88. Id. at 370-72.
89. Apart, that is, from Judge Frankel's decision in Brand, which both Northrop and Winter discounted.
90. E.g., Georgia v. Pennsylvania R.R., 324 U.S. 439 (1945) (involving a suit by Georgia to protect its public railroad).
91. Solomon, 419 F. Supp. at 363-65.
92. Id. at 372 (emphasis added).
93. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1366-69 (1953) (elaborating on the classic case, Cary v. Curtis, 44 U.S. (3 How.) 236 (1845)).
94. E.g., United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 116 S. Ct. 1529, 1533 (1996) (concluding that "a straightforward reading" of a statute's text led to the conclusion that the statute authorized a private suit for damages).
95. E.g., Karahalios v. National Fed'n of Fed. Employees, 489 U.S. 527 (1989) (finding no sufficiently clear indication that a statute established a private right of action). The controlling question is said to be whether Congress had the "intent" to authorize private civil actions. Thompson v. Thompson, 484 U.S. 174, 179 (1988). That does not mean, however, that the Court has an abundance of patience with evidence of what members "actually had in mind." Id. While the Court insists that it can find legislative "intent" without express statutory language, it almost never does so. See id. at 188 (Scalia, J., concurring in the judgment) (reading the precedents to approach a general requirement that congressional "intent" to establish a right of action must be explicit and urging the Court to "get out of the business" of finding private rights of action implicit in legislative schemes). In Morse v. Republican Party of Va., 116 S. Ct. 1186 (1996), the Court held that § 10 of the Voting Rights Act of 1965 established a private right of action notwithstanding the Act's failure to say so explicitly. In that instance, however, the Court emphasized that, in 1965, Congress had acted against the backdrop of decisions under which implied private actions were much easier to find and acknowledged that the absence of explicit text might be fatal today. Id. at 1211. Even at that, four Justices dissented. Id. at 1238 (Thomas, J., dissenting, joined by Rehnquist, C.J., Scalia, J. and Kennedy, J.). The Court has not (formally) discarded precedents holding that, with respect to federal statutes that establish enforceable rights, the default position is that § 1983 provides a vehicle for private suits and Congress must make it pretty clear that some alternative enforcement mechanism occupies the field. E.g., Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106-07 (1989). I have expressed my own doubts about whether those cases will hold up. Of course, I would be pleased to be proven wrong. Compare RECLAIMING THE FEDERAL COURTS, supra note 5, at 236 n.40,
96. with Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 39-40 (taking a more optimistic view).
97. 28 U.S.C. § 1345 (1994).
98. E.g., United States v. Hill, 694 F.2d 258 (D.C. Cir. 1982); Marshall v. Gibson's Products, 584 F.2d 668 (5th Cir. 1978).
99. See United States v. Marion County Sch. Dist., 625 F.2d 607 (5th Cir.), cert. denied, 451 U.S. 910 (1980) (taking essentially this position).
100. Older Supreme Court cases are hard to classify. I suspect that some readers would put cases like United States v. American Bell Tel. Co., 128 U.S. 315 (1888), and United States v. San Jacinto Tin Co., 125 U.S. 273 (1888), in the section on "standing." I tend to think, though, that they fit just as well here and can fairly be cited for the proposition that the executive branch did not need statutory authority for going to federal court seeking injunctive relief against defendants who allegedly obtained federal patents by fraud. In San Jacinto in particular, the Court made it quite clear that Congress might limit executive authority if it wished, but the Court itself would not ignore a lawsuit brought in the absence of such a legislative restriction or prohibition. Id. at 284; see also Note, Nonstatutory Executive Authority to Bring Suit, 85 HARV. L. REV. 1566, 1567-68 (1972). But see Note, supra at 1568 (arguing that the Executive's authority in Bell and San Jacinto was fortified by the extensive legislative activity in the general fields in which those cases arose).
101. Older Supreme Court cases are hard to classify. I suspect that some readers would put cases like United States v. American Bell Tel. Co., 128 U.S. 315 (1888), and United States v. San Jacinto Tin Co., 125 U.S. 273 (1888), in the section on "standing." I tend to think, though, that they fit just as well here and can fairly be cited for the proposition that the executive branch did not need statutory authority for going to federal court seeking injunctive relief against defendants who allegedly obtained federal patents by fraud. In San Jacinto in particular, the Court made it quite clear that Congress might limit executive authority if it wished, but the Court itself would not ignore a lawsuit brought in the absence of such a legislative restriction or prohibition. Id. at 284; see also Note, Nonstatutory Executive Authority to Bring Suit, 85 HARV. L. REV. 1566, 1567-68 (1972). But see Note, supra at 1568 (arguing that the Executive's authority in Bell and San Jacinto was fortified by the extensive legislative activity in the general fields in which those cases arose).
102. For example, the authority to create federal substantive criminal law and to provide for its enforcement lies with Congress. And it ill befits the executive department to act without legislative direction. United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812). Even in that context, however, there are cases holding that when criminal prosecutions are inadequate to implement a federal policy, the United States can institute civil suits. E.g., Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967).
103. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). On the availability of lawsuits as the default position, see Carlson v. Green, 446 U.S. 14 (1980) and Davis v. Passman, 442 U.S. 228 (1979).
104. See INS v. Chadha, 462 U.S. 919 (1983) (invalidating one-House vetoes).
105. E.g., Landgraf v. USI Film Products, 114 S. Ct. 1483, 1496 (1994); United States v. R.L.C., 112 S. Ct. 1329, 1339 (1992) (Scalia, J., concurring, joined by Thomas, J.); see also Morse v. Republican Party of Va., 116 S. Ct. 1186, 1234 n.18 (1996) (Thomas, J., dissenting, joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.) (stating that there are "myriad reasons" why a majority of the members of Congress might have "wanted" to enact a bill that never became law but that the Court "must look to the extant text of the statute and see what Congress has in fact, and not in theory, enacted"); Musick v. Employers Ins., 113 S. Ct. 2085, 2096 (1993) (Thomas, J., dissenting) (insisting that "[c]ourts should not treat legislative . . . silence as a tacit license to accomplish what Congress . . . [is] unable or unwilling to do"); Tafflin v. Levitt, 493 U.S. 455, 472 (1990) (Scalia, J., concurring, joined by Kennedy, J.) (arguing that Congress cannot enact affirmative legislation "by simply talking about it" but only by enacting "a provision of law"). The Court's focus on the positive text of statutes is scarcely deferential to legislative policymaking. It demands especially strong majorities, which can insist on precise language and avoid the ambiguity that typically reflects compromise. See Landgraf, 114 S. Ct. at 1496 (insisting that "even the will of the majority does not become law unless it follows the path charted in Article I"). Nor, of course, is the concentration on affirmative text value-neutral. The Rehnquist Court often acknowledges that Congress has constitutional power to achieve some end that makes the Court itself uneasy - but only if the statute summoned to service employs exacting terms. Cf. Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 314 (1995) (arguing that the Court's insistence on clear legislative language "ratifies the choices of the powerful, and relegates the powerless to explicit legislative remedies they are unlikely to secure"). See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921 (1992).
106. E.g., Landgraf v. USI Film Products, 114 S. Ct. 1483, 1496 (1994); United States v. R.L.C., 112 S. Ct. 1329, 1339 (1992) (Scalia, J., concurring, joined by Thomas, J.); see also Morse v. Republican Party of Va., 116 S. Ct. 1186, 1234 n.18 (1996) (Thomas, J., dissenting, joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.) (stating that there are "myriad reasons" why a majority of the members of Congress might have "wanted" to enact a bill that never became law but that the Court "must look to the extant text of the statute and see what Congress has in fact, and not in theory, enacted"); Musick v. Employers Ins., 113 S. Ct. 2085, 2096 (1993) (Thomas, J., dissenting) (insisting that "[c]ourts should not treat legislative . . . silence as a tacit license to accomplish what Congress . . . [is] unable or unwilling to do"); Tafflin v. Levitt, 493 U.S. 455, 472 (1990) (Scalia, J., concurring, joined by Kennedy, J.) (arguing that Congress cannot enact affirmative legislation "by simply talking about it" but only by enacting "a provision of law"). The Court's focus on the positive text of statutes is scarcely deferential to legislative policymaking. It demands especially strong majorities, which can insist on precise language and avoid the ambiguity that typically reflects compromise. See Landgraf, 114 S. Ct. at 1496 (insisting that "even the will of the majority does not become law unless it follows the path charted in Article I"). Nor, of course, is the concentration on affirmative text value-neutral. The Rehnquist Court often acknowledges that Congress has constitutional power to achieve some end that makes the Court itself uneasy - but only if the statute summoned to service employs exacting terms. Cf. Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 314 (1995) (arguing that the Court's insistence on clear legislative language "ratifies the choices of the powerful, and relegates the powerless to explicit legislative remedies they are unlikely to secure"). See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921 (1992).
107. E.g., Landgraf v. USI Film Products, 114 S. Ct. 1483, 1496 (1994); United States v. R.L.C., 112 S. Ct. 1329, 1339 (1992) (Scalia, J., concurring, joined by Thomas, J.); see also Morse v. Republican Party of Va., 116 S. Ct. 1186, 1234 n.18 (1996) (Thomas, J., dissenting, joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.) (stating that there are "myriad reasons" why a majority of the members of Congress might have "wanted" to enact a bill that never became law but that the Court "must look to the extant text of the statute and see what Congress has in fact, and not in theory, enacted"); Musick v. Employers Ins., 113 S. Ct. 2085, 2096 (1993) (Thomas, J., dissenting) (insisting that "[c]ourts should not treat legislative . . . silence as a tacit license to accomplish what Congress . . . [is] unable or unwilling to do"); Tafflin v. Levitt, 493 U.S. 455, 472 (1990) (Scalia, J., concurring, joined by Kennedy, J.) (arguing that Congress cannot enact affirmative legislation "by simply talking about it" but only by enacting "a provision of law"). The Court's focus on the positive text of statutes is scarcely deferential to legislative policymaking. It demands especially strong majorities, which can insist on precise language and avoid the ambiguity that typically reflects compromise. See Landgraf, 114 S. Ct. at 1496 (insisting that "even the will of the majority does not become law unless it follows the path charted in Article I"). Nor, of course, is the concentration on affirmative text value-neutral. The Rehnquist Court often acknowledges that Congress has constitutional power to achieve some end that makes the Court itself uneasy - but only if the statute summoned to service employs exacting terms. Cf. Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 314 (1995) (arguing that the Court's insistence on clear legislative language "ratifies the choices of the powerful, and relegates the powerless to explicit legislative remedies they are unlikely to secure"). See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921 (1992).
108. E.g., Landgraf v. USI Film Products, 114 S. Ct. 1483, 1496 (1994); United States v. R.L.C., 112 S. Ct. 1329, 1339 (1992) (Scalia, J., concurring, joined by Thomas, J.); see also Morse v. Republican Party of Va., 116 S. Ct. 1186, 1234 n.18 (1996) (Thomas, J., dissenting, joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.) (stating that there are "myriad reasons" why a majority of the members of Congress might have "wanted" to enact a bill that never became law but that the Court "must look to the extant text of the statute and see what Congress has in fact, and not in theory, enacted"); Musick v. Employers Ins., 113 S. Ct. 2085, 2096 (1993) (Thomas, J., dissenting) (insisting that "[c]ourts should not treat legislative . . . silence as a tacit license to accomplish what Congress . . . [is] unable or unwilling to do"); Tafflin v. Levitt, 493 U.S. 455, 472 (1990) (Scalia, J., concurring, joined by Kennedy, J.) (arguing that Congress cannot enact affirmative legislation "by simply talking about it" but only by enacting "a provision of law"). The Court's focus on the positive text of statutes is scarcely deferential to legislative policymaking. It demands especially strong majorities, which can insist on precise language and avoid the ambiguity that typically reflects compromise. See Landgraf, 114 S. Ct. at 1496 (insisting that "even the will of the majority does not become law unless it follows the path charted in Article I"). Nor, of course, is the concentration on affirmative text value-neutral. The Rehnquist Court often acknowledges that Congress has constitutional power to achieve some end that makes the Court itself uneasy - but only if the statute summoned to service employs exacting terms. Cf. Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 314 (1995) (arguing that the Court's insistence on clear legislative language "ratifies the choices of the powerful, and relegates the powerless to explicit legislative remedies they are unlikely to secure"). See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921 (1992).
109. See Eskridge & Frickey, supra note 63.
110. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981).
111. See Dellmuth v. Muth, 491 U.S. 223 (1989). The Court has also said that Congress must expressly consent to state regulation that would otherwise violate the Commerce Clause. See Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 960 (1982). In that instance, the doctrine of clear statement works against ultra vires state action.
112. Dames & Moore v. Regan, 453 U.S. 654, 677-78 (1981) (reading federal statutes loosely to authorize executive orders and making a point of saying that Congress had not explicitly legislated against the President's conduct).
113. By this I mean elegant in the aesthetic, symmetrical sense.
114. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
115. U.S.C. § 1983 (1994).
116. Cf. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 734 (1989) (apparently citing with approval lower court decisions refusing to allow private plaintiffs to hold municipalities liable on a respondeat superior theory by styling their actions as "implied" Bivens actions pursuant to the Fourteenth Amendment on its own bottom); cf. infra notes 204-06 and accompanying text (discussing the availability of respondeat superior liability more generally).
117. See United States v. South Carolina, 445 F. Supp. 1094 (D.S.C. 1977), aff'd sub nom. National Educ. Ass'n v. South Carolina, 434 U.S. 1026 (1978); accord Zentgraf v. Texas A & M Univ., 492 F. Supp. 265, 272 (S.D. Tex. 1980) (allowing the United States to intervene in a lawsuit launched by private litigants in order to seek monetary relief on statutory claims under the authority of the Civil Rights Act of 1964 and on Fourteenth Amendment claims under the authority of § 1983).
118. In many minds, only private parties can be "injured" within the meaning of § 1983. There are numerous cases, however, in which cities, towns, and states have appeared as § 1983 plaintiffs. E.g., Pennsylvania v. Porter, 659 F.2d 306 (3d Cir. 1981); Support Ministries for Persons with AIDS v. Village of Waterford, 799 F. Supp. 272 (N.D.N.Y. 1992); cf. City of Milwaukee v. Saxbe, 546 F.2d 693, 703 (7th Cir. 1976) (refusing to permit a city to press a § 1983 action against federal officials-but only because the defendants could not be said to have acted under color of state law). I see no self-evident reason why the United States cannot play the same game.
119. Relatedly, it may be argued that an implied right of action for the enforcement of a constitutional provision is plaintiff-specific, such that the existence of a right of action allowing one plaintiff or class of plaintiffs to enforce a constitutional standard (like the Fourteenth Amendment) does not necessarily connote the existence of a right of action for others - like the United States. The Court has described the "right of action" question as "whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court." Davis v. Passman, 442 U.S. 228, 239 n. 18 (1979) (emphasis added). Yet the law of federal courts is complicated enough already, and it is hard to see what value would be served by carving the "right of action" question up still further and elaborating a body of judge-made law (apart from standing law) on whose right of action we are talking about.
120. The question is an old one. In Kenosho v. Bruno, 412 U.S. 507 (1973), the Court held that on the basis of the precedents then in place, particularly Monroe v. Pape, 365 U.S. 167 (1961), the plaintiffs could not name municipalities as defendants in a § 1983 action and, for that reason, could not invoke a district court's jurisdiction pursuant to 28 U.S.C. § 1343. At the same time, the Court took seriously the possibility that jurisdiction could rest on the general federal-question statute, 28 U.S.C. § 1331, provided the then-necessary amount in controversy was established. Since a § 1331 lawsuit would equally require a right-of-action analogue, the Court appeared to be suggesting that the Fourteenth Amendment itself could supply it - implicitly. Kenosha, 412 U.S. at 514.
121. The Supreme Court has never decided whether § 1983 forecloses private "implied" actions under the Fourteenth Amendment. Cf. HART & WECHSLER, supra note 12, at 1131-32 (discussing arguably analogous cases that leave the question open). So far as I am aware, the Court has never been asked to decide whether the mere existence of § 1983 precludes a suit by the United States itself.
122. See Bandes, supra note 83 (contending that suits pursuant to the Constitution itself should be governed by constitutional standards in all respects).
123. See United States v. Solomon, 419 F. Supp. 358, 370-72 (D. Md. 1976), aff'd, 563 F.2d 1121 (4th Cir. 1977).
124. I want to place emphasis here on the current environment, because it seems to me clear that only the current Court takes the position I describe in the text to extremes. Not that there are no older precedents. In United States v. California, 332 U.S. 19 (1947), the Court allowed the Attorney General to litigate the government's rights in submerged land off California, even though Congress had refused on two recent occasions to authorize a suit against California expressly by statute. In that instance, however, there was arguably no need for a special statute regarding California, inasmuch as a more general statute appeared to provide all the authority the Attorney General might want. In truth, the Court in that case probably only refused to treat the failure to enact a California-specific statute as an implicit repeal of the general statute already in place. See id. at 26-28. Still, the Court also declined to consider a joint resolution quitclaiming the land in question to California - because the President had vetoed the resolution bill and it therefore had no force as federal law. Id. at 28.
125. E.g., Allen v. Wright, 468 U.S. 737, 750-52 (1984).
126. Of course, Congress may establish additional nonconstitutional standing requirements and often does so. E.g., Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399-400 (1987) (describing and applying the "zone of interest" requirement).
127. E.g., United States v. Hays, 115 S. Ct. 2431, 2435 (1995).
128. For a more detailed account (and critique) of this body of doctrine and illustrative citations, see RECLAIMING THE FEDERAL COURTS, supra note 5, at 51-79.
129. The precedents are sparse and, where they exist, fairly weak. In United States v. West Virginia, 295 U.S. 463 (1935), for example, the Court insisted that a suit by the United States must be a "case" or "controversy" within the contemplation of Article III and dismissed an original action against a state because it was not yet clear that the state meant to act on its "difference of opinion" regarding the navigability of a river. Id. at 472; cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 n.12 (1984) (referring in dictum to standing barriers to suits by the United States). But see Ann Woolhandler & Michael G. Collins, State Standing, 81 VA. L. REV. 387, 502 (1995) (acknowledging the argument that ordinary standing doctrine should be inapplicable to suits by individual states).
130. The precedents are sparse and, where they exist, fairly weak. In United States v. West Virginia, 295 U.S. 463 (1935), for example, the Court insisted that a suit by the United States must be a "case" or "controversy" within the contemplation of Article III and dismissed an original action against a state because it was not yet clear that the state meant to act on its "difference of opinion" regarding the navigability of a river. Id. at 472; cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 n.12 (1984) (referring in dictum to standing barriers to suits by the United States). But see Ann Woolhandler & Michael G. Collins, State Standing, 81 VA. L. REV. 387, 502 (1995) (acknowledging the argument that ordinary standing doctrine should be inapplicable to suits by individual states).
131. Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150 (1970).
132. See Flast v. Cohen, 392 U.S. 83, 95 (1968).
133. See Lewis v. Casey, 116 S. Ct. 2174, 2181 n.3 (1996) (explaining that Flast was mistaken to the extent it suggested that standing rules only assure adversarial presentation); see also Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 891 (1983) (making the point); cf. Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 299 (1990) (explaining that the "personal stake" requirement may actually invite plaintiffs with "trivial or tenuousfederal claims into the federal forum to "argue the important constitutional claims of absentees").
134. See Lewis v. Casey, 116 S. Ct. 2174, 2181 n.3 (1996) (explaining that Flast was mistaken to the extent it suggested that standing rules only assure adversarial presentation); see also Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 891 (1983) (making the point); cf. Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 299 (1990) (explaining that the "personal stake" requirement may actually invite plaintiffs with "trivial or tenuousfederal claims into the federal forum to "argue the important constitutional claims of absentees").
135. See Lewis v. Casey, 116 S. Ct. 2174, 2181 n.3 (1996) (explaining that Flast was mistaken to the extent it suggested that standing rules only assure adversarial presentation); see also Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 891 (1983) (making the point); cf. Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 299 (1990) (explaining that the "personal stake" requirement may actually invite plaintiffs with "trivial or tenuousfederal claims into the federal forum to "argue the important constitutional claims of absentees").
136. See United States v. Olin Corp., 606 F. Supp. 1301, 1307 (N.D. Ala. 1985) (collecting judicial statements of reassurance on this point). In an era in which there is so much suspicion of government, it may be necessary to concede that the Executive's enormous resources might also be misplaced-so that defendants are overwhelmed and forced to settle merely to escape the Attorney General's net. Cf. Recent Case, 84 HARV. L. REV. 1930, 1936 (1971) (expressing concern that defendants who have done nothing wrong might be subject to "harassment" at the hands of government lawyers). I hope it is not overly complacent of me to think that abuses of that kind are the least of our worries in this field.
137. See Allen v. Wright, 468 U.S. 737, 752 (1984); accord Lewis v. Casey, 116 S. Ct. 2174, 2181 n.3 (1996).
138. See Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 474 (1982); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J., concurring) (contending that standing rules keep courts open so that the public can know who is invoking judicial power to contest the policies chosen by elected officials and their agents).
139. See Lujan, 504 U.S. at 562.
140. Id. at 572-73 (invalidating a "citizen standing" statute to the extent it purported to confer standing on individuals who lacked the constitutionally required "injury in fact").
141. Id. at 577 (expressly invoking standing doctrine to protect the President's "take Care" authority).
142. It is true that ordinary standing doctrine has been applied to suits by states and municipalities, albeit typically without reflection. E.g., Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877 (10th Cir. 1992); Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989); City of New York v. Heckler, 578 F. Supp. 1109 (E.D.N.Y.), aff'd, 742 F.2d 729 (2d Cir. 1984); Illinois ex rel. Scott v. Landrieu, 500 F. Supp. 826 (N.D. Ill. 1980); see also Wyoming v. Oklahoma, 502 U.S. 437, 469 (1992) (Scalia, J., dissenting) (relying on the nonconstitutional "zone of interest" test with respect to a state plaintiff). When, however, courts focus on the self-evident differences that governmental litigation may present, they express doubts. In Pennsylvania v. Porter, 659 F.2d 306 (3d Cir. 1981), for example, Judge Gibbons acknowledged that Pennsylvania itself had an interest as "sovereign" in seeing that its agents complied with the law. Accordingly, the state "by its very nature" was "capable of being injured in ways that private litigants [could not] be." Thus "conventional indicia of injury in fact to private litigants" were "not particularly relevant." Id. at 318 n.16. In cases involving states as plaintiffs, the federal separation-of-powers justification for standing doctrine operates much as it would with respect to suits by private litigants. When, however, the executive branch of the national government seeks a federal forum, the separation-of-powers considerations cut in the other direction.
143. United States v. Solomon, 419 F. Supp. 358, 372 (D. Md. 1976), aff'd, 563 F.2d 1121 (4th Cir. 1977).
144. In the course of upholding the Civil Rights Act of 1957 in United States v. Raines, 362 U.S. 17 (1960), the Court had no difficulty recognizing "the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights." Id. at 27.
145. Solomon, 419 F. Supp. at 362.
146. This is only to acknowledge that having standing to sue in an Article III court is separate and distinct from having a right of action to enforce a legal standard via judicial proceedings. See RECLAIMING THE FEDERAL COURTS, supra note 5, at 62-66.
147. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
148. See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 116 S. Ct. 1529, 1534-35 (1996) (stating the doctrine governing "associational" standing); Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977) (same); see also Westlands Water Dist. v. United States, 850 F. Supp. 1388 (E.D. Cal. 1994) (permitting a unit of government to sue on behalf of its constituents). See generally Self-Insurance Inst. of Am. v. Korioth, 993 F.2d 479, 484 (5th Cir. 1993).
149. If it is difficult to find a constitutional barrier to standing in a case like Solomon, it is all the more difficult to lay hands on a serious nonconstitutional impediment. Let's keep in mind that we are talking about limits on the government's ability to use its own courts to enforce the Constitution. Congress may be able to erect statutory standing requirements for private litigants to meet (above the constitutional floor). E.g., Air Courier Conference v. American Postal Workers Union, 498 U.S. 517 (1991) (finding that while the plaintiffs met the baseline "injury" prerequisite for constitutional standing they failed the "zone of interest" test established by the relevant federal statute). But legislation that denies standing to the executive branch in a case in which constitutional standing rules are met? That is another matter entirely. Certainly it would be unpersuasive to contend, again in this context, that Congress has attempted, let alone accomplished, any such heroic feat merely by failing to pass statutes that authorize government suits affirmatively. In a like manner, the Court's "prudential" standing rule against "third party" suits is unavailing. Actions by the Attorney General would seem to fit the capacious exceptions to the general rule against "third party" suits, even if they are thought to fall outside the scope of the "associational" standing cases. See Tileston v. Ullman, 318 U.S. 44 (1943). As I will explain in a moment, however, suits by the United States as a representative of its citizens are more typically (and more fruitfully) understood under the parens patriae rubric - wherein the government's interests, too, are recognized and accorded decisive weight. See infra text accompanying notes 143-44.
150. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982). Cities, counties, and like political subdivisions are traditionally understood to be creatures of the state, with no independent sovereign or quasi-sovereign status. On that basis, they are typically denied parens patriae capacity. See In re Multidistrict Vehicle Air Pollution, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045 (1973); Prince George's County v. Levi, 79 F.R.D. 1 (D. Md. 1977); Board of Superiors v. United States, 408 F. Supp. 556 (E.D. Va. 1976). A unit of local government that cannot proceed in parens patriae may, however, be able to establish standing on some independent basis - e.g., as an organization representing the interests of its "members." See Westlands Water Dist. v. United States, 850 F. Supp. 1388 (E.D. Cal. 1994).
151. 262 U.S. 447 (1923).
152. In Mellon, the Court refused to allow Massachusetts to proceed in parens patriae in a suit against an agent of the federal government and explained its decision on the basis of constitutional structure: While the State, under some circumstances, may sue in that [parens patriae] capacity for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the federal government In that field, it is the United States, and not the State, which represents them as parens patriae. Id. at 485-86 (citation omitted) (emphasis added).
153. Pennsylvania v. Porter, 659 F.2d 306, 316 (3d Cir. 1981) (Gibbons, J.); see also, e.g., Multidistrict Vehicle Air Pollution, 481 F.2d at 131 (mentioning the ability of the United States to sue in parens patriae); Mt. Vernon Mortgage Corp. v. United States, 236 F.2d 724 (D.C. Cir. 1956), cert. denied, 352 U.S. 988 (1957) (sustaining a parens patriae suit to preserve a public foundation's assets).
154. See infra notes 213-17 and accompanying text.
155. In Sanitary District v. United States, 266 U.S. 405 (1925), the United States obtained an injunction prohibiting Illinois from diverting water from Lake Michigan. The Court approved the suit despite the absence of an authorizing statute in part on the ground that the Attorney General had standing "not only to remove obstruction to interstate and foreign commerce . . . but also . . . on the footing of an ultimate sovereign interest in the [Great] Lakes." Id. at 425-26. The Court explained that the government's interests seemed to be "stronger than those that ha[d] established a similar standing for a State, as the interests of the nation [were] more important than those of any State." Id. at 426. It is possible to read Sanitary District to rest on the government's proprietary interest in navigable waterways. The Court's express words, however, together with the precedents to which the Court referred, indicate that standing was understood to depend on the Attorney General's ability to vindicate the national welfare rather than some largely fictitious national "title" to Lake Michigan. See supra notes 103-13 and accompanying text (questioning whether suits by the United States should be subject to ordinary standing doctrine).
156. See United States v. Texas, 143 U.S. 621 (1892).
157. If the government's ability to file Fourteenth Amendment suits were once established, any attempts to press such suits on the Supreme Court originally would almost certainly be denied in the Court's discretion. E.g., United States v. Nevada, 412 U.S. 534 (1973) (explaining that the invocation of original jurisdiction is discretionary - even when the United States is the moving party).
158. Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907) (holding that a state proceeding in parens patriae could obtain equitable relief that would have evaded a private litigant); cf. General Tel. Co. v. EEOC, 446 U.S. 318 (1980) (reading the Equal Employment Opportunity Act to allow the EEOC to obtain class-wide relief without first being certified as a representative of a class pursuant to FED. R. CIV. P. 23 - on the theory that the EEOC was not merely the representative of private citizens but also could vindicate the public interest). Historically, the point was that a state proceeding in parens patriae represented both the "general interests of its citizenry" and its own "residual proprietary interest" in the land or other property at stake. Woolhandler & Collins, supra note 103, at 450 n.243.
159. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 602 (1982).
160. See infra notes 230-34 and accompanying text.
161. See infra notes 233-47 and accompanying text.
162. See Snapp, 458 U.S. at 602.
163. Id.; see also, e.g., Pennsylvania ex rel. Rafferty v. Philadelphia Psychiatric Ctr., 356 F. Supp. 500 (E.D. Pa. 1973) (refusing to permit Pennsylvania to sue officials at a state hospital for alleged violations of a single employee's Fourteenth Amendment rights). Some lower court decisions in point distinguish permissible from impermissible parens patriae suits on the basis of the relief sought. If the parens patriae plaintiff seeks declaratory or injunctive relief only, the suit is easily deemed to be in service of the public interest in that the judgment potentially benefits a wide range of individuals now and in the future. If, however, the parens patriae plaintiff seeks compensatory relief for identifiable individuals, the suit may be seen as an unjustifiable effort to advance the personal claims of private citizens.
164. E.g., New York ex rel. Abrams v. Seneci, 817 F.2d 1015, 1017 (2d Cir. 1987); California v. Frito-Lay, Inc., 474 F.2d 774, 775-76 (9th Cir.), cert. denied, 412 U.S. 908 (1973); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 110 n.12 (1984), discussed infra in note 208. I am unpersuaded that the very capacity of a state or the United States to proceed in the parens patriae form turns on the particular relief for which litigation is undertaken. At least some of the decisions in this vein may actually be interpretations of the federal statute that state plaintiffs seek to enforce against private wrongdoers. Both Seneci and Frito-Lay were antitrust cases. If they purport to stand for some broader limitation on parens patriae actions, they are simply ill-advised. I will return to the government's ability to seek monetary relief later. See infra notes 250-70 and accompanying text.
165. Snapp, 458 U.S. at 607.
166. Id.
167. Id.
168. Id. at 609; see also Support Ministries for Persons with AIDS v. Village of Waterford, 799 F. Supp. 272, 275 (N.D.N.Y. 1992) (allowing New York to proceed on behalf of state residents with AIDS - even though only fifteen individuals were immediately affected by the defendant's actions). In the nineteenth century, the Court said in United States v. San Jacinto Tin Co., 125 U.S. 273, 285-86 (1888), that the government could not institute suit to rescind an allegedly invalid land patent if the suit was entirely for the benefit of an individual and the United States had neither an independent pecuniary interest nor any relevant obligation to the general public. In that case, however, the Court found it sufficient that the United States was protecting the integrity of federal patents - even though it was clear that the suit was for the benefit of a single individual, who stood to get the land himself if the government was successful and, indeed, had signed a bond indemnifying the government in order to persuade the Attorney General to proceed. Id. at 286-87.
169. Id. at 609; see also Support Ministries for Persons with AIDS v. Village of Waterford, 799 F. Supp. 272, 275 (N.D.N.Y. 1992) (allowing New York to proceed on behalf of state residents with AIDS - even though only fifteen individuals were immediately affected by the defendant's actions). In the nineteenth century, the Court said in United States v. San Jacinto Tin Co., 125 U.S. 273, 285-86 (1888), that the government could not institute suit to rescind an allegedly invalid land patent if the suit was entirely for the benefit of an individual and the United States had neither an independent pecuniary interest nor any relevant obligation to the general public. In that case, however, the Court found it sufficient that the United States was protecting the integrity of federal patents - even though it was clear that the suit was for the benefit of a single individual, who stood to get the land himself if the government was successful and, indeed, had signed a bond indemnifying the government in order to persuade the Attorney General to proceed. Id. at 286-87.
170. Snapp, 458 U.S. at 607; accord Secretary of Labor v. Turnage, 657 F. Supp. 1033, 1035-36 (D.P.R. 1987) (refusing to permit Puerto Rico to proceed in parens patriae on behalf of a single citizen who feared reprisals for his criticism of the Veterans Administration and wished to be evaluated at a different VA hospital).
171. E.g., Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 & n.6 (8th Cir. 1985); Pennsylvania v. Porter, 659 F.2d 306, 315-16 (3d Cir. 1981) (Gibbons, J.); see also California v. Frito-Lay, Inc., 333 F. Supp. 977, 980-82 (C.D. Cal. 1971) (relying on private individuals' inability to generate documentary evidence).
172. E.g., Pennsylvania v. Glickman, 370 F. Supp. 724, 728 (W.D. Pa. 1974) (holding that Pennsylvania could maintain a parens patriae suit challenging Pittsburgh's racially discriminatory employment policies because race discrimination "would unquestionably impair the welfare of Pennsylvania's citizenry").
173. E.g., Porter, 659 F.2d at 328-29 (Garth, J., concurring in part, dissenting in part).
174. If private individuals' lack of standing were crucial, the cases allowing states to join pending lawsuits as parens patriae plaintiffs would be questionable. E.g., Village of Waterford, 799 F. Supp. at 272; Glickman, 370 F. Supp. at 724; cf. Diamond v. Charles, 476 U.S. 54, 68-69 (1986) (rejecting the argument that a litigant's status as an intervenor established standing to maintain an appeal in the absence of the original defendant - albeit formally leaving open the question whether a party who satisfies the standard for intervention before a district court must meet any independent Article III standing requirement).
175. If private individuals' lack of standing were crucial, the cases allowing states to join pending lawsuits as parens patriae plaintiffs would be questionable. E.g., Village of Waterford, 799 F. Supp. at 272; Glickman, 370 F. Supp. at 724; cf. Diamond v. Charles, 476 U.S. 54, 68-69 (1986) (rejecting the argument that a litigant's status as an intervenor established standing to maintain an appeal in the absence of the original defendant - albeit formally leaving open the question whether a party who satisfies the standard for intervention before a district court must meet any independent Article III standing requirement).
176. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430-31 (1976) (allowing the United States to proceed when the claims of individual plaintiffs had become moot); cf. Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (explaining that a state could obtain an injunction that would have been unavailable to a private litigant - albeit without mentioning the standing of either). The best illustrations are cases in which individuals might share only the kind of "generalized grievances" that will not suffice for standing and cases in which individuals lack standing to seek prospective relief. See Porter, 659 F.2d at 315 (Gibbons, J.) (making the point regarding prospective relief); cf. City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (holding that a suspect who had been physically abused by the application of a choke hold by city police officers had standing to sue for compensatory damages, but lacked standing to seek an injunction against similar mistreatment in the future). On this issue, Robert Bork is only half right. See Barnes v. Kline, 759 F.2d 21, 49 n.8 (D.C. Cir. 1985) (Bork, J., dissenting) (acknowledging that a state could proceed in parens patriae where private citizens might have sued on their own but contending that a state could not act on behalf of individuals who themselves lacked standing).
177. For criticism of the decisions linking private plaintiffs' standing to the form of relief sought, see Richard H. Fallon, Jr., Of Justiciability. Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1 (1984).
178. Missouri v. Illinois, 180 U.S. 208 (1901).
179. See Nebbia v. New York, 291 U.S. 502, 537 (1934) (proclaiming the modern understanding that a state is "free to adopt whatever economic policy may reasonably be deemed to promote public welfare"); see also Berman v. Parker, 348 U.S. 26, 32 (1954) (explaining that when a state legislature has enacted a statute "the public interest has been declared in terms well-nigh conclusive").
180. Ann Woolhandler and Michael Collins have made essentially this point. Woolhandler & Collins, supra note 103, at 475-77. Yet where I find it pleasing to contemplate, they see it as an occasion for regret. For if parens patriae standing expands to keep pace with the ballooning of the police power in this century, governmental litigants may squeeze individual plaintiffs off the playing field. Id. at 503-04. I am quite sure that Woolhandler and Collins are in earnest. Yet they seem to have fallen into a common conservative trap. Their premise is all wrong, you see; private plaintiffs are already routinely excluded by virtue of the many door-closing devices I described earlier. See supra text accompanying notes 19-44. The addition of parens patriae suits will not displace private suits, but, by contrast, may make up for their loss. In the circumstances in which we find ourselves, barring parens patriae suits in order to ensure that private plaintiffs will be able to press their own claims in federal court is rather like eliminating public assistance programs in order to ensure that impoverished people will be able to pull themselves up by their own bootstraps. I have said that I would prefer that individuals were able to litigate their own claims and we were not forced to seek a worthy champion by way of the parens patriae form. See supra text accompanying note 11. But as long as "unworthy" plaintiffs are denied entry, we have to find another way. Woolhandler and Collins acknowledge this point, but they resist enlarging state standing to sue as an appropriate answer and ask vaguely for some other remedy. Id. at 504. They do not say it in so many words, but I have the impression they would think no better of my thesis. I guess I am less patient. Cf. Note, supra note 79, at 1574-79 (actually proposing that by allowing the President to sue over Fourteenth Amendment claims we might distract him from devoting time where it might better be spent - lobbying for new legislation!).
181. On the general prohibition against one state projecting its substantive law beyond its borders, see BMW of N. Am. v. Gore, 116 S. Ct. 1589 (1996).
182. So far as I am aware, no such argument has even occurred to lawyers and judges handling parens patriae suits by individual states. See infra notes
183. See infra notes 191-94 and accompanying text.
184. See United States v. Brittain, 319 F. Supp. 1058 (N.D. Ala. 1970) (explaining that the government's parens patriae attack on a state antimiscegenation statute should not be dismissed as moot after the prosecuted couple crossed the state line to get married because the statute implicated more than the interests of the two people immediately charged with violating it).
185. It matters not, of course, that only the citizens of a particular state, rather than citizens of the United States generally, are primarily affected. The national government has a direct relationship with individual citizens, wherever they may reside. That much, at least, was settled in the Bank Case. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05 (1819).
186. United States v. Original Knights of Ku Klux Klan, 250 F. Supp. 330, 349-50 (E.D. La. 1965).
187. See Parratt v. Taylor, 451 U.S. 527 (1981) (involving a single instance of alleged misconduct on the part of an unknown state officer acting without benefit of stated policy); see also, e.g., Pennsylvania ex rel. Rafferty v. Philadelphia Psychiatric Ctr., 356 F. Supp. 500 (E.D. Pa. 1973) (involving the discharge of one nurse from a state mental health center).
188. Cf. Brittain, 319 F. Supp. at 1061 (finding a parens patriae suit by the United States particularly appropriate in order to create an authoritative judicial decision invalidating a state statute - which decision would permit the state attorney general to advise local probate judges to ignore the statute in future).
189. The trouble with the Philadelphia Psychiatric Center case was that Pennsylvania failed to demonstrate that the treatment of a single employee was part of a pattern or carried implications for other employees and potential employees. 356 F. Supp. at 505. Instead, the state purported to act on its own behalf and on behalf of citizens in various relationships to the hospital, but offered only the most conclusory statement of the public interests threatened by the hospital's behavior. Id. If a more rigorous showing of quasi-sovereign interests had been made, the result would have been different. Certainly if the case had previously been in state court and had produced a state precedent approving the employee's discharge, the situation would have been quite different.
190. See Pennsylvania v. Porter, 659 F.2d 306, 316 (3d Cir. 1981) (Gibbons, J.) (stating that "[t]he presence or absence of an authorizing statute" bears not on the government's standing to sue in an Article III court but rather on "federal separation of powers concerns"); accord Note, supra note 79, at 1570-71 (treating a general separation-of-powers analysis as distinct from standing).
191. See supra text accompanying note 62.
192. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
193. 158 U.S. 564 (1895).
194. 343 U.S. at 635-38 (concurring opinion).
195. When Congress speaks clearly, we either have no discernible separation-of-powers issue at all, or we have one of those extremely rare confrontations between the two political branches.
196. 343 U.S. at 638-39 (Jackson, J., concurring).
197. Id. at 640-55.
198. If Solomon is placed in the third category, I should think the case was still wrongly decided. There may be many instances in which Congress has ultimate power over subject matter, such that if Congress explicitly prohibits the President from acting, it follows, as a constitutional matter, that the President must stay his hand. E.g., U.S. CONST. art. IV, § 3, cl. 2 (assigning to Congress the power to dispose of federal property); United States v. California, 332 U.S. 19, 27 (1947) (stating that Congress might bar the Executive from prosecuting claims that the government's property had been converted). If there is any such exclusive authority in Congress regarding enforcement of the Fourteenth Amendment, I am unaware of it.
199. For a recent account of the episode, see OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE 1888-1910, ch. 3 (1993).
200. In re Debs, 158 U.S. 564, 586 (1895).
201. United States v. Solomon, 419 F. Supp. 358 (D. Md. 1976), aff'd, 563 F.2d 1121 (4th Cir. 1977); accord Note, supra note 79, at 1573-74.
202. 158 U.S. at 586.
203. U.S. CONST. amend. XIV, § 5 (establishing legislative power in Congress to enforce the Fourteenth Amendment).
204. See Monaghan, supra note 18, at 65 (understanding the Court in Debs to have assumed that the Commerce Clause addressed private action but pronouncing that view "wrong"). The same goes for the government's action in the Pentagon Papers Cases, New York Times v. United States, 403 U.S. 713 (1971), where all there was to go on was "the President's own conception of the national interest." Monaghan, supra note 18, at 72.
205. Accord Note, supra note 49, at 137-38 (explaining that the Executive does not make substantive federal law merely by launching a "nonstatutory" lawsuit).
206. Solomon, 419 F. Supp. at 366.
207. E.g., United States v. City of Jackson, 318 F.2d 1 (5th Cir. 1962); United States v. City of Shreveport, 210 F. Supp. 36 (W.D. La. 1962); United States v. Lassiter, 203 F. Supp. 20 (W.D. La. 1962); United States v. City of Montgomery, 201 F. Supp. 590 (M.D. Ala. 1962); cf. Boynton v. Virginia, 364 U.S. 454 (1960) (holding that a bus terminal restaurant's refusal to serve an African-American violated the Interstate Commerce Act); Morgan v. Virginia, 328 U.S. 373 (1946) (holding that a state statute requiring racially segregated seating assignments on interstate buses violated the Commerce Clause). For a history of these decisions and related developments, see Robert G. Dixon, Jr., Civil Rights in Air Transportation and Government Initiative, 49 VA. L. REV. 205 (1963); Robert G. Dixon, Jr., Civil Rights in Transportation and the ICC, 31 GEO. WASH. L. REV. 198 (1962); see also Louis H. Pollak, The Supreme Court and the States: Reflections on Boynton v. Virginia, 49 CAL. L. REV. 15 (1961) (arguing that an even narrower statutory ground was available in Boynton).
208. E.g., United States v. City of Jackson, 318 F.2d 1 (5th Cir. 1962); United States v. City of Shreveport, 210 F. Supp. 36 (W.D. La. 1962); United States v. Lassiter, 203 F. Supp. 20 (W.D. La. 1962); United States v. City of Montgomery, 201 F. Supp. 590 (M.D. Ala. 1962); cf. Boynton v. Virginia, 364 U.S. 454 (1960) (holding that a bus terminal restaurant's refusal to serve an African- American violated the Interstate Commerce Act); Morgan v. Virginia, 328 U.S. 373 (1946) (holding that a state statute requiring racially segregated seating assignments on interstate buses violated the Commerce Clause). For a history of these decisions and related developments, see Robert G. Dixon, Jr., Civil Rights in Air Transportation and Government Initiative, 49 VA. L. REV. 205 (1963); Robert G. Dixon, Jr., Civil Rights in Transportation and the ICC, 31 GEO. WASH. L. REV. 198 (1962); see also Louis H. Pollak, The Supreme Court and the States: Reflections on Boynton v. Virginia, 49 CAL. L. REV. 15 (1961) (arguing that an even narrower statutory ground was available in Boynton).
209. Solomon, 419 F. Supp. at 367-68; see also supra notes 58, 61, and accompanying text.
210. Monaghan, supra note 18, at 65; see also FISS, supra note 166, at 73 (noting that the term "emergency" did not appear in the Court's opinion). If, indeed, Debs had involved an emergency of a magnitude suggesting a "breakdown of civil government," the Executive would have had statutory authority to act pursuant to 10 U.S.C. §§ 332-34. Monaghan, supra note 18, at 34-35 & 66 n.314.
211. Solomon, 419 F. Supp. at 364.
212. See ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW 222-23 (1960) (recalling the Debs decision as evidence of the Court's "onesidedness in behalf of the wealthy classes").
213. 426 U.S. 833 (1976).
214. 269 F. Supp. 826, 852-55 (D. Md. 1967) (Northrop, J., dissenting).
215. National League, 426 U.S. at 855 (overruling Maryland v. Wirtz, 392 U.S. 183 (1968)).
216. Solomon, 419 F. Supp. at 367.
217. See, e.g., New York v. United States, 505 U.S. 144 (1992) (reviving the Tenth Amendment yet again - to uncertain effect); see also H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993); Mark V. Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623 (1994).
218. See, e.g., New York v. United States, 505 U.S. 144 (1992) (reviving the Tenth Amendment yet again - to uncertain effect); see also H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993); Mark V. Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623 (1994).
219. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (expressly overruling National League).
220. Solomon, 419 F. Supp. at 367.
221. See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).
222. Solomon, 419 F. Supp. at 366, 368 (emphasis added).
223. WARREN ZEVON, Lawyers, Guns, and Money, on EXCITABLE BOY (Elektra Records 1978).
224. Justice Brewer saw Debs in precisely this stark way: [I]s there no other alternative than the use of force on the part of the executive authorities whenever obstructions arise to the freedom of interstate commerce or the transportation of the mails? Is the army the only instrument by which rights of the public can be enforced and the peace of the nation preserved? Grant that any public nuisance may be forcibly abated either at the instance of the authorities, or by any individual suffering private damage therefrom, the existence of this right of forcible abatement is not inconsistent with nor does it destroy the right of appeal in an orderly way to the courts for a judicial determination, and an exercise of their powers by writ of injunction and otherwise to accomplish the same result. . . . When the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the individual will consent to waive his right to the use of force and await its action. In re Debs, 158 U.S. 564, 582-83 (1895).
225. See supra notes 142-44 and accompanying text.
226. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI.
227. Hans v. Louisiana, 134 U.S. 1 (1890) (reaffirmed in Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996)). The literature on the Eleventh Amendment and the decision in Hans is both critical and voluminous. E.g., JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); Martha Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988). See generally Seminole Tribe, 116 S. Ct. at 1145-85 (Souter, J., dissenting) (urging the Court to overrule Hans on the basis of the criticisms leveled against that case in the academic journals); HART & WECHSLER, supra note 12, at 1047-56 (collecting additional citations).
228. Hans v. Louisiana, 134 U.S. 1 (1890) (reaffirmed in Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996)). The literature on the Eleventh Amendment and the decision in Hans is both critical and voluminous. E.g., JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); Martha Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988). See generally Seminole Tribe, 116 S. Ct. at 1145-85 (Souter, J., dissenting) (urging the Court to overrule Hans on the basis of the criticisms leveled against that case in the academic journals); HART & WECHSLER, supra note 12, at 1047-56 (collecting additional citations).
229. Hans v. Louisiana, 134 U.S. 1 (1890) (reaffirmed in Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996)). The literature on the Eleventh Amendment and the decision in Hans is both critical and voluminous. E.g., JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); Martha Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988). See generally Seminole Tribe, 116 S. Ct. at 1145-85 (Souter, J., dissenting) (urging the Court to overrule Hans on the basis of the criticisms leveled against that case in the academic journals); HART & WECHSLER, supra note 12, at 1047-56 (collecting additional citations).
230. Hans v. Louisiana, 134 U.S. 1 (1890) (reaffirmed in Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996)). The literature on the Eleventh Amendment and the decision in Hans is both critical and voluminous. E.g., JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); Martha Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988). See generally Seminole Tribe, 116 S. Ct. at 1145-85 (Souter, J., dissenting) (urging the Court to overrule Hans on the basis of the criticisms leveled against that case in the academic journals); HART & WECHSLER, supra note 12, at 1047-56 (collecting additional citations).
231. Hans v. Louisiana, 134 U.S. 1 (1890) (reaffirmed in Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996)). The literature on the Eleventh Amendment and the decision in Hans is both critical and voluminous. E.g., JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); Martha Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988). See generally Seminole Tribe, 116 S. Ct. at 1145-85 (Souter, J., dissenting) (urging the Court to overrule Hans on the basis of the criticisms leveled against that case in the academic journals); HART & WECHSLER, supra note 12, at 1047-56 (collecting additional citations).
232. Hans v. Louisiana, 134 U.S. 1 (1890) (reaffirmed in Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996)). The literature on the Eleventh Amendment and the decision in Hans is both critical and voluminous. E.g., JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); Martha Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988). See generally Seminole Tribe, 116 S. Ct. at 1145-85 (Souter, J., dissenting) (urging the Court to overrule Hans on the basis of the criticisms leveled against that case in the academic journals); HART & WECHSLER, supra note 12, at 1047-56 (collecting additional citations).
233. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
234. See Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam).
235. See Ex parte Young, 209 U.S. 123 (1908). But see Seminole Tribe, 116 S. Ct. at 1114 (indicating that Congress can displace an action under Young by statute).
236. See Ex parte Young, 209 U.S. 123 (1908). But see Seminole Tribe, 116 S. Ct. at 1114 (indicating that Congress can displace an action under Young by statute).
237. See Edelman v. Jordan, 415 U.S. 651 (1974).
238. See Hafer v. Melo, 502 U.S. 21 (1991).
239. E.g., Stump v. Sparkman, 435 U.S. 349 (1978) (judges); Imbler v. Pachtman, 424 U.S. 409 (1976) (prosecutors); Tenney v. Brandhove, 341 U.S. 367 (1951) (legislators).
240. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
241. The stated rationale for the objective standard for qualified immunity is to free state executive officers from exposure to personal liability in all but egregious circumstances - in order to encourage good people to take government jobs and to perform their duties assiduously. Ryder v. United States, 115 S. Ct. 2031, 2037 (1995).
242. Hunter v. Bryant, 502 U.S. 224 (1991).
243. E.g., Pierson v. Ray, 386 U.S. 547 (1967) (involving city police officers).
244. See Owen v. City of Independence, 445 U.S. 622, 638 (1980) (holding that a city or county cannot assert the qualified immunity belonging to one of its agents); Lincoln County v. Luning, 133 U.S. 529 (1890) (holding that a city or county is not a "state" within the meaning of the Eleventh Amendment).
245. Monell v. Department of Soc. Serv., 436 U.S. 658 (1978).
246. Id. at 694.
247. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) (finding no municipal responsibility for the actions of a department head).
248. See Bandes, supra note 83, at 360 (pointing this out and arguing that the Court need not reject respondeat superior in Bivens actions).
249. Cf. supra notes 89-95 and accompanying text. There is a dictum on point in the Pennhurst case. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). There, the Court acknowledged that the United States is not bound by the Eleventh Amendment when it sues a state, but explained (unremarkably) that the mere presence of the government in a lawsuit does not "eliminate the State's immunity for all purposes" and does not mean, for example, that the federal court can "order the State to pay damages to other plaintiffs." Id. at 103 n. 12. The argument I want to advance, of course, is not that the United States can simply lend its name to a lawsuit in which private citizens are the principal plaintiffs and, without more, can enable those private litigants to elude the Eleventh Amendment. Rather, the United States can itself recover monetary relief for injuries to its own quasi-sovereign interests. What the government does with its newly won treasure is another matter - to which I will turn later. See infra notes 263-65 and accompanying text.
250. United States v. California, 297 U.S. 175 (1936) (involving a suit in a district court); United States v. Texas, 143 U.S. 621 (1892) (involving a suit within the Supreme Court's original jurisdiction).
251. United States v. Texas, 143 U.S. at 641.
252. Id. at 646. To the extent this argument is meant merely to restate the point that suits by the United States are implicit in the constitutional structure, it does no great harm - though, in my view, it also does little good. To the extent it is meant to state genuine history, it suffers a certain temporal embarrassment. After all, most of the states joined the Union after the Eleventh Amendment was in place.
253. E.g., Zentgraf v. Texas A & M Univ., 492 F. Supp. 265, 272 (S.D. Tex. 1980); United States v. South Carolina, 445 F. Supp. 1094, 1099 n.5 (D.S.C. 1977); Hodgson v. Board of Educ., 344 F. Supp. 79, 86 (D.N.J. 1972); cf. United States v. Mississippi, 380 U.S. 128, 140-41 (1965) (holding in the main that Congress had authorized the Attorney General to sue by statute but recognizing as well the line of cases holding that the Eleventh Amendment is inapplicable to suits by the United States).
254. Both United States v. Texas, 143 U.S. 621, and United States v. California, 332 U.S. at 19, were boundary dispute cases.
255. This counterargument with respect to the Eleventh Amendment is essentially a reprise of the claim that the United States lacks standing to advance Fourteenth Amendment claims belonging to individuals in an Article III court. See supra notes 99-156 and accompanying text. Suits by the United States presumably cannot simply be stand-ins for suits by private individuals that would otherwise be barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 n.12 (1984), discussed supra in note 208; accord Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 611 (1982) (Brennan, J., concurring); Hawaii v. Standard Oil Co., 405 U.S. 251, 258 n.12 (1972).
256. In United States v. Mississippi, 380 U.S. 128, 140-141 (1965), the Court held in the main that Congress had authorized the Attorney General to enforce federal voting rights legislation. In addition, however, the Court cited United States v. Texas and United States v. California for the general proposition that the Eleventh Amendment is inapplicable to suits by the United States against a state - "with or without specific authorization from Congress" and (evidently given the race discrimination context) with or without some connection to the government's pecuniary interests. In Employees v. Missouri Public Health Department, 411 U.S. 279 (1973), the Court initially concluded that the Eleventh Amendment barred a suit by individual employees against a state for violation of the Fair Labor Standards Act - primarily because the FLSA did not specify that a state might be named as an unconsenting defendant despite the Eleventh Amendment. In passing, however, the Court noted that, under the FLSA, the Secretary of Labor was authorized to sue offending employers both to enjoin future violations and to obtain restitution for employees already denied the wages to which they were entitled. Acknowledging that the FLSA said nothing about either the Secretary's ability to sue a state in federal court or the implications of the Eleventh Amendment with respect to such a suit, the Court explained that Congress would have had no reason to be explicit on those points since a suit by the United States against a state was not subject to the Eleventh Amendment in any event. Some elements of the Court's analysis in Employees have since been undermined. But there is nothing to suggest that the dictum regarding suits by the United States is one of them. The cases on the government's ability to sue as the guardian of Indian tribes are also in point. See United States v. Minnesota, 270 U.S. 181 (1926). In those cases, too, it was understood that the United States was not merely a nominal party, litigating solely for the benefit of private individuals, but also proceeded under its own obligation to safeguard the tribes' welfare. Id. at 193-94; accord Arizona v. California, 460 U.S. 605, 614 (1983) (holding that the Eleventh Amendment could not prevent the United States from pressing water rights claims against a state on behalf of an Indian tribe). While the government's special relationship with the tribes might provide a basis of distinction, here again the government's power to litigate in its own courts should have the benefit of the doubt.
257. Cf. Hodgson v. Board of Educ., 344 F. Supp. 79, 85 (D.N.J. 1972) (using the "public wrong" characterization in an Eleventh Amendment context but without explicit reference to the parens patriae form).
258. See Dunlop v. New Jersey, 522 F.2d 504, 516 (3d Cir. 1975) (finding it immaterial that the Secretary of Labor might give over the proceeds of a successful FLSA suit to the individuals the state had failed to pay at the proper rate); Hodgson, 344 F. Supp. at 82 (reaching the same conclusion on the ground that the Eleventh Amendment simply was not "involved" in a suit by the United States).
259. In Dunlop, the court recognized that this result seemed to be at odds with Edelman v. Jordan, 415 U.S. 651 (1974), but embraced it nonetheless as the product of the Byzantine jurisprudence that attends the Eleventh Amendment generally. Dunlop, 522 F.2d at 515-16.
260. In Dunlop, the court recognized that this result seemed to be at odds with Edelman v. Jordan, 415 U.S. 651 (1974), but embraced it nonetheless as the product of the Byzantine jurisprudence that attends the Eleventh Amendment generally. Dunlop, 522 F.2d at 515-16.
261. The unquestioned ability of individual litigants to escape the Eleventh Amendment by suing state officials rather than the state itself is, of course, the most obvious illustration. See Kenneth C. Davis, Suing the Government by Falsely Pretending to Sue an Officer, 29 U. CHI. L. REV. 435 (1962) (elaborating this familiar point);
262. cf. Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539 (1995) (arguing that Congress can authorize individuals to pursue litigation in the name of the United States and thus to elude the Eleventh Amendment even when they themselves appear as plaintiffs); see also United States v. Minnesota, 270 U.S. 181, 194-95 (1926) (recognizing that a suit by the United States as guardian effectively circumvents the Eleventh Amendment for the claims of Indian tribes). But see Blatchford v. Native Village of Noatak, 501 U.S. 775, 785 (1991) (expressing "doubt" that the United States can simply delegate its exemption to a tribe).
263. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
264. Id. at 455.
265. Cf. Bandes, supra note 83, at 351 (arguing that the federal courts should abrogate the Eleventh Amendment by reading the Fourteenth Amendment to override it).
266. It is true that the executive "take Care" power preexisted both the Eleventh and the Fourteenth Amendments and is in that superficial sense similar to the congressional power to regulate commerce. It does not follow, however, that because Congress cannot use its prior legislative authority over commerce to abrogate Eleventh Amendment immunity, the Executive's authority is equally defeated. In the case of congressional action, both the power to regulate (the Commerce Clause) and the subject of regulation (commerce) preexisted the Eleventh Amendment. In the case of executive action, that is not true. Obviously, it was not until the Fourteenth Amendment was promulgated that its new prohibitions existed and called for executive attention. The power the Executive asserts to enforce the Due Process and Equal Protection Clauses derives from 1868, not 1787.
267. See generally 18 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4402, at 10 (1981) [hereinafter WRIGHT].
268. Id. at 8-9.
269. E.g., Federated Dep't Stores v. Moitie, 452 U.S. 394 (1981) (reaffirming conventional federal preclusion doctrine).
270. E.g., Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82 (1982).
271. The authorities with respect to preclusion law, federal and state, are legion and needn't be rehearsed for my limited purposes here. For a discussion, see Stephen B. Burbank, Federal Judgments Law: Sources of Authority and Sources of Rules, 70 TEX. L. REV. 1551 (1992); Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733 (1986).
272. The authorities with respect to preclusion law, federal and state, are legion and needn't be rehearsed for my limited purposes here. For a discussion, see Stephen B. Burbank, Federal Judgments Law: Sources of Authority and Sources of Rules, 70 TEX. L. REV. 1551 (1992); Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733 (1986).
273. See Allen v. McCurry, 449 U.S. 90, 95 (1980); see also Kremer, 456 U.S. at 481 (stating that the measure of such an opportunity must at least track due process of law).
274. See Richards v. Jefferson County, 116 S. Ct. 1761 (1996) (holding as much with respect to proceedings in state court); Blonder-Tongue Lab. v. University of Ill. Found., 402 U.S. 313, 329 (1971) (stating the same point with respect to proceedings in federal court).
275. This is to say, the United States itself can assert no rights under the Due Process Clause. One could plausibly argue that the government's place in the constitutional structure entitles it to the same opportunity to appear and defend its own interests. That, however, has never been necessary - inasmuch as nonconstitutional preclusion law has always guaranteed the government a fair opportunity to participate on its own behalf.
276. E.g., Hathorn v. Lovorn, 457 U.S. 255 (1982) (holding that the Attorney General was not foreclosed by prior private litigation); City of Richmond v. United States, 422 U.S. 358, 373-74 n.6 (1975) (finding it "controlling" that neither the United States nor the Attorney General had participated in previous litigation); cf. Montana v. United States, 440 U.S. 147 (1979) (concluding on the basis of federal preclusion law that the United States was barred from relitigating an issue - but only because the government had exercised decisive control over a prior lawsuit formally instituted by a private party). Of course, other rudimentary features of federal preclusion law may also operate to the government's advantage. E.g., United States v. California, 332 U.S. 19, 24 n.2 (1947) (rejecting a preclusion argument because the land over which previous litigation had been waged was different from the land in dispute in the current action); cf. Alabama v. TVA, 467 F. Supp. 791 (N.D. Ala. 1979) (stating and applying the same general rule with respect to states suing in parens patriae).
277. See supra notes 209-23 and accompanying text.
278. See Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 694 (7th Cir. 1986) (confirming the government's "separate and distinct" interests); Donovan v. Cunningham, 716 F.2d 1455, 1462 (5th Cir. 1983) (explaining that the United States has an interest in enforcing federal law "that is independent of any claims of private citizens").
279. For essentially these same practical reasons, the United States is exempt from nonmutual collateral estoppel even when the government did participate in prior litigation on the same issues. In United States v Mendoza, 464 U.S. 154 (1984), the Supreme Court recognized that the United States is party to thousands of lawsuits every year, many of which implicate important public questions, and that giving preclusive effect to the first judgment that happens to be rendered on such a question would attach unjustified consequences to a decision that may be seen to be erroneous in light of later lawsuits. But see United States v. Stauffer Chem. Co., 464 U.S. 165 (1984) (holding the United States to collateral estoppel where the same private party who had been involved in the previous suit was again present in the subsequent action). See generally A. Leo Levin & Susan M. Leeson, Issue Preclusion Against the United States Government, 70 IOWA L. REV. 113 (1984).
280. E.g., Matsushita Elec. Indus. Co. v. Epstein, 116 S. Ct. 873 (1996) (reading § 1738 to require a federal court to consult state preclusion law in order to decide whether a settlement reached in state court foreclosed later proceedings on claims within exclusive federal jurisdiction).
281. E.g., Cullen v. Margiotta, 811 F.2d 698, 732 (2d Cir.), cert. denied, 483 U.S. 1021 (1987) (holding that New York preclusion law would not give preclusive effect to a state criminal action in a later civil RICO action by the United States in federal court); cf. Pennsylvania v. Brown, 260 F. Supp. 323, 342-43 (E.D. Pa. 1966) (invoking Pennsylvania preclusion law and concluding that the state attorney general would be precluded by prior litigation - but only because he had participated in the earlier proceedings in state court).
282. Montana v. United States, 440 U.S. 147 (1979).
283. See United States v. Dalles Military Rd. Co., 140 U.S. 599 (1891); Mt. Vernon Mortgage Corp. v. United States, 236 F.2d 724 (D.C. Cir. 1956).
284. See Thompson v. United States, 312 F.2d 516 (10th Cir.), cert. denied, 373 U.S. 912 (1962); United States v. Stewart, 121 F.2d 705, 713 (9th Cir. 1941), rev'd on other grounds, 316 U.S. 354 (1942).
285. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938) (holding that state substantive law typically applies in diversity actions).
286. E.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943); D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942); cf. O'Melveny & Myers v. FDIC, 114 S. Ct. 2048 (1994) (holding that when the FDIC stepped into the shoes of a failed private bank the liability of the lawyers who had represented the bank was governed by state law).
287. Cf. Daan Braveman & Richard Goldsmith, Rules of Preclusion and Challenges to Official Action An Essay on Finality, Fairness and Federalism. All Gone Awry, 39 SYRACUSE L. REV. 599, 618 (1988) (suggesting federal exceptions to the Full Faith and Credit Statute even when private litigants press federal substantive claims). See generally Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733 (1986).
288. Cf. Daan Braveman & Richard Goldsmith, Rules of Preclusion and Challenges to Official Action An Essay on Finality, Fairness and Federalism. All Gone Awry, 39 SYRACUSE L. REV. 599, 618 (1988) (suggesting federal exceptions to the Full Faith and Credit Statute even when private litigants press federal substantive claims). See generally Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733 (1986).
289. See Department of Employment v. United States, 385 U.S. 355 (1966).
290. See Leiter Minerals v. United States, 352 U.S. 220 (1957).
291. See id. at 225-26.
292. If § 1738, properly construed, does purport to force federal courts to invoke state preclusion law that, in turn, precludes suits by the United States in this context, I should think the statute is, to that extent, unconstitutional. Here again, while Congress surely can orchestrate the enforcement of federal legal standards in a variety of ways, the notion that the legislative branch can so cripple the Executive's efforts to enforce the Fourteenth Amendment is untenable. See supra text accompanying notes 78-88.
293. See 18 WRIGHT, supra note 224, § 4458, at 512-13 (summarizing the precedents to say that while government suits may often preclude private suits the government cannot generally be foreclosed by private litigation).
294. E.g., Antrim Mining, Inc. v. Davis, 775 F. Supp. 165 (M.D. Pa. 1991).
295. As might have been expected, most of the precedents have arisen in connection with environmental protection suits and various civil rights statutes, particularly Title VII's prohibition on discrimination in employment. E.g., Secretary of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986); Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 n.6 (5th Cir. 1979); United States v. Texas, 430 F. Supp. 920 (S.D. Tex. 1977). In some discrete instances, the courts are divided. Compare EEOC v. North Hills Passavant Hosp., 544 F.2d 664 (3d Cir. 1976) (reading Title VII to allow the EEOC to initiate its own enforcement lawsuit notwithstanding previous litigation at the instance of the private party concerned), with EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir. 1977) (reading the statute to limit the EEOC to intervening in the private suit). See generally Durfee v. Duke, 375 U.S. 106, 115-16 (1963). But see NLRB v. Donna-Lee Sportswear Co., 836 F.2d 31 (1st Cir. 1987) (recognizing an exception where the relationship between the government and the private litigant in the previous litigation was extraordinarily close).
296. The issue typically comes up in cases in which the Equal Employment Opportunity Commission seeks to advance race and age discrimination claims on behalf of individual employees. E.g., EEOC v. Chernin, 10 F.3d 1286, 1291 (7th Cir. 1993) (holding that the EEOC could not recover backpay on behalf of an individual who had previously pressed his own interests in a private action); EEOC v. United States Steel Corp., 921 F.2d 489, 493-94 (3d Cir. 1990) (finding the EEOC unable to seek compensatory relief on behalf of an employee who had previously litigated his own claim under the Age Discrimination in Employment Act); EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 456 (5th Cir. 1975) (stating that while the EEOC was not barred from pursuing allegations of widespread wrongdoing it would be barred from pressing the "particular" claim of a single person whose claim had previously been adjudicated in a private action). The better view, however, is that the EEOC can file "duplicative" suits, provided the particular statute in play does not forbid the practice. See EEOC v. Wackenhut Corp., 939 F.2d 241, 243 (5th Cir. 1991).
297. E.g., EEOC v. United States Steel Corp., 921 F.2d 489, 494 (3d Cir. 1990) (expressly relying on "[t]he distinctive enforcement scheme" established by the ADEA - which demonstrates "unmistakably that the EEOC has representative responsibilities when it initiates litigation to enforce an employee's rights"). But see Wackenhut Corp., 939 F.2d at 243 (concluding on the basis of legislative history that the ADEA does not preclude after-filed government suits).
298. E.g., Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987) (reading the Clean Air Act to authorize private suits as a supplement to government enforcement actions).
299. See supra notes 142-44 & 209-23 and accompanying text.
300. See Satsky v. Paramount Communications, 7 F.3d 1464, 1470 (10th Cir. 1993).
301. See supra notes 142-44 and accompanying text.
302. E.g., Pennsylvania v. Porter, 659 F.2d 306 (3d Cir. 1981) (Gibbons, J.).
303. Indeed, most parens patriae suits seek declaratory or injunctive relief from executive action in situations in which no immunity of any kind would attach.
304. See supra note 134 and accompanying text.
305. See supra notes 143-44 and accompanying text.
306. See Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 771 (9th Cir. 1994) (describing the consent decree the government obtained in the Valdez oil spill case - pursuant to which Exxon agreed to pay nearly a billion dollars to compensate for damage to the Alaskan coast); County of Boyd v. US Ecology, Inc., 858 F. Supp. 960, 973 (D. Neb. 1994) (noting that a state might have sought compensatory damages for injuries to the state's environment).
307. E.g., EEOC v. Dayton Tire and Rubber Co., 573 F. Supp. 782, 787 (S.D. Ohio 1983). See generally Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247 (1988) (elaborating the value of various forms of relief meant to deter future misconduct).
308. E.g., EEOC v. Dayton Tire and Rubber Co., 573 F. Supp. 782, 787 (S.D. Ohio 1983). See generally Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247 (1988) (elaborating the value of various forms of relief meant to deter future misconduct).
309. In EEOC v. United States Steel Corp., 728 F. Supp. 1167 (W.D. Pa. 1989), the court thought it only equitable that the EEOC should be able to obtain monetary relief for individual employees who had previously failed to win that same relief in their own actions against the employer. Indeed, in EEOC v. Dayton Tire & Rubber Co., 573 F. Supp. 782 (S.D. Ohio 1983), individual employees were allowed to recover twice, once in their own private suits and again in a suit filed by the EEOC - the better to deter future discrimination against those individuals or others. Of course, the thesis I am advancing scarcely demands double recovery, which is easily avoided ad hoc. See, e.g., General Tel. Co. v. EEOC, 446 U.S. 318, 33 (1980).
310. See, e.g., New York ex rel. Abrams v. Seneci, 817 F.2d 1015, 1017 (2d Cir. 1987).
311. I suppose one could argue that funds obtained in parens patriae litigation must be deposited in the treasury and can be withdrawn thereafter only on the strength of a formal appropriation. U.S. CONST. art. I, § 9, cl. 7. If that were true, then Congress would have to approve this remedial feature of the lawsuits I have in mind, though not the institution of suit in the first instance.
312. Individuals are often precluded from proceeding on their own behalf as a sequel to a parens patriae suit. E.g., City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958); see also Arizona v. California, 460 U.S. 605 (1983) (binding an Indian tribe to a judgment won on its behalf by the United States); Heckman v. United States, 224 U.S. 413, 445-46 (1912) (expressing the same proposition in dictum); EPA v. City of Green Forest, 921 F.2d 1394 (8th Cir. 1990) (invoking preclusion against private litigants even when they had filed their action before the government settled its own suit); United States v. Olin Corp., 606 F. Supp. 1301 (N.D. Ala. 1985) (invoking preclusion against individuals suing for personal damages where a previous suit by the state and the United States had been resolved on the basis of a consent decree).
313. In Satsky v. Paramount Communications, 7 F.3d 1464 (10th Cir. 1993), a prior suit by Colorado had resulted in a consent decree under which a polluting company agreed to eliminate environmental hazards and compensate the state for injuries to the state's natural resources. Thereafter, private individuals residing near the site sued to recover compensatory damages for injuries to their private property. In response to the company's preclusion argument, the court said that the private plaintiffs could press their "purely private" interests in a subsequent lawsuit, because those injuries could not have been addressed in the state's prior suit - for want of standing on the part of Colorado as parens patriae. Id. at 1470.
314. See, e.g., Jones v. Bell Helicopter Co., 614 F.2d 1389, 1391 (5th Cir. 1980) (complaining that the EEOC's "ineptitude" and "sloth" had shielded racial discrimination "in a bureaucratic milieu" - but nonetheless barring a private litigant's attempt to press his own claims after an EEOC enforcement action had been dismissed as untimely). Not all cases of this kind are egregious, however. In the Valdez case, sport fishermen were barred from seeking damages for the loss of access to waterways while beaches and water were being cleaned. That result seems sensible, particularly in that the fishermen specifically declined to argue that their boats and equipment had been harmed. See Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 772 n.2 (9th Cir. 1994).
315. In this vein, it would not be amiss to permit private individuals to press for compensatory damages notwithstanding previous parens patriae litigation that focused on winning equitable or declaratory relief only. Few of the policies that underlie preclusion law would be affected if that kind of suit were allowed, and any costs that ensued would be worth paying. Cf. EEOC v. United States Steel Corp., 921 F.2d 489, 496 (3d Cir. 1990) (barring an individual from advancing precisely the same "individualized grievances" the EEOC had previously pressed on his behalf - but expressly withholding judgment on the preclusive consequences in cases in which prior EEOC actions focused more broadly on class-based discrimination).
316. E.g., General Tel. Co. v. EEOC, 446 U.S. 318 (1980) (permitting individual employees to pursue their own remedies in the wake of an EEOC action seeking relief for an entire class of workers); Town of Lockhart v. Citizens for Community Action, 430 U.S. 259 (1977) (allowing private citizens to press voting rights claims that previously had been advanced unsuccessfully by their county government); Pennsylvania v. Brown, 260 F. Supp. 323, 340-42 (E.D. Pa. 1966) (applying state law where prior proceedings had been in state court - and concluding that the state attorney general had not represented private individuals in a way that barred those private parties from launching their own federal suit later). On the many instances in which preclusion has not frustrated subsequent private litigation, see 18 WRIGHT, supra note 224, § 4458, at 514-19.