Congress's Power to Authorize Suits Against States

George Washington Law Review

Volumn 68, Issue 1, 1999, Pages 44-109

  Siegel, Jonathan R ^a  

^a NONE

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EID: 0347808785     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (373)

1. 517 U.S. 44 (1996).
2. See id. at 60-73.
3. See Alden v. Maine, 119 S. Ct. 2240 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999).
4. The case concerned the division between the federal government and the states of authority to regulate gambling on Indian reservations, and the statutory scheme involved was so peculiar that each side was arguably better off losing the case than winning. See Tr. of Oral Argument at 4-5, 42, Seminole Tribe (No. 94-12).
5. See 35 U.S.C. § 296 (1994).
6. See Florida Prepaid, 119 S. Ct. at 2202.
7. See Richard A. Kaplan, IP Issues Grab Supreme Court's Attention, CHI. DAILY L. BULL., July 26, 1999, at 6; see also Florida Prepaid, 119 S. Ct. at 2215 (Stevens, J., dissenting) (noting that states have been involved in many patent cases since passage of the 1992 statute that rendered them subject to such suits).
8. See Kaplan, supra note 7, at 6; Jeff Gottlieb, UCI Case Raises Issue of Schools' Ties to Business, L.A. TIMES, Dec. 27, 1998, at A1.
9. See Kaplan, supra note 7, at 6; Jeff Gottlieb, UCI Case Raises Issue of Schools' Ties to Business, L.A. TIMES, Dec. 27, 1998, at A1.
10. As Justice Stevens observed in dissent in one of last Term's cases, the rise in business activity by states parallels the change in the activities of foreign states that led to the shift from the "absolute" theory of foreign sovereign immunity to the "restrictive" theory, under which foreign sovereigns are not immune from suits arising out of their commercial activities. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2234 (1999) (Stevens, J., dissenting); see also 28 U.S.C. § 1605(a)(2) (1994); Change of Policy on Sovereign Immunity of Foreign Governments, 26 DEP'T ST. BULL. 984 (1952) (the "Tate Letter") (explaining change from the absolute theory to the restrictive theory of foreign sovereign immunity).
11. See 35 U.S.C. § 296 (1994).
12. See 17 U.S.C. §§ 511, 911(g)(1) (1994).
13. See 15 U.S.C. §§ 1122, 1125(a) (1994).
14. See CERCLA, 42 U.S.C. § 9601(20)(D) (1994).
15. See 29 U.S.C. §§ 203(x), 216(b) (1994) (minimum wage laws); Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4323(d)(3) (1994).
16. See 11 U.S.C. §§ 101(27), 106 (1994).
17. President Bush signed the Patent and Plant Variety Protection Remedy Clarification Act, Pub. L. No. 102-560, 106 Stat. 4230 (1992), on October 28, 1992.
18. Almost all the important, recent cases concerning state sovereign immunity have been decided by 5-4 votes, a pattern that has persisted through several changes in Supreme Court personnel. See, e.g., Alden v. Maine, 119 S. Ct. 2240 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S. 96 (1989); Dellmuth v. Muth, 491 U.S. 223 (1989); Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989); Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987); Green v. Mansour, 474 U.S. 64 (1985); Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982); Edelman v. Jordan, 415 U.S. 651 (1974).
19. See Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539, 550-51 (1995).
20. See id. at 552-64.
21. See infra Part I.
22. See Siegel, supra note 18, at 568-69.
23. See Scott P. Glauberman, Citizen Suits Against States: The Exclusive Jurisdiction Dilemma, 45 J. COPYRIGHT SOC'Y U.S. 63, 101-06 (1997); Vicki C. Jackson, Seminole Tribe, The Eleventh Amendment, and the Potential Evisceration of Ex Parte Young, 72 N.Y.U. L. REV. 495, 505-06 & nn.45-46 (1997); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 55-57; Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102,125 n.162 (1936); Carlos Manuel Vásquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1706-07 & nn.110-11 (1997); Andrew S. Williamson, Note, Policing the States after Seminole, 85 GEO. L.J. 1739, 1760-61 (1997).
24. See Scott P. Glauberman, Citizen Suits Against States: The Exclusive Jurisdiction Dilemma, 45 J. COPYRIGHT SOC'Y U.S. 63, 101-06 (1997); Vicki C. Jackson, Seminole Tribe, The Eleventh Amendment, and the Potential Evisceration of Ex Parte Young, 72 N.Y.U. L. REV. 495, 505-06 & nn.45-46 (1997); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 55-57; Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102,125 n.162 (1936); Carlos Manuel Vásquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1706-07 & nn.110-11 (1997); Andrew S. Williamson, Note, Policing the States after Seminole, 85 GEO. L.J. 1739, 1760-61 (1997).
25. See Scott P. Glauberman, Citizen Suits Against States: The Exclusive Jurisdiction Dilemma, 45 J. COPYRIGHT SOC'Y U.S. 63, 101-06 (1997); Vicki C. Jackson, Seminole Tribe, The Eleventh Amendment, and the Potential Evisceration of Ex Parte Young, 72 N.Y.U. L. REV. 495, 505-06 & nn.45-46 (1997); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 55-57; Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102,125 n.162 (1936); Carlos Manuel Vásquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1706-07 & nn.110-11 (1997); Andrew S. Williamson, Note, Policing the States after Seminole, 85 GEO. L.J. 1739, 1760-61 (1997).
26. See Scott P. Glauberman, Citizen Suits Against States: The Exclusive Jurisdiction Dilemma, 45 J. COPYRIGHT SOC'Y U.S. 63, 101-06 (1997); Vicki C. Jackson, Seminole Tribe, The Eleventh Amendment, and the Potential Evisceration of Ex Parte Young, 72 N.Y.U. L. REV. 495, 505-06 & nn.45-46 (1997); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 55-57; Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102,125 n.162 (1936); Carlos Manuel Vásquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1706-07 & nn.110-11 (1997); Andrew S. Williamson, Note, Policing the States after Seminole, 85 GEO. L.J. 1739, 1760-61 (1997).
27. See Scott P. Glauberman, Citizen Suits Against States: The Exclusive Jurisdiction Dilemma, 45 J. COPYRIGHT SOC'Y U.S. 63, 101-06 (1997); Vicki C. Jackson, Seminole Tribe, The Eleventh Amendment, and the Potential Evisceration of Ex Parte Young, 72 N.Y.U. L. REV. 495, 505-06 & nn.45-46 (1997); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 55-57; Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102,125 n.162 (1936); Carlos Manuel Vásquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1706-07 & nn.110-11 (1997); Andrew S. Williamson, Note, Policing the States after Seminole, 85 GEO. L.J. 1739, 1760-61 (1997).
28. See Scott P. Glauberman, Citizen Suits Against States: The Exclusive Jurisdiction Dilemma, 45 J. COPYRIGHT SOC'Y U.S. 63, 101-06 (1997); Vicki C. Jackson, Seminole Tribe, The Eleventh Amendment, and the Potential Evisceration of Ex Parte Young, 72 N.Y.U. L. REV. 495, 505-06 & nn.45-46 (1997); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 55-57; Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102,125 n.162 (1936); Carlos Manuel Vásquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1706-07 & nn.110-11 (1997); Andrew S. Williamson, Note, Policing the States after Seminole, 85 GEO. L.J. 1739, 1760-61 (1997).
29. Compare United States ex rel. Long v. SCS Bus. & Technical Inst., Inc., 173 F.3d 870, 872, 881-90 (D.C. Cir.) (doubting whether the Eleventh Amendment permits qui tam actions against states, but ultimately holding that, as a matter of statutory interpretation, the False Claims Act does not authorize such actions), opinion supplemented, 173 F.3d 890 (D.C. Cir. 1999), and United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 281 (5th Cir. 1999) (holding that the Eleventh Amendment bars qui tam actions against states), with United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195, 202, 205 (2d Cir. 1998) (holding that qui tam actions against states are permitted), cert. granted, 119 S. Ct. 2391 (1999), and United States ex rel. Rodgers v. Arkansas, 154 F.3d 865, 868 (8th Cir. 1998) (same), and United States ex rel. Berge v. Board of Trustees of Univ. of Ala., 104 F.3d 1453, 1458 (4th Cir. 1997) (same), and United States ex rel. Fine v. Chevron, U.S.A., Inc., 39 F.3d 957, 963 (9th Cir. 1994) (same), vacated on other grounds, 72 F.3d 740 (9th Cir. 1995).
30. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 119 S. Ct. 2391 (1999).
31. See infra Part III.A.
32. See infra Part III.B.
33. See infra Part II.
34. See infra Part III.B.
35. See infra Part I.A, D.
36. See infra Part I.D.
37. See infra Part IV.
38. U.S. CONST. amend. XI.
39. See Monaco v. Mississippi, 292 U.S. 313, 330 (1934) (holding that immunity applies to suits brought by a foreign state against a state); Ex parte New York, 256 U.S. 490, 498 (1921) (holding that immunity applies to suits in admiralty against a state); Hans v. Louisiana, 134 U.S. 1, 14-15 (1890) (holding that immunity applies to suits against a state by its own citizen); Louisiana v. Jumel, 107 U.S. 711, 720 (1883) (holding that immunity applies to suits against a state under federal law).
40. See, e.g., Alden v. Maine, 119 S. Ct. 2240, 2266 (1999) ("The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design."); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554-56 (1985) (holding that Congress may compel states to pay their employees a minimum wage fixed by federal law).
41. See Garcia, 469 U.S. at 554-56.
42. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996) (noting that sovereign immunity bars private suits against states regardless of whether the plaintiff seeks damages or only prospective injunctive relief).
43. See Ex parte Young, 209 U.S. 123, 159-60 (1908); see also Virginia Coupon Cases, 114 U.S. 269, 293-94 (1885).
44. See Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 COLUM. L. REV. 1612, 1622-65 (1997) (examining the history of the officer suit fiction).
45. See Edelman v. Jordan, 415 U.S. 651, 678 (1974).
46. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).
47. See Clark v. Barnard, 108 U.S. 436, 447 (1883).
48. See Alden v. Maine, 119 S. Ct. 2240, 2267 (1999); United States v. Texas, 143 U.S. 621, 642-46 (1892).
49. See Lincoln County v. Luning, 133 U.S. 529, 530-31 (1890).
50. See, e.g., Employees of Dep't of Pub. Health & Welfare, Mo. v. Department of Pub. Health & Welfare, Mo., 411 U.S. 279, 283 (1973). Even this kind of suit did not reach the Supreme Court until 1964. See Parden v. Terminal Ry. of Ala. State Docks Dep't, 377 U.S. 184, 187 (1964) (noting that case was the first in which a state's claim of immunity was raised against a cause of action created by Congress).
51. 427 U.S. 445 (1976).
52. See id. at 456.
53. See Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 475, 478 (1987).
54. 491 U.S. 1 (1989).
55. See id. at 5, 15 (plurality opinion).
56. See id. at 42 (Scalia, J., dissenting).
57. A four-Justice plurality, who were joined in result by Justice White, laid down the rule. Justice White gave no explanation of his opinion; he stated only that he agreed with the plurality's conclusion although he disagreed with most of its reasoning. See id. at 45 (White, J., concurring in the judgment in part and dissenting in part). Subsequent retirements of four of the five Justices who joined the result left the case's holding vulnerable. See Siegel, supra note 18, at 548-50 (predicting the demise of Union Gas).
58. 517 U.S. 44 (1996).
59. See id. at 59, 65-66.
60. See id. at 66.
61. In one of last Term's decisions, the Supreme Court stated that Seminole Tribe "reaffirm[ed]" the view that Congress cannot abrogate state sovereign immunity when acting pursuant to its Article I powers. See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2205 (1999). This choice of words is particularly ironic; Seminole Tribe did no such thing. The Court never expressed that view prior to Seminole Tribe, so the case could not have reaffirmed it. In the one prior case squarely presenting the issue of Congress's ability to abrogate state sovereign immunity using its Article I powers, the Court held that Congress could do so. See Union Gas, 491 U.S. at 5, 15. It is also fair to say that all nine Justices expressed the view that Congress could abrogate state sovereign immunity under Article I in Parden v. Terminal Railway of Alabama State Docks Department, 377 U.S. 184, 190-92, 198 (1964), although they technically decided the case on the theory that the state had implicitly consented to suit.
62. The most obvious and grand contradiction is, of course, the officer suit fiction. Under this theory, states cannot be sued, even for prospective injunctive relief, but state officers can. See supra notes 36-40 and accompanying text. To mention just a couple of other contradictions: (1) Under the officer suit fiction, if a state violates a federal law, a federal court may not order the state or its officers to pay retrospective monetary damages for the past violation, but it may order state officers to obey the federal law in the future. If the officers subsequently violate the judicial order, however, the court then may make them pay monetary penalties. See Hutto v. Finney, 437 U.S. 678, 690-91 (1978). Logically, one would think that state sovereign immunity would bar the award of retrospective monetary damages for violation of a federal judicial order just as it bars the award of damages for violation of a federal statute. After all, the judicial order does no more than command the state officials to obey the federal law by which they already were bound. The judicial order is backed up by the same government as the statute it implements and presumably has only the same degree of compelling force as the statute. It should follow from sovereign immunity doctrine that the only relief a federal court can award for violation of a judicial order is a further order that the officers obey the original order in the future; the court should lack power to award monetary damages for the officers' past violation of the original order. Such a rule, however, would leave federal law effectively unenforceable against the states, and so sovereign immunity is conveniently ignored when it becomes necessary to find a remedy for the failure of state officials to obey a federal court's order. (2) State sovereign immunity is said to be a jurisdictional barrier to suits against states in federal court. For example, it is jurisdictional in the sense that it can be raised by a state on appeal even if the state did not raise it in the district court. See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974). A state, however, may waive its immunity and consent to suit in federal court. This contradicts the usual principle that jurisdictional barriers are non-waivable. See United States ex rel. Long v. SCS Bus. & Technical Inst., Inc., 173 F.3d 890, 892 (D.C. Cir. 1999) ("[T]he Eleventh Amendment is a rather peculiar kind of 'jurisdictional' issue.").
63. See, e.g., Meltzer, supra note 22; Williamson, supra note 22.
64. 119 S. Ct. 2240 (1999).
65. See id. at 2246.
66. See id.
67. See id.
68. See id.
69. U.S. CONST. amend. XI (emphasis added).
70. See Alden, 119 S. Ct. at 2255.
71. See generally Joanne C. Brant, The Ascent of Sovereign Immunity, 83 IOWA L. REV. 767 (1998) (assuming that federal actions could be brought against states in state courts after Seminole Tribe and arguing that the denial of a federal forum would make a big difference); Vásquez, supra note 22 (contrasting "immunity from liability" theory of Eleventh Amendment with "forum allocation" theory).
72. See, e.g., Testa v. Katt, 330 U.S. 386, 392-94 (1947). Indeed, the Supreme Court has stated that when Congress enacts a law, that law is as much the law of a state "as if the act had emanated from [the state's] own legislature." Id. at 392 (quoting Mondou v. New York N.H. & H.R.R. Co., 223 U.S. 1, 57 (1912)). If that statement were taken seriously, it would certainly mean that states have no immunity when a federal statute permits them to be sued. A state legislature may waive a state's sovereign immunity, so the federal statute, if it were treated as though it had emanated from the state's own legislature, would accomplish the same result. The Court's opinion in Alden did not contain a satisfactory explanation of what happened to this principle from Testa. The Court said that there was no evidence that Maine had "manipulated its immunity in a systematic fashion to discriminate against federal causes of action." Alden, 119 S. Ct. at 2268. The rule of Testa, however, does not usually apply only in the case of "systematic" discrimination (and what exactly does that mean, anyway?); it forbids a state court from refusing to hear a federal claim when it would hear a comparable state claim, unless the state has a "valid excuse," which typically requires a reason for dismissal (such as forum non conveniens) that applies to claims without regard to whether they are state or federal in character. See, e.g., Howlett v. Rose, 496 U.S. 356, 369 (1990). Here, the state applied its immunity to federal claims, but not state claims, so the "valid excuse" doctrine would not appear to be satisfied. Apparently, the true answer is simply that state sovereign immunity is exempt from Testa's non-discrimination requirement. A state may pick and choose which causes of action it will consent to be sued for without regard to their state or federal character; state sovereign immunity will always be a "valid excuse" for not hearing a claim. That rule is suggested by the Court's statement that "[t]o the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit." Alden, 119 S. Ct. at 2268.
73. See Alden v. State, 715 A.2d 172, 175 (Me. 1998), affd, 119 S. Ct. 2240 (1999).
74. See Alden, 119 S. Ct. at 2246.
75. See id.
76. See id. at 2254.
77. See id. at 2260-61.
78. id. at 2260.
79. id. at 2261.
80. See id. at 2264 ("In some ways, of course, a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum.").
81. See Clark v. Barnard, 108 U.S. 436, 447 (1883).
82. See id.
83. 119 S. Ct. 2219 (1999).
84. See id. at 2224.
85. See id.
86. See 15 U.S.C. § 1125(a)(1)(B) (1994).
87. See College Sav., 119 S. Ct. at 2223.
88. See id. at 2223-24.
89. See 15 U.S.C. §§ 1122, 1125(a)(2).
90. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 5 (1989) (holding that Congress has the power to permit a suit against a state in federal court "when legislating pursuant to the Commerce Clause").
91. 517 U.S. 44 (1996).
92. College Sav., 119 S. Ct. at 2224.
93. See id.
94. 377 U.S. 184 (1964).
95. See id. at 192.
96. See College Sav., 119 S. Ct. at 2224.
97. See id. at 2228.
98. See id.
99. See id.
100. Id. at 2231.
101. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59, 65-66 (1996).
102. See, e.g., American Life League v. Reno, 47 F.3d 642, 647 (4th Cir. 1995) (upholding the Freedom of Access to Clinic Entrances Act on the basis of the commerce power and declining to consider whether the act also could stand as a valid exercise of Congress's section 5 power).
103. See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999).
104. See Florida Prepaid, 119 S. Ct. at 2203-04.
105. See id. at 2203.
106. See supra text accompanying note 5.
107. See S. REP. No. 102-280, at 7-8 (1992); H.R. REP. No. 101-960, pt. 1, at 39-40 (1990).
108. U.S. CONST. art. I, § 8, cl. 8.
109. See id. cl. 3.
110. See id. cl. 18.
111. See U.S. CONST. amend. XIV, § 5.
112. See S. REP. No. 102-280, at 8; H.R. REP. No. 101-960, pt. 1, at 40.
113. 521 U.S. 507 (1997).
114. See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 St. Ct. 2199, 2206 (1999).
115. id. at 2207.
116. See id. at 2208.
117. See id.
118. See id. at 2207.
119. See id. at 2207-11.
120. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
121. Alden v. Maine, 119 S. Ct. 2240, 2246 (1999).
122. See id. at 2246-48.
123. See, e.g., Hans v. Louisiana, 134 U.S. 1, 15 (1890).
124. See, e.g., Ex parte New York, 256 U.S. 490, 497 (1921) ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification.").
125. See id.; see also Monaco v. Mississippi, 292 U.S. 313, 322 (1934) ("[W]e cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting states. Behind the words of the constitutional provisions are postulates which limit and control.").
126. Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 472 (1987) (emphasis added).
127. Id. at 473 (emphasis added); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996) (concluding, in a case not within the text of the Amendment, that "[t]he Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction").
128. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) (emphasis added); see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (stating that the Eleventh Amendment's withdrawal of jurisdiction "confers" an immunity from suit).
129. See Alden v. Maine, 119 S. Ct. 2240, 2254 (1999).
130. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). In that case, the Court said: "[T]he Eleventh Amendment [stands] for the constitutional principle that state sovereign immunity [limits] the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: 'The Judicial power of the United States shall not be construed to extend to any suit. . . .'" Id. at 64 (ellipsis in original). The Court's quotation from the Eleventh Amendment contains the part of the Amendment's text that is favorable to its point, but the ellipsis conveniently replaces that part of the text that shows that the Eleventh Amendment did not apply to the case before the Court, because the plaintiff tribe was neither a citizen of another state nor a citizen or a subject of any foreign state. Similarly, in Welch, the Court, italicizing the words "shall not be construed" and "any" in the text of the Amendment, stated that the "plain language of the Amendment" refutes the argument that state sovereign immunity does not apply to cases based on a federal question, even though the case at hand was neither a case "in law or equity" nor a case brought by a "citizen of another State," as the rest of the Amendment's language requires. Welch, 483 U.S. at 484-85; cf. Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1233 (1995) ("It seems axiomatic that, to be worthy of the label, any 'interpretation' of a constitutional term or provision must at least seriously address the entire text out of which a particular fragment has been selected for interpretation, and must at least take seriously the architecture of the institutions that the text defines.").
131. See, e.g., Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991) (referring to the state's "Eleventh Amendment immunity" in a suit by an Indian tribe, even though the tribe was not a citizen of another state or a citizen or subject of a foreign state); Dellmuth v. Muth, 491 U.S. 223, 225 (1989) (stating that "[t]he question before us is whether the Education of the Handicapped Act abrogates the States' Eleventh Amendment immunity from suit in the federal courts," even though the plaintiff was a citizen of the defendant state). Alden explained that the phrase "Eleventh Amendment immunity" "is convenient shorthand but something of a misnomer." Alden, 119 S. Ct. at 2246.
132. The Court's opinion in Alden does mention, very briefly, the Tenth Amendment. It does not appear, however, that the Court held that state sovereign immunity doctrine is an interpretation of that Amendment. Rather, in rejecting the view that state sovereign immunity is attached to the Eleventh Amendment, the Court also disclaimed the support of the others: it said that the immunity "derives not from the Eleventh Amendment but from the structure of the original Constitution itself." Alden, 119 S. Ct. at 2254 (emphasis added). Because state sovereign immunity plainly has no textual basis in the original Constitution, that leaves it as an extratextual doctrine. Numerous passages in the Court's opinion take this view of the immunity. Once past its very brief reference to the Tenth Amendment, the Court refers numerous times to state sovereign immunity as a fundamental but extratextual principle: the immunity, the Court held, is a "doctrine that . . . was universal in the States when the Constitution was drafted and ratified," id. at 2248; it is a principle that followed "in light of [the Constitution's] history and structure," id. at 2252; it is one of the "postulates which limit and control" the words of the Constitution, id. at 2254 (quoting Principality of Monoco v. Mississippi, 292 U.S. 313, 322-23 (1934)); and it is a "structural principle" of the Constitution, id. at 2255. Thus, the passing reference to the Tenth Amendment in the Court's opinion does not provide a textual basis for state sovereign immunity doctrine.
133. Cf. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1475 (1987) (noting that the Supreme Court's theory renders the Eleventh Amendment's text "inexplicable").
134. In Alden, the Supreme Court offered its defense to the textual problems: the Eleventh Amendment, the Court said, was designed "not to change but to restore the original constitutional design." Alden, 119 S. Ct. at 2251. The Eleventh Amendment does not spell out the full contours of state sovereign immunity because it did not create a new immunity; it simply returned things to their original, intended state. Indeed, "[g]iven the outraged reaction to Chisolm, as well as Congress' repeated refusal to otherwise qualify the text of the Amendment, it is doubtful that if Congress meant to write a new immunity into the Constitution it would hve limited that immunity to the narrow text of the Eleventh Amendment." Id. By this wonderful argument, the very narrowness of the Eleventh Amendment's text is itself a reason for interpreting state sovereign immunity broadly! The text's narrowness indicates that the Amendment was designed only to correct the specific error of Chisolm; the drafters must have assumed that once that error was corrected, everyone would return to the original understanding that the Constitution "preserve[d] the States' traditional immunity from private suits," for otherwise they would have written broader text. Id. at 2252. The difficulty with this argument is that, even assuming the existence of a widespread, original understanding that the Constitution preserved state sovereign immunity from all private suits, it is hard to see, after Chisolm demonstrated that the Supreme Court did not share that understanding, how drafters of a new constitutional text could have thought it sufficient to enact only a narrow slice of the understanding into the Constitution. It is one thing to say that the drafters of the original Constitution failed to include the principle of state sovereign immunity in the constitutional text because they could not even imagine that anyone would have the audacity to deny it. See id. at 2260 ("[T]he sovereign's right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution."). It is another thing to suggest that the drafters of the Eleventh Amendment, who had seen the Supreme Court rule against the immunity by a 4-1 vote, could not conceive that they needed to spell out in constitutional text the whole extent of the immunity they believed existed, rather than just a part of it.
135. See id. at 2246-47.
136. id. at 2247.
137. Id. at 2254.
138. See id. at 2247-48.
139. The Court relied particularly on statements by Hamilton, Madison, and Marshall that have been prominently featured in state sovereign immunity opinions ever since Hans v. Louisiana, 134 U.S. 1 (1890). See Alden, 119 S. Ct. at 2248-49; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 70 n.13 (1996) (relying on same quotations from Hamilton and Madison); Welch v. Texas Dep't of Highways and Pub. Transp., 483 U.S. 468, 480 n.10 (1987) (relying on all three quotations); Hans, 134 U.S. at 12-15 (relying on all three quotations).
140. Alden, 119 S. Ct. at 2261 (emphasis added).
141. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239 n.2 (1985) ("The Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself."); Edelman v. Jordan, 415 U.S. 651, 660 (1974) ( "'The right of the Federal Judiciary to summon a State as defendant and to adjudicate its rights and liabilities had been the subject of deep apprehension and of active debate at the time of the adoption of the Constitution; but the existence of any such right had been disclaimed by many of the most eminent advocates of the new Federal Government, and it was largely owing to their successful dissipation of the fear of the existence of such Federal power that the Constitution was finally adopted.'" (quoting 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 91 (rev. ed. 1937))); cf. Pennsylvania v. Union Gas Co., 491 U.S. 1, 35 (1989) (Scalia, J., dissenting) (suggesting that, but for the principle of state sovereign immunity, the Seventeenth Amendment, providing for direct election of Senators, might not have been adopted).
142. In Hans, confronted with the argument that the Eleventh Amendment's text did not bar suits against a state by one of the state's own citizens, the Court indignantly replied: Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face. Hans, 134 U.S. at 15.
143. See, e.g., supra note 66 (arguing that Alden failed to provide an adequate reason for departing from the rule of Testa v. Katt). 138 See Alden, 119 S. Ct. at 2271-87 (Souter, J., dissenting); Seminole Tribe, 517 U.S. at 101-68 (Souter, J., dissenting); Atascadero, 473 U.S. at 258-80 (Brennan, J., dissenting).
144. See Amar, supra note 127, at 1448-62 (explaining that in this country sovereignty resides, not in each state, but in the people of the United States as a whole).
145. See, e.g., Jacqueline D. Ewenstein, Seminole Tribe: Are States Free to Pirate Copyrights with Impunity?, 22 COLUM.-VLA J.L. & ARTS 91, 109-23 (1997) (arguing that abrogation of state immunity under copyright law is a proper exercise of Congress's section 5 powers); Meltzer, supra note 22, at 57-60 (arguing that state courts should be obliged to entertain suits against states under federal law).
146. See Siegel, supra note 18, at 569-70.
147. See, e.g., United States v. Mississippi, 380 U.S. 128, 140 (1965) ("[N]othing in [the Eleventh Amendment] or any other provision of the Constitution prevents or has ever been seriously supposed to prevent a State's being sued by the United States." (emphasis added)).
148. See infra Part II.
149. See infra Part III.A.
150. See infra Part III.B.
151. See infra Part IV.A.
152. See infra Part IV.B.
153. See supra text accompanying notes 130-136.
154. See infra Part IV.C.
155. See infra note 152.
156. See infra note 152.
157. See, e.g., United States v. Texas, 507 U.S. 529, 530, 539 (1993); West Virginia v. United States, 479 U.S. 305, 311 (1987); United States v. Mississippi, 380 U.S. 128, 140-41 (1965); United States v. California, 297 U.S. 175,187-88 (1936); United States v. Texas, 143 U.S. 621, 646 (1892).
158. See United States v. Texas, 143 U.S. at 641.
159. id. at 645.
160. See id. at 641.
161. See Siegel, supra note 18, at 552-69.
162. See United States v. Texas, 143 U.S. at 641 (boundary dispute).
163. See infra notes 159-163 and accompanying text.
164. See, e.g., Herman v. South Carolina Nat'l Bank, 140 F.3d 1413, 1425 (11th Cir. 1998) ("'[T]he United States has an interest in enforcing federal law that is independent of any claims of private citizens.'" (quoting United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 (5th Cir. 1979))).
165. See 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.11 (2d ed. 1984 & Supp. 1999) ("Standing to pursue the general interests of the public is easily recognized when federal officials responsible for enforcing specific statutory schemes bring suit under the aegis of the statute.").
166. See id. ("[N]o harm has been done by the habit of framing the issue as one of standing. It must be clear, however, that this standing issue is not to be answered by invoking the formulas propounded in private standing cases."). Private parties, of course, may not bring a federal law- suit unless they have standing, which requires them to demonstrate that they have suffered an injury in fact, fairly traceable to the defendant's allegedly unlawful conduct, and likely to be redressed by a favorable judicial decision. See Allen v. Wright, 468 U.S. 737, 751 (1984).
167. See 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999). The point is so clear that an actual court holding on the matter is rare. For a case in which the point was expressly decided, see United States v. Raines, 362 U.S. 17, 27 (1960) (holding that Congress may, by statute, authorize the United States to sue to protect private constitutional rights). Cases in which the United States, without challenge, brings suit to enforce federal law even though the federal government has obviously suffered no "injury" in Article III standing terms are legion. For a case of this kind against a state defendant, see United States v. California, 297 U.S. 175, 180 (1936) (reviewing the federal government's suit against a state to collect a civil penalty for violation of the Safety Appliance Act). Much attention has been given to the more difficult question of whether the government may bring an action in the absence of specific statutory authorization. Even without such authorization, the government is sometimes held to have an inherent right to bring suit to enforce federal law, even though it has no direct monetary or proprietary interest at stake. See generally FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 811- 20 (4th ed. 1996); 13A WRIGHT ET AL., supra note 160, § 3531.11 (2d ed. 1984). On the other hand, the government's right to sue in such cases is sometimes said to depend "upon the same general principles which would authorize a private citizen to apply to a court of justice for relief." United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888). Under this view, the government needs no specific statutory authorization to sue to protect its own contractual and property rights, but it cannot sue without statutory authorization "if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought." Id. at 286. For purposes of this Article, it is not necessary to resolve this debate, because we are concerned only with cases in which the government sues pursuant to statutory authorization. It therefore suffices to note that even those exploring the limits of the government's power to bring actions when not authorized by statute agree that the government's showing of its right to sue could be "easily made with specific statutory authority." United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir. 1979); see also 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999); Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show that Standing Doctrine is Looking for Answers in All the Wrong Places, 97 MICH. L. REV. 2239 (1999).
168. See 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999). The point is so clear that an actual court holding on the matter is rare. For a case in which the point was expressly decided, see United States v. Raines, 362 U.S. 17, 27 (1960) (holding that Congress may, by statute, authorize the United States to sue to protect private constitutional rights). Cases in which the United States, without challenge, brings suit to enforce federal law even though the federal government has obviously suffered no "injury" in Article III standing terms are legion. For a case of this kind against a state defendant, see United States v. California, 297 U.S. 175, 180 (1936) (reviewing the federal government's suit against a state to collect a civil penalty for violation of the Safety Appliance Act). Much attention has been given to the more difficult question of whether the government may bring an action in the absence of specific statutory authorization. Even without such authorization, the government is sometimes held to have an inherent right to bring suit to enforce federal law, even though it has no direct monetary or proprietary interest at stake. See generally FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 811-20 (4th ed. 1996); 13A WRIGHT ET AL., supra note 160, § 3531.11 (2d ed. 1984). On the other hand, the government's right to sue in such cases is sometimes said to depend "upon the same general principles which would authorize a private citizen to apply to a court of justice for relief." United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888). Under this view, the government needs no specific statutory authorization to sue to protect its own contractual and property rights, but it cannot sue without statutory authorization "if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought." Id. at 286. For purposes of this Article, it is not necessary to resolve this debate, because we are concerned only with cases in which the government sues pursuant to statutory authorization. It therefore suffices to note that even those exploring the limits of the government's power to bring actions when not authorized by statute agree that the government's showing of its right to sue could be "easily made with specific statutory authority." United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir. 1979); see also 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999); Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show that Standing Doctrine is Looking for Answers in All the Wrong Places, 97 MICH. L. REV. 2239 (1999).
169. See 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999). The point is so clear that an actual court holding on the matter is rare. For a case in which the point was expressly decided, see United States v. Raines, 362 U.S. 17, 27 (1960) (holding that Congress may, by statute, authorize the United States to sue to protect private constitutional rights). Cases in which the United States, without challenge, brings suit to enforce federal law even though the federal government has obviously suffered no "injury" in Article III standing terms are legion. For a case of this kind against a state defendant, see United States v. California, 297 U.S. 175, 180 (1936) (reviewing the federal government's suit against a state to collect a civil penalty for violation of the Safety Appliance Act). Much attention has been given to the more difficult question of whether the government may bring an action in the absence of specific statutory authorization. Even without such authorization, the government is sometimes held to have an inherent right to bring suit to enforce federal law, even though it has no direct monetary or proprietary interest at stake. See generally FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 811- 20 (4th ed. 1996); 13A WRIGHT ET AL., supra note 160, § 3531.11 (2d ed. 1984). On the other hand, the government's right to sue in such cases is sometimes said to depend "upon the same general principles which would authorize a private citizen to apply to a court of justice for relief." United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888). Under this view, the government needs no specific statutory authorization to sue to protect its own contractual and property rights, but it cannot sue without statutory authorization "if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought." Id. at 286. For purposes of this Article, it is not necessary to resolve this debate, because we are concerned only with cases in which the government sues pursuant to statutory authorization. It therefore suffices to note that even those exploring the limits of the government's power to bring actions when not authorized by statute agree that the government's showing of its right to sue could be "easily made with specific statutory authority." United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir. 1979); see also 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999); Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show that Standing Doctrine is Looking for Answers in All the Wrong Places, 97 MICH. L. REV. 2239 (1999).
170. See 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999). The point is so clear that an actual court holding on the matter is rare. For a case in which the point was expressly decided, see United States v. Raines, 362 U.S. 17, 27 (1960) (holding that Congress may, by statute, authorize the United States to sue to protect private constitutional rights). Cases in which the United States, without challenge, brings suit to enforce federal law even though the federal government has obviously suffered no "injury" in Article III standing terms are legion. For a case of this kind against a state defendant, see United States v. California, 297 U.S. 175, 180 (1936) (reviewing the federal government's suit against a state to collect a civil penalty for violation of the Safety Appliance Act). Much attention has been given to the more difficult question of whether the government may bring an action in the absence of specific statutory authorization. Even without such authorization, the government is sometimes held to have an inherent right to bring suit to enforce federal law, even though it has no direct monetary or proprietary interest at stake. See generally FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 811- 20 (4th ed. 1996); 13A WRIGHT ET AL., supra note 160, § 3531.11 (2d ed. 1984). On the other hand, the government's right to sue in such cases is sometimes said to depend "upon the same general principles which would authorize a private citizen to apply to a court of justice for relief." United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888). Under this view, the government needs no specific statutory authorization to sue to protect its own contractual and property rights, but it cannot sue without statutory authorization "if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought." Id. at 286. For purposes of this Article, it is not necessary to resolve this debate, because we are concerned only with cases in which the government sues pursuant to statutory authorization. It therefore suffices to note that even those exploring the limits of the government's power to bring actions when not authorized by statute agree that the government's showing of its right to sue could be "easily made with specific statutory authority." United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir. 1979); see also 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999); Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show that Standing Doctrine is Looking for Answers in All the Wrong Places, 97 MICH. L. REV. 2239 (1999).
171. See 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999). The point is so clear that an actual court holding on the matter is rare. For a case in which the point was expressly decided, see United States v. Raines, 362 U.S. 17, 27 (1960) (holding that Congress may, by statute, authorize the United States to sue to protect private constitutional rights). Cases in which the United States, without challenge, brings suit to enforce federal law even though the federal government has obviously suffered no "injury" in Article III standing terms are legion. For a case of this kind against a state defendant, see United States v. California, 297 U.S. 175, 180 (1936) (reviewing the federal government's suit against a state to collect a civil penalty for violation of the Safety Appliance Act). Much attention has been given to the more difficult question of whether the government may bring an action in the absence of specific statutory authorization. Even without such authorization, the government is sometimes held to have an inherent right to bring suit to enforce federal law, even though it has no direct monetary or proprietary interest at stake. See generally FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 811- 20 (4th ed. 1996); 13A WRIGHT ET AL., supra note 160, § 3531.11 (2d ed. 1984). On the other hand, the government's right to sue in such cases is sometimes said to depend "upon the same general principles which would authorize a private citizen to apply to a court of justice for relief." United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888). Under this view, the government needs no specific statutory authorization to sue to protect its own contractual and property rights, but it cannot sue without statutory authorization "if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought." Id. at 286. For purposes of this Article, it is not necessary to resolve this debate, because we are concerned only with cases in which the government sues pursuant to statutory authorization. It therefore suffices to note that even those exploring the limits of the government's power to bring actions when not authorized by statute agree that the government's showing of its right to sue could be "easily made with specific statutory authority." United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir. 1979); see also 13A WRIGHT ET AL., supra note 160, § 3531.11 (Supp. 1999); Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show that Standing Doctrine is Looking for Answers in All the Wrong Places, 97 MICH. L. REV. 2239 (1999).
172. See, e.g., United States v. Eisen, 974 F.2d 246, 253 (2d Cir. 1992) (stating that in a prosecution for fraud, United States need not show that the victim was injured); United States v. Hughes, 585 F.2d 284, 286 n.1 (7th Cir. 1978) (noting that the United States may bring civil action under the False Claims Act even if it has suffered no measurable damages from defendant's false claim) (citing Fleming v. United States, 366 F.2d 475, 480 (10th Cir. 1964)).
173. See United States v. Texas, 143 U.S. 621, 641-45 (1892).
174. See Siegel, supra note 18, at 567.
175. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.14 (1996) (citing the power of the federal government to sue states as refuting the claim that Congress's inability to abrogate state sovereign immunity thwarts the purposes of the federal Constitution).
176. For example, as is discussed in detail in the next two paragraphs, the Fair Labor Standards Act authorizes the Secretary of Labor to sue employers to recover unpaid minimum wages for employees. See Fair Labor Standards Act, 29 U.S.C. § 216 (1994); see also 13A WRIGHT ET AL., supra note 160, § 3531.11, at 7 n.5 (noting that the Fair Labor Standards Act is a "frequently used example"); FALLON ET AL., supra note 162, at 817 & n.5 (noting various statutes authorizing the federal government to sue to enforce private rights).
177. See 29 U.S.C. § 216.
178. See Employees of Dep't of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279 (1973).
179. See id. at 285-86.
180. See Marshall v. A&M Consol. Indep. Sch. Dist., 605 F.2d 186, 188-89 (5th Cir. 1979); Dunlop v. New Jersey, 522 F.2d 504, 513-17 (3d Cir. 1975), vacated on other grounds sub nom. New Jersey v. Usery, 427 U.S. 909 (1976); Dunlop v. Rhode Island, 398 F. Supp. 1269, 1270-72 (D.R.I. 1975).
181. Alden v. Maine, 119 S. Ct. 2240, 2269 (1999) (emphasis added).
182. See, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984).
183. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-75 (1992).
184. See id. at 577.
185. "'[A]n identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.'" United States v. SCRAP, 412 U.S. 669, 689 n.14 (1973) (quoting Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601, 613 (1968)). Standing to bring a federal lawsuit has been upheld even where the plaintiff had "no more at stake in the outcome of an action than a fraction of a vote, a $5 fine and costs, [or] a $1.50 poll tax." Id. (citations omitted).
186. See SCRAP, 412 U.S. at 689 n. 14; see also Sierra Club v. Morton, 405 U.S. 727, 740 (1972); Evers v. Dwyer, 358 U.S. 202, 204 (1958).
187. See SCRAP, 412 U.S. at 689 n.14; Sierra Club, 405 U.S. at 740 n.15 ("The test of injury in fact goes only to the question of standing to obtain judicial review. Once this standing is established, the party may assert the interests of the general public in support of his claims for equitable relief."); see also Warth v. Seldin, 422 U.S. 490, 501 (1975) (noting that, with congressional authorization, a party that has Article III standing may seek relief based on the rights of others or the public interest); Evers, 358 U.S. at 203-04 (approving a suit challenging segregation on buses in Memphis even though plaintiff had boarded a Memphis bus only once, for the purpose of instituting litigation). This is not to say that plaintiffs always are permitted to assert the rights of others as a basis for their lawsuit. See, e.g., Tileston v. Ullman, 318 U.S. 44, 46 (1943) (holding that a doctor could not assert the rights of his patients). The point is that, if a plaintiff, by bringing suit to vindicate her own interests, can thereby also serve the interests of others, the suit is not to be dismissed on the ground that serving the interest of others is the plaintiff's true motivation.
188. See supra notes 168-172 and accompanying text. Another statute using this scheme is the Uniformed Services Employment and Reemployment Rights Act, which (among other things) protects the rights of veterans to return to their prior
189. Of course, Congress cannot provide for suit against a state, even suit by the United States, when it lacks power to control the underlying state behavior. If, for example, the Supreme Court were to overrule Garcia and hold that Congress lacks power to require states to pay the minimum wage, then, of course, there could be no suits against states to enforce the obligation to pay it.
190. See Siegel, supra note 18, at 558-59.
191. See id. at 557.
192. See, e.g., Marvin v. Trout, 199 U.S. 212, 225 (1905) (noting that the qui tam device has been used "for hundreds of years in England, and in this country ever since the foundation of our Government"); Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 342 n.3 (1989) (citing examples of qui tam statutes passed by the First Congress); Note, The History and Development of Qui Tam, 1972 WASH. U. L.Q. 81, 83-101 (examining the centuries- long development of qui tam actions in England and their adoption and development in the United States).
193. See, e.g., Marvin v. Trout, 199 U.S. 212, 225 (1905) (noting that the qui tam device has been used "for hundreds of years in England, and in this country ever since the foundation of our Government"); Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 342 n.3 (1989) (citing examples of qui tam statutes passed by the First Congress); Note, The History and Development of Qui Tam, 1972 WASH. U. L.Q. 81, 83-101 (examining the centuries-long development of qui tam actions in England and their adoption and development in the United States).
194. See, e.g., 31 U.S.C. §§ 3729-3730 (False Claims Act).
195. See Siegel, supra note 18, at 557 n.106, 559 (citing examples).
196. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 119 S. Ct. 2391 (1999).
197. See 31 U.S.C. § 3729.
198. See id. § 3730(a).
199. See id. § 3730(b).
200. See id. § 3730(d).
201. See, e.g., United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 282 (5th Cir. 1999) (noting that the relator's complaint alleged that a state defendant submitted almost 500,000 false claims to Medicare and Medicaid programs). The thought of $5,000 times 500,000 is rather tempting, is it not? Even if your fee were only one-third of the relator's 30% take, it would be hard to keep track of the zeros. Multiplying it out shows that 33% of 30% of $5,000 times 500,000 is just a little shy of $250 million. There are days when one wonders why one is a law professor.
202. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 119 S. Ct. 2391 (1999).
203. See United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195, 198 (2d Cir. 1998), cert. granted, 119 S. Ct. 2391 (1999).
204. See id.
205. See id. at 199, 208.
206. See 119 S. Ct. 2391 (1999).
207. See Stevens, 162 F.3d at 202; United States ex rel. Rodgers v. Arkansas, 154 F.3d 865, 868 (8th Cir. 1998); United States ex rel. Berge v. Board of Trustees, 104 F.3d 1453, 1457 (4th Cir. 1997); United States ex rel. Fine v. Chevron, U.S.A., Inc., 39 F.3d 957, 962-63 (9th Cir. 1994).
208. See Stevens, 162 F.3d at 202-03; Rodgers, 154 F.3d at 868.
209. See Stevens, 162 F.3d at 202-03; Rodgers, 154 F.3d at 868.
210. See Stevens, 162 F.3d at 202-03; Rodgers, 154 F.3d at 868.
211. See supra text accompanying notes 157-163.
212. See supra text accompanying notes 169-172.
213. See 31 U.S.C. § 3730(b), (c) (1994).
214. See Stevens, 162 F.3d at 202-03; Rodgers, 154 F.3d at 868.
215. See United States ex rel Foulds v. Texas Tech Univ., 171 F.3d 279, 294 (5th Cir. 1999).
216. See Caminker, supra note 183, at 382-83. Sometimes the government's power is exercised by a group of human beings, as when the Congress enacts a statute or a multi-member court or agency issues a ruling. Even in such cases, particular human beings actually take the action that is the action of the United States.
217. 28 U.S.C. § 516 (1994).
218. See, e.g., 29 U.S.C. § 154(a) (1994) (granting such authority to National Labor Relations Board); 2 U.S.C. § 437c(f)(4) (1994) (granting such authority to the Federal Election Commission).
219. See 29 U.S.C. § 154(a); 2 U.S.C. § 437c(f)(4). The most notable example is, of course, the Independent Counsel. See Morrison v. Olson, 487 U.S. 654, 659-60 (1988) (approving Independent Counsel statute).
220. See, e.g., Mail Order Ass'n of Am. v. United States Postal Serv., 986 F.2d 509, 510, 512, 515 (D.C. Cir. 1993) (determining, after examination of statutes, that attorneys at the Postal Service may initiate rate litigation over the objection of the Attorney General).
221. See Buckley v. Valeo, 424 U.S. 1, 126 (1976).
222. See id. at 125-26.
223. See Morrison, 487 U.S. at 724 n.4 (Scalia, J., dissenting).
224. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
225. See, e.g., Myers v. United States, 272 U.S. 52 (1926).
226. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
227. See Caminker, supra note 183, at 342-43.
228. See United States v. Griswold, 26 F. Cas. 42, 43-44 (D. Or. 1877) (No. 15,266).
229. Id. at 44 (emphasis added). In a later decision in the same matter, the court remarked: A question was made in the course of the argument as to who is the attorney of the United States in this case. . . . The statute authorizing [the informer] to bring it gave him the sole control of it, except that he could not dismiss it without the consent of the judge and the district attorney. In effect, this made him the representative of the United States, so far as that litigation is concerned. Bush v. United States, 13 F. 625, 629 (D. Or. 1882) (emphasis added).
230. See Yocum v. Daniel, 24 Ky. (1 J.J. Marsh.) 14 (1829) ("Qui tam is the proper and only action in such a case. But . . . [t]he commonwealth should be a party."); Houghton v. Havens, 6 Conn. 305, 307 (1826) ("[I]t could not, and ought not, . . . be in the power of one individual, by the strength of his own arm, to call another immediately to appear and answer, without calling in aid the power and dignity of the state."); Dickinson v. Potter, 4 Day 340, 342 (Conn. 1810) ("The statute . . . clothes the individual injured . . . with power to inform and prosecute on this statute . . . . This he cannot do, but by joining the state in the prosecution; and when so joined, the action is criminal . . . ."); see also Note, supra note 183, at 94-95.
231. See United States ex rel. Marcus v. Lord Elec. Co., 43 F. Supp. 12, 13-14 (W.D. Pa. 1942).
232. See Griswold, 26 F. Cas. at 45.
233. See Commonwealth v. Churchill, 5 Mass. (1 Tyng) 174, 179-80 (1809); 3 WILLIAM BLACKSTONE, COMMENTARIES 160 (Robert Bell ed., The Layston Press, litho, reprint 1967) (1772) ("[T]he verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself."); Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 276, 300-01 (1989). Krent suggests that there was some doubt on this point but concludes that the relator's action "apparently" barred subsequent government actions. See Krent, supra, at 300-01; see also Note, The Federal False Claims Act: The Informer as Plaintiff, 69 HARV. L. REV. 1106, 1114 (1956).
234. See Commonwealth v. Churchill, 5 Mass. (1 Tyng) 174, 179-80 (1809); 3 WILLIAM BLACKSTONE, COMMENTARIES 160 (Robert Bell ed., The Layston Press, litho, reprint 1967) (1772) ("[T]he verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself."); Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 276, 300-01 (1989). Krent suggests that there was some doubt on this point but concludes that the relator's action "apparently" barred subsequent government actions. See Krent, supra, at 300-01; see also Note, The Federal False Claims Act: The Informer as Plaintiff, 69 HARV. L. REV. 1106, 1114 (1956).
235. See Commonwealth v. Churchill, 5 Mass. (1 Tyng) 174, 179-80 (1809); 3 WILLIAM BLACKSTONE, COMMENTARIES 160 (Robert Bell ed., The Layston Press, litho, reprint 1967) (1772) ("[T]he verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself."); Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 276, 300-01 (1989). Krent suggests that there was some doubt on this point but concludes that the relator's action "apparently" barred subsequent government actions. See Krent, supra, at 300-01; see also Note, The Federal False Claims Act: The Informer as Plaintiff, 69 HARV. L. REV. 1106, 1114 (1956).
236. See Krent, supra note 223, at 296.
237. See Griswold, 26 F. Cas. at 44; Krent, supra note 223, at 302.
238. See Krent, supra note 223, at 290-303.
239. See, e.g., Morrison v. Olson, 487 U.S. 654 (1988) (holding that Congress may vest prosecutorial authority in the Independent Counsel); Bowsher v. Synar, 478 U.S. 714 (1986) (holding that Congress may not vest recission authority in the Comptroller General).
240. It is interesting that Justice Scalia, who is the Court's firmest believer in the theory that Congress may not vest executive power in officers who do not answer to the President, see Morrison, 487 U.S. at 724 n.4 (Scalia, J., dissenting), is also the Justice who most strongly believes that history can fix the meaning of constitutional requirements. See, e.g., Burson v. Freeman, 504 U.S. 191, 214-16 (Scalia, J., concurring) (stating that restrictions on speech within 100 feet of a polling place on election day are constitutional because such restrictions "are as venerable a part of the American tradition as the secret ballot").
241. See Blatchford v. Native Village of Noatak, 501 U.S. 775, 785-86 (1991) (suggesting, though not holding, that Congress may not delegate the government's power to sue unconsenting states).
242. See Note, supra note 223, at 1113 ("Whether the informer is to be identified with the Government for a particular purpose should depend on considerations peculiar to that purpose.").
243. See Note, supra note 183, at 83-101 (examining the long history of qui tam actions in England before the founding of the United States).
244. See supra notes 51-58 and accompanying text.
245. See supra notes 51-58 and accompanying text.
246. See, e.g., Glauberman, supra note 22, at 103 ("Siegel's article amounts to little more than an end run around the Eleventh Amendment."); Monaghan, supra note 22, at 125 n.162 (suggesting that qui tam actions against states would be a "transparent . . . evisceration" of the Supreme Court's holding in Seminole Tribe). 235 See supra Part II.
247. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996) ("'It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought.' " (quoting Cory v. White, 457 U.S. 85, 90 (1982))).
248. See id. at 71 n.14.
249. See Alden v Maine, 119 S. Ct. 2240, 2247, 2263 (1999).
250. See id. at 2264 ("Private suits against nonconsenting States . . . present 'the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.'" (quoting In re Ayers, 123 U.S. 443, 505 (1887))).
251. See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269 (1997) ("Young rests on a fictional distinction between the official and the State"); Stafford v. Briggs, 444 U.S. 527, 539 (1980) ("[T]he action is based upon the fiction that the officer is acting as an individual . . . ." (quoting H.R. REP. No. 86-1936, at 3-4 (1960))).
252. See supra notes 150-152 and accompanying text.
253. U.S. CONST. amend XI.
254. United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 289 (5th Cir. 1999).
255. id. at 294.
256. That is not to say that the Fifth Circuit is not in good company; as noted earlier, see supra note 124 and accompanying text, the Supreme Court has also used the technique of relying on part of the Eleventh Amendment's text while ignoring the rest. The technique is disingenuous all the same. See supra note 124 and accompanying text.
257. See U.S. CONST. amend XI. The Amendment also, of course, bars suits against states commenced or prosecuted by citizens or subjects of a foreign state. See id. 247 See supra note 117 and accompanying text.
258. See Alden v. Maine, 119 S. Ct. 2240, 2246 (1999).
259. Id. at 2254.
260. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2232 (1999).
261. Id. at 2232 (emphasis added).
262. Alden, 119 S. Ct. at 2267.
263. Id. at 2269.
264. See supra Part III.A.1.
265. See supra Part III.A.1.
266. See United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195, 217-19 (2d Cir. 1998) (Weinstein, J., dissenting), cert. granted, 119 S. Ct. 2391 (1999).
267. See id.
268. See Alden, 119 S. Ct. 2219, 2267.
269. See 31 U.S.C. § 3729 (1994).
270. See Stevens, 162 F.3d at 203-08; United States ex rel. Berge v. Board of Trustees, 104 F.3d 1453, 1458 (4th Cir. 1997).
271. See United States ex rel. Long v. SCS Bus. & Technical Inst., Inc., 173 F.3d 870, 889-90 (D.C. Cir. 1999).
272. See id.
273. See, e.g., Dellmuth v. Muth, 491 U.S. 223, 232 (1989).
274. See Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 475, 478 (1987).
275. See, e.g., Berge, 104 F.3d at 1458; cf. Stevens, 162 F.3d at 203-04 (rejecting application of similar "plain statement" rule).
276. See Long, 173 F.3d at 886-87.
277. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
278. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
279. Will, 491 U.S. at 64 (quoting Wilson v. Omaha Tribe, 442 U.S. 653, 667 (1979)).
280. See, e.g., Cohen v. de la Cruz, 118 S. Ct. 1212, 1217 (1998); Ratzlaf v. United States, 510 U.S. 135, 143 (1994). But see Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) ("It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance.").
281. See Houston v. Lack, 487 U.S. 266, 278 (1988) (Scalia, J., dissenting) ("[I]t is the practice in construing [a statutory] phrase to pick a single meaning, and not to impart first one, and then another, as the judicially perceived equities of individual cases might require.").
282. 491 U.S. at 58.
283. See id. at 70-71.
284. See id. at 71 & n.10.
285. The Fifth Circuit in United States ex rel. Foulds v. Texas Tech University, 171 F.3d 279 (5th Cir. 1999), held that a federal court may not decide whether the False Claims Act creates a cause of action against states without first considering whether sovereign immunity would bar such an action even if Congress unequivocally attempted to create one, because the latter issue is jurisdictional and the former is not. See id. at 285-88; see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (holding that federal courts may not issue rulings based on "hypothetical jurisdiction," even if the result would be the same as the result that would follow from a denial of jurisdiction). It is important, however, to remember that state sovereign immunity is not exactly jurisdictional; rather, it "partakes of the nature of a jurisdictional bar" for some purposes. Edelman v. Jordan, 415 U.S. 651, 678 (1974); see supra note 56 (explaining that state sovereign immunity may, on the one hand, be raised for the first time on appeal, but may, on the other hand, be waived). The Supreme Court previously has disposed of cases against states on the ground that the statute relied upon by plaintiff did not adequately express Congress's intention to render states subject to suit, without reaching the question of whether Congress had power to subject states to suit even by unmistakably clear language. See Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 475-76, 478 (1987).
286. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 S. Ct. 523 (1999). The Supreme Court's order may have been a response to a recent decision by the Fifth Circuit holding the qui tam provisions of the False Claims Act to be unconstitutional. See Riley v. St. Luke's Episcopal Hosp., 196 F.3d 514 (5th Cir. 1999). That decision held that qui tam relators have standing but that the qui tam provisions of the Act violate the Take Care Clause of the Constitution. See id. at 522, 531. Judge DeMoss, in a concurring opinion, expressed the view that qui tam relators lack standing. See id. at 531-32 (DeMoss, J., concurring).
287. See, e.g., Caminker, supra note 183, at 380-85; James T. Blanch, Note, The Constitutionality of the False Claims Act's Qui Tam Provision, 16 HARV. J.L. & PUB. POL'Y 701, 708-31 (1993); Frank A. Edgar, Jr., Comment, "Missing the Analytical Boat": The Unconstitutionality of the Qui Tam Provisions of the False Claims Act, 27 IDAHO L. REV. 319, 331-37 (1990-1991); Thomas R. Lee, Comment, The Standing of Qui Tam Relators under the False Claims Act, 57 U. CHI. L. REV. 543 (1990).
288. See, e.g., Caminker, supra note 183, at 380-85; James T. Blanch, Note, The Constitutionality of the False Claims Act's Qui Tam Provision, 16 HARV. J.L. & PUB. POL'Y 701, 708-31 (1993); Frank A. Edgar, Jr., Comment, "Missing the Analytical Boat": The Unconstitutionality of the Qui Tam Provisions of the False Claims Act, 27 IDAHO L. REV. 319, 331-37 (1990-1991); Thomas R. Lee, Comment, The Standing of Qui Tam Relators under the False Claims Act, 57 U. CHI. L. REV. 543 (1990).
289. See, e.g., Caminker, supra note 183, at 380-85; James T. Blanch, Note, The Constitutionality of the False Claims Act's Qui Tam Provision, 16 HARV. J.L. & PUB. POL'Y 701, 708-31 (1993); Frank A. Edgar, Jr., Comment, "Missing the Analytical Boat": The Unconstitutionality of the Qui Tam Provisions of the False Claims Act, 27 IDAHO L. REV. 319, 331-37 (1990-1991); Thomas R. Lee, Comment, The Standing of Qui Tam Relators under the False Claims Act, 57 U. CHI. L. REV. 543 (1990).
290. See Blanch, supra note 277, at 708-36; Edgar, supra note 277, at 331.
291. See Blanch, supra note 277, at 712-13, 723-28; Edgar, supra note 277, at 319-20, 331-37.
292. See supra Part III.A.1.
293. See supra Part II.
294. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 682 (1977).
295. See Blanch, supra note 277, at 723-24 (stating that it seems "ludicrous" that a court could hold that a qui tam relator's bounty could satisfy the Article III injury requirement); Edgar, supra note 277, at 341 (arguing that Congress cannot assign actions to relators).
296. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982) (stating that the requirement that the plaintiff "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant" is part of the "irreducible minimum" requirement for standing).
297. See Air Courier Conference of Am. v. American Postal Workers Union, 498 U.S. 517, 529 (1991).
298. See, e.g., Valley Forge, 454 U.S. at 464.
299. 270 U.S. 568 (1926).
300. Id. at 576.
301. Allen v. Wright, 468 U.S. 737, 751 (1984).
302. In 1990, Congress changed the naturalization system; today, authority to naturalize is conferred on the Attorney General, although courts may still administer the oath of naturalization. See Pub. L. 101-649, § 401, 104 Stat. 5038 (1990) (codified in 8 U.S.C. § 1421 (1994)). Congress made this change, not because of any doubts about the constitutionality of the traditional method, but to relieve courts of the burden of naturalization proceedings, which had led to a growing naturalization backlog. See S. REP. 101-55, at 3 (1989). Naturalization remained a judicial proceeding within the jurisdiction of the federal courts until 1990. See 8 U.S.C. § 1421 (1988).
303. Another example of a statute in which Congress has authorized judicial distribution of benefits is the National Vaccine Injury Compensation Program. That program provides compensation, paid by the United States, to persons who have suffered vaccine-related injuries. See 42 U.S.C. §§ 300aa-10 to -16 (1994). Although claimants under the program have suffered injuries, those injuries are not fairly traceable to any allegedly unlawful action of the defendant, the Secretary of Health and Human Services. The vaccine program, like the Tutun case, suggests that Congress may provide for judicial actions in which the plaintiff does not meet the three-part standing test applied in most cases provided the action, if successful, will produce a personal benefit for the plaintiff. It is true that actions under the vaccine program are brought in the United States Court of Federal Claims, see 42 U.S.C. § 300aa-11(a)(1), which is not an Article III court, see 28 U.S.C. § 171(a) (1994), but it is hard to believe that Congress could not constitutionally have provided that cases under the program would be brought in district courts.
304. Tutun, 270 U.S. at 577.
305. 504 U.S. 555 (1992).
306. Id. at 572-73.
307. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)).
308. Federal Election Comm'n v. Akins, 118 S. Ct. 1777, 1786 (1998) (quoting Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting)); see also CHARLES ALAN WRIGHT, THE LAW OF FEDERAL COURTS 64 (5th ed. 1994) ("When the authors of the Constitution restricted the federal courts to determination of cases and controversies, presumably they had in mind that the business of the courts should be the kind of judicial business with which they were familiar in the English courts.").
309. See Note, supra note 183, at 83-91.
310. See Caminker, supra note 183, at 341-42; Note, supra note 183, at 83-91.
311. Glidden Co. v. Zdanok, 370 U.S. 530, 574 (1962) (plurality opinion) (quoting United Steelworkers v. United States, 361 U.S. 39, 60 (1959) (Frankfurter, J., concurring)).
312. See, e.g., Department of Commerce v. United States House of Representatives, 119 S. Ct. 765, 772 (1999); Bennet v. Spear, 520 U.S. 154, 167 (1997).
313. In addition to restricting courts to matters that are "traditionally thought to be capable of resolution through the judicial process," Article III also confines the courts to a role that is "consistent with a system of separated powers." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). Because the courts at Westminster were not constrained by the separation of powers concerns that animate the American Constitution, they considered some matters, such as requests for advisory opinions, that Article III courts cannot hear. See WRIGHT, supra note 296, at 65. The Supreme Court stressed the separation-of-powers aspect of standing doctrine in Allen v. Wright, 468 U.S. 737, 750 (1984).
314. See supra Part III.A.1. Judge DeMoss, of the Fifth Circuit, argued in his opinion in Riley that history cannot validate an unconstitutional practice. See Riley v. St. Luke's Episcopal Hosp., 196 F.3d 514, 542 (5th Cir. 1999) (DeMoss, J., concurring). Even if, however, one accepts that proposition as a general matter, it has little force in an area, such as standing, where the content of the relevant constitutional requirement serves primarily as an instruction to the courts to continue traditional practices. Cf. Burnham v. Superior Court, 495 U.S. 604, 621-22 (1990) (plurality opinion) (personal jurisdiction based on the defendant's presence in the forum state at the moment of service of process satisfies the Due Process Clause because of the historical pedigree of this basis of personal jurisdiction).
315. See supra notes 158-163 and accompanying text.
316. Of course, Congress would not even have to limit the federal government's espousal authority to cases in which it previously has attempted to authorize private suits against states. Such a limitation would be logical, however, because the attempt to authorize private suits shows that Congress had weighed the needs of private parties against those of states and had determined that the needs of private parties should prevail.
317. For some examples of situations in which the federal government may be represented by private counsel, see 7 U.S.C. § 1981(c) (1994) (authorizing the Secretary of Agriculture to hire private counsel for the prosecution or defense of some claims); 31 U.S.C. § 3718(b) (Supp. III 1998) (authorizing the Attorney General to obtain legal services from private counsel with regard to any claim of indebtedness to the United States); 28 C.F.R. § 50.16 (1997) (providing for the retention of private counsel to represent government employees who are being personally sued); 32 C.F.R. § 199.12 (1998) (providing for the retention of private counsel to represent the government with regard to the recovery of the cost of medical care provided under CHAMPUS). The last example is particularly interesting in that the regulation specifically provides that when the government and a CHAMPUS beneficiary both have an interest in litigation against the same party, "[t]he attorney for the injured beneficiary may be requested to represent the interests of the government and join both claims in a single action against the third person." 32 C.F.R. § 199.12(e)(4)(ii); see also United States v. Providence Journal Co., 485 U.S. 693, 712-13 (1988) (Stevens, J., dissenting) (listing cases in which private counsel represented the legislative or judicial branch of the United States); Electronic Data Sys. Fed. Corp. v. General Servs. Admin. Bd. of Contract Appeals, 792 F.2d 1569, 1572 (Fed. Cir. 1986) (noting that private counsel represented the Government Printing Office).
318. See United States v. Sperry Corp., 493 U.S. 52 (1989). In that case, the Court approved a statutory scheme whereby 1.5% of any award issued by the Iran-U.S. Claims Tribunal in favor of an American party is deducted from the award and paid to the United States, which uses it to pay its share of the costs of maintaining the Tribunal. See id. at 58-59. The Court approved the government's characterization of the deduction as a "user fee" and stated that the government may charge such fees, provided they are "'a fair approximation of the cost of benefits supplied.'" Id. at 60 (quoting Massachusetts v. United States, 435 U.S. 444, 463 n.19 (1978)). The Court approved the fee against a constitutional "takings" challenge, noting that the Tribunal provides remedies to parties who would otherwise have only very doubtful means available to them for seeking relief against the government of Iran. See id. at 62-63. Charging a fee for the espousal of private claims against state governments, which private parties would otherwise be unable to bring, would be quite similar. Making the fee equal to the attorney's fee plus the costs of the action would ensure that it would be "'a fair approximation of the cost of benefits supplied.'" Id. at 60 (quoting Massachusetts v. United States, 435 U.S. 444, 463 n.19 (1978)).
319. For an example, see 32 C.F.R. § 199.12, which authorizes the federal government to retain private counsel to represent it in litigation to recover the cost of medical care provided under CHAMPUS. It may happen that the government seeks to recover such costs from a party who tortiously injured a CHAMPUS beneficiary, while the beneficiary is pursuing a tort claim against the same party. In such cases, the regulation specifically provides that "[t]he attorney for the injured beneficiary may be requested to represent the interests of the government and join both claims in a single action against the third person." § 199.12(e)(4)(ii). Moreover, the regulation provides that "[s]uch representation of the government's interest normally must be made at no expense to the government." Id. 308 United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 293-94 (5th Cir. 1999).
320. Alden v. Maine, 119 S. Ct. 2240, 2269 (1999).
321. See supra text accompanying notes 173-178.
322. See, e.g., The Erosion of Authority, ST. PETERSBURG TIMES, Nov. 16, 1997, at 2D.
323. After Jones's original lawyers withdrew from her case, the Rutherford Institute, a conservative legal foundation, recruited a Dallas law firm to represent her and paid her legal costs. See Neil A. Lewis, Group Behind Paula Jones Gains Critics as Well as Fame, N.Y. TIMES, Jan. 18, 1998, at A18. The Institute stated that its purpose in taking on the case was to further the cause of human rights. See id. 313 See supra text accompanying notes 173-178.
324. For example, the NAACP Legal Defense and Education Fund has paid for cases brought by NAACP branches or has paid independent lawyers to handle them. See JACK GREENBERG, CRUSADERS IN THE COURTS: How A DEDICATED BAND OF LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION 153 (1994).
325. One of the NAACP Legal Defense and Education Fund's cases was Evers v. Dwyer, 358 U.S. 202 (1958), in which the plaintiff challenged segregated busing in Memphis. See GREENBERG, supra note 314, at 213, 553. The plaintiff had boarded a Memphis bus only once, for the purpose of initiating the litigation. Despite these facts and plaintiff's representation by the Fund, the Supreme Court held the case to be a proper Article III case. See Evers, 358 U.S. at 204. A rare exception to the rule that courts will not inquire into plaintiff's funding is that courts may not allow the defendant to hire and pay for plaintiff's counsel. See, e.g., United States v. Johnson, 319 U.S. 302, 304-05 (1943). The problem in such cases, however, is that the case is collusive, not adversary. See id. There is no lack of adverseness simply because the plaintiff obtains funding from an outside source other than the defendant.
326. See Hunt v. Washington Apple Adver. Comm'n, 432 U.S. 333, 342-43 (1977).
327. UAW v. Brock, 477 U.S. 274, 289 (1986).
328. Of course, the very idea that some of the government's money is more its "own" money than other money is questionable. All of the government's money comes from others. The government gets some of it through general taxation and some of it through user fees; it all becomes the government's money. See Frothingham v. Mellon, 262 U.S. 447, 487 (1923) (stating that money in the treasury is "partly realized from taxation and partly from other sources"). We may pass over this point, however, because the issue of who is paying for a lawsuit is irrelevant anyway.
329. See LINCOLN CAPLAN, THE TENTH JUSTICE 5 (1987).
330. See id. at 4-5; cf. The Gray Jacket, 72 U.S. (5 Wall.) 370, 371 (1866) (referring to cases in which the United States is represented by "special counsel employed by the Attorney General").
331. 108 U.S. 76 (1883).
332. See id. at 76-77.
333. See id. at 89.
334. See id.
335. 192 U.S. 286 (1904).
336. See id. at 287-92.
337. See id. at 312, 321-22.
338. See id. at 310.
339. See id. at 310-11 (internal quotation and citation omitted). The Court was particularly discussing the motive with which the bonds were given to North Dakota, but its discussion supports the more general principle that a court will not inquire into the plaintiff's motive for bringing a lawsuit.
340. See Siegel, supra note 18, at 554.
341. This point was not expressly remarked in the opinion, but it appears that the plaintiff state was represented, not by its Attorney General or other officer, but by private counsel. South Dakota's counsel, Wheeler H. Peckham, represented many parties before the Supreme Court. See Nordlinger v. United States, 191 U.S. 575, 575 (1903) (indicating that Peckham represented Nordlinger); Central Pacific R.R. Co. v. Nevada, 162 U.S. 512, 514 (1896) (indicating that Peckham represented the railroad). He was from New York and was Justice Peckham's elder brother. See Calvin R. Massey, Getting There: A Brief History of the Politics of Supreme Court Appointments, 19 HASTINGS CONST. L.Q. 1, 4 (1991).
342. See supra notes 159-163 and accompanying text.
343. See United States v. San Jacinto Tin Co., 125 U.S. 273, 285-87 (1888). Although this case is old, it is still one of the leading cases on the power of the federal government to initiate litigation. See FALLON ET AL., supra note 162, at 811; WRIGHT ET AL., supra note 160, § 3531.11, at 6-7.
344. See United States v. Texas, 143 U.S. 621, 645 (1892).
345. See Alden v. Maine, 119 S. Ct. 2240, 2269 (1999).
346. See supra Part II.A (noting that the United States always has a proper interest in enforcing federal law).
347. See United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195, 217-19 (2d Cir. 1998) (Weinstein, J., dissenting), cert. granted, 119 S. Ct. 2391 (1999); see also supra Part III.A.4.
348. See supra Part II. As that section explains, there is no meaningful distinction between suits in which the United States sues to further its sovereign interest in law enforcement and suits in which the United States seeks to further a proprietary interest. Even if there were, Congress could give the United States a proprietary interest in any suit of the kind discussed here, by authorizing it to recover from a defendant state, as a civil penalty, whatever sum the state would have owed to the private party whose rights the state violated, if the private party had been able to sue. See Siegel, supra note 18, at 553-54.
349. See Heckler v. Chaney, 470 U.S. 821, 832 (1985).
350. See id. at 833-35; Dunlop v. Bachowski, 421 U.S. 560, 567-69, 571 (1975); National Wildlife Fed'n v. United States Envtl. Protection Agency, 980 F.2d 765, 773-74 (D.C. Cir. 1992).
351. See 29 U.S.C. § 482 (1994) (requiring Secretary of Labor to bring suit to set aside the results of a labor election whenever the Secretary finds "probable cause" to believe that the election laws have been violated); Dunlop, 421 U.S. at 563-64, 567-69.
352. See, e.g., 29 U.S.C. § 482 (containing similar probable cause standard).
353. See Heckler, 470 U.S. at 833-35; Dunlop, 421 U.S. at 563-64, 567-69.
354. To assist Congress in implementing this suggestion should it desire to do so, an appendix to this Article contains the text of a proposed statute that would implement the suggestion made in this section.
355. See supra text accompanying notes 152, 159-163.
356. See Alden v. Maine, 119 S. Ct. 2240, 2269 (1999).
357. See Glauberman, supra note 22, at 103.
358. See supra Part III.A.2.b.
359. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
360. See, e.g., Mesa v. California, 489 U.S. 121, 136 (1989).
361. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65-66 (1996).
362. For example, as Professor Currie has observed, the Fourteenth Amendment also was adopted after the Eighth Amendment, but no one imagines that Congress may prescribe cruel and unusual punishments when acting under its section 5 powers. See DAVID P. CURRIE, FEDERAL COURTS: CASES AND MATERIALS 465 (4th ed. 1990).
363. See Seminole Tribe, 517 U.S. at 59.
364. See supra notes 36-43 and accompanying text.
365. A fundamental postulate of our legal system is that the remedy of retrospective damages gives parties an incentive to act lawfully. Much of tort law, for example, revolves around the proposition that parties who would be made to pay damages for accidents will have an incentive to make a socially appropriate investment in safety measures, incurring safety costs up to the point where they exceed expected accident costs. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS 73-74, 135-38 (1970).
366. See New Hampshire v. Louisiana, 108 U.S. 76, 88-91 (1883).
367. The Supreme Court indicated its approval of statutes that condition federal funding on waiver of a state's sovereign immunity in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S. Ct. 2219 (1999), but also suggested that Congress's power in this regard may not be unlimited. See id. at 2231.
368. The Court's opinion in College Savings Bank is intriguing in that, in explaining why the purported waiver of immunity in that case was ineffective, the Court relies on two different theories: first, that the waiver, if it existed at all, was only an implicit waiver, see College Sav., 119 S. Ct. at 2226-29; second, that Congress cannot, by requiring a waiver, exclude states from otherwise lawful activities, see id. at 2229-31. The first theory suggests that Congress might cure the problem by simply requiring states to provide express waivers of state sovereign immunity. Thus, for example, Congress, pursuant to its commerce power, might require anyone (including a state) who wishes to operate a railroad to get a federal license, and it might require an express waiver of sovereign immunity as a condition of receiving such a license. If such requirements were effective, Congress could require states to waive their sovereign immunity when engaging in federally regulated activity, even without providing states with any federal funding in return. The problem is that the second theory mentioned by the Court in College Savings Bank suggests that such a requirement might be unconstitutional. This part of the College Savings Bank's opinion suggests that Congress may require a state to waive its immunity only in return for a federal "gift or gratuity." See id. at 2231. This concept would not appear to cover a federal license to conduct what, in the absence of any federal legislation, would be a lawful activity. On this analysis, Congress might, for example, be able to cure the problem posed by Florida Prepaid by requiring that any state that wishes to obtain a federal patent must expressly waive its immunity from suits for patent infringement, because a patent is an affirmative benefit received from the federal government. Congress could not, however, extract express waivers of sovereign immunity from states if all states get in return is federal permission to engage in otherwise lawful activities.
369. See Siegel, supra note 18, at 564-69.
370. See Alden v. Maine, 119 S. Ct. 2240, 2254 (1999).
371. See id. at 2261.
372. This figure, of course, is not derived in any scientific way. It is only a rough estimate, but it seems legitimate to assume that the figure would be pretty high, because the "probable cause" standard, if adopted as the statutory threshold that determines when the Attorney General must approve an action, would not be a difficult standard for a plaintiff to meet. Cf. Illinois v. Gates, 462 U.S. 213, 235 (1983) (stating that for Fourth Amendment purposes, probable cause requires "only . . . probability, and not a prima facie showing").
373. Even viewing the original Constitution most favorably to states' rights, it unquestionably made very substantial inroads on state sovereignty: the Supremacy Clause, the federal power of taxation, and the power to create inferior federal courts, to name just a few important points, ensured that. That the Constitution was ratified at all is perhaps rather amazing, but because it was ratified, notwithstanding the substantial inroads on state sovereignty that it did make, it is hard to see how we can know whether some particular additional measure would have prevented ratification.