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ArtIII.S2.C1.2.3 Cases to Which the United States is a Party

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Right of the United States to Sue

In the first edition of his Treatise, Justice Story noted that while an express power is no where given in the constitution, the right of the United States to sue in its own courts "is clearly implied in that part respecting the judicial power. . . . Indeed, all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns." 1 As early as 1818, the Supreme Court ruled that the United States could sue in its own name in all cases of contract without congressional authorization of such suits. 2 Later, this rule was extended to other types of actions. In the absence of statutory provisions to the contrary, such suits are initiated by the Attorney General in the name of the United States. 3

By the Judiciary Act of 1789, and subsequent amendments to it, Congress has vested in the federal district courts jurisdiction to hear all suits of a civil nature at law or in equity brought by the United States as party plaintiff. 4 As in other judicial proceedings, the United States, like any party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought. 5 Under the long-settled principle that the courts have the power to abate public nuisances at the suit of the government, the provision in § 208(2) of the Labor Management Relations Act of 1949, authorizing federal courts to enjoin strikes that imperil national health or safety was upheld on the grounds that the statute entrusts the courts with the determination of a case or controversy on which the judicial power can operate and does not impose any legislative, executive, or non-judicial function. Moreover, the fact that the rights sought to be protected were those of the public in unimpeded production in industries vital to public health, as distinguished from the private rights of labor and management, was held not to alter the adversary (case or controversy) nature of the litigation instituted by the United States as the guardian of the aforementioned rights. 6 Also, by reason of the highest public interest in the fulfillment of all constitutional guarantees, including those that bear . . . directly on private rights, . . . it [is] perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief. 7

Suits Against States

Controversies to which the United States is a party include suits brought against states as party defendants. The first such suit occurred in United States v. North Carolina, 8 which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the state, the Court tacitly assumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court's original jurisdiction did not extend to cases to which the United States is a party. 9 Stressing the inclusion within the judicial power of cases to which the United States and a state are parties, the elder Justice Harlan pointed out that the Constitution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States was given by Texas when admitted to the Union upon an equal footing in all respects with the other States. 10

Suits brought by the United States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over land patents issued to the state by the United States in breach of its trust obligations to the Chippewa tribe. 11 In United States v. West Virginia, 12 the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries with the states. 13 Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit. 14 Like suits were decided against Louisiana and Texas in 1950. 15

Immunity of the United States from Suit

Pursuant to the general rule that a sovereign cannot be sued in its own courts, the judicial power does not extend to suits against the United States unless Congress by statute consents to such suits. This rule first emanated in embryonic form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because there is no power which the courts can call to their aid. 16 In Cohens v. Virginia, 17 also in dictum, Chief Justice Marshall asserted, the universally received opinion is that no suit can be commenced or prosecuted against the United States. The issue was more directly in question in United States v. Clarke, 18 where Chief Justice Marshall stated that, as the United States is not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it. He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination. 19 Indeed, it was not until United States v. Lee 20 that the Court examined the rule and the reasons for it, and limited its application accordingly.

Because suits against the United States can be maintained only by congressional consent, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed. 21 As only Congress may waive the immunity of the United States from liability, officers of the United States are powerless either to waive such immunity or to confer jurisdiction on a federal court. 22 Even when authorized, suits may be brought only in designated courts, 23 and this rule applies equally to suits by states against the United States. 24 Congress may also grant or withhold immunity from suit on behalf of government corporations. 25

Suits Against United States Officials

United States v. Lee, a 5-to-4 decision, qualified earlier holdings that a judgment affecting the property of the United States was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiff when the United States is not a defendant or a necessary party to the suit. 26 Except, nevertheless, for an occasional case like Kansas v. United States, 27 which held that a state cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the government and would in effect be a suit against the United States. 28 Even more significant is Stanley v. Schwalby, 29 holding that an action of trespass against an army officer to try title in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States.

Subsequent cases reaffirm the rule of United States v. Lee that, where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority. 30 On the other hand, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed. 31 But, as the Court has pointed out, it is not an easy matter to reconcile all of the decisions of the court in this class of cases, 32 and, as Justice Frankfurter quite justifiably stated in a dissent, the subject is not free from casuistry. 33 Justice Douglas' characterization of Land v. Dollar, "this is the type of case where the question of jurisdiction is dependent on decision of the merits," 34 is frequently applicable.

Larson v. Domestic & Foreign Corp., 35 illuminates these obscurities somewhat. A private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company's failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute and therefore a suit against the United States. It held that, although an officer in such a situation is not immune from suits for his own torts, his official action, though tortious, cannot be enjoined or diverted, because it is also the action of the sovereign. 36 The Court then proceeded to repeat the rule that the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff’s property) can be regarded as so individual only if it is not within the officer’s statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void. 37 The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right. 38

Suits against officers involving the doctrine of sovereign immunity have been classified into four general groups by Justice Frankfurter. First, there are those cases in which the plaintiff seeks an interest in property which belongs to the government or calls for an assertion of what is unquestionably official authority. 39 Such suits, of course, cannot be maintained. 40 Second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits are maintainable. 41 Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general these suits are maintainable. 42 Fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort. 43 This category of cases presents the greatest difficulties because these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the United States.

Suits Against Government Corporations

The multiplication of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. In Keifer & Keifer v. RFC, 44 the Court held that the government does not become a conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Nor does the creation of a government corporation confer upon it legal immunity. Whether Congress endows a public corporation with governmental immunity in a specific instance is a matter of ascertaining the congressional will. Moreover, it has been held that waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally. 45 On the other hand, Indian nations are exempt from suit without further congressional authorization; it is as though their former immunity as sovereigns passed to the United States for their benefit, as did their tribal properties. 46

Footnotes

  1.  Jump to essay-13 J. Story, Commentaries on the Constitution of the United States 1274 (1833), (emphasis in original).
  2.  Jump to essay-2Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818).
  3.  Jump to essay-3United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. Beebe, 127 U.S. 338 (1888); United States v. Bell Telephone Co., 128 U.S. 315 (1888). Whether without statutory authorization the United States may sue to protect the constitutional rights of its citizens has occasioned conflict. Compare United States v. Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y. 1970), and United States v. Brittain, 319 F. Supp. 1658 (S.D.Ala. 1970), with United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979), and United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). The result in Mattson and Solomon was altered by specific authorization in the Civil Rights of Institutionalized Persons Act, Pub. L. No. 96-247, 94 Stat. 349 (1980), 42 U.S.C. §§ 1997 et seq. See also United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980) (no standing to sue to correct allegedly unconstitutional police practices).
  4.  Jump to essay-428 U.S.C. § 1345. By virtue of the fact that the original jurisdiction of the Supreme Court extends only to those cases enumerated in the Constitution, jurisdiction over suits brought by the United States against persons or corporations is vested in the lower federal courts. Suits by the United States against a state may be brought in the Supreme Court under its original jurisdiction, 28 U.S.C. § 1251(b)(2), although such suits may also be brought in the district courts. Case v. Bowles, 327 U.S. 92, 97 (1946).
  5.  Jump to essay-5United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).
  6.  Jump to essay-6United Steelworkers v. United States, 361 U.S. 39, 43-44 (1960), citing In re Debs, 158 U.S. 564 (1895).
  7.  Jump to essay-7United States v. Raines, 362 U.S. 17, 27 (1960), upholding jurisdiction of the federal court over an action to enjoin state officials from discriminating against black citizens seeking to vote in state elections. See also Oregon v. Mitchell, 400 U.S. 112 (1970), in which two of the four cases considered were actions by the United States to enjoin state compliance with the Voting Rights Act Amendments of 1970.
  8.  Jump to essay-8136 U.S. 211 (1890).
  9.  Jump to essay-9United States v. Texas, 143 U.S. 621 (1892).
  10.  Jump to essay-10143 U.S. at 642-46. This suit, it may be noted, was specifically authorized by the Act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 92, § 25. See also United States v. Louisiana, 339 U.S. 699, 701-02 (1950).
  11.  Jump to essay-11United States v. Minnesota, 270 U.S. 181 (1926). For an earlier suit against a state by the United States, see United States v. Michigan, 190 U.S. 379 (1903).
  12.  Jump to essay-12295 U.S. 463 (1935).
  13.  Jump to essay-13United States v. Utah, 283 U.S. 64 (1931).
  14.  Jump to essay-14United States v. California, 332 U.S. 19 (1947).
  15.  Jump to essay-15United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950). See also United States v. Maine, 420 U.S. 515 (1975).
  16.  Jump to essay-162 U.S. (2 Dall.) 419, 478 (1793).
  17.  Jump to essay-1719 U.S. (6 Wheat.) 264, 412 (1821).
  18.  Jump to essay-1833 U.S. (8 Pet.) 436, 444 (1834).
  19.  Jump to essay-19United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419, 431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren, 74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122, 126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437-439 (1879). It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922). The reason for such immunity, as stated by Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is that there can be no legal right as against the authority that makes the law on which the right depends. See also The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority – which is clearly an agency of the United States – partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922); Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other government-owned corporations have been held liable for their wrongful acts. 39 Ops. Atty. Gen. 559, 562 (1938).
  20.  Jump to essay-20106 U.S. 196 (1882).
  21.  Jump to essay-21Lonergan v. United States, 303 U.S. 33 (1938). Waivers of immunity must be express. Library of Congress v. Shaw, 478 U.S. 310 (1986) (Civil Rights Act provision that the United States shall be liable for costs the same as a private person insufficient to waive immunity from awards of interest). The result in Shaw was overturned by a specific waiver. Civil Rights Act of 1991, Pub. L. No. 102-166, 106 Stat. 1079, § 113, amending 42 U.S.C. § 2000e–16. Immunity was waived, with limitations, for contracts and takings claims in the Tucker Act, 28 U.S.C. § 1346(a)(2). Immunity of the United States for the negligence of its employees was waived, again with limitations, in the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671-2680. Other waivers of sovereign immunity include Pub. L. No. 94-574, § 1, 90 Stat. 2721 (1976), amending 5 U.S.C. § 702 (waiver for nonstatutory review in all cases save for suits for money damages); Pub. L. 87-748, § 1(a), 76 Stat. 744 (1962), 28 U.S.C. § 1361 (giving district courts jurisdiction of mandamus actions to compel an officer or employee of the United States to perform a duty owed to plaintiff); Westfall Act, 102 Stat. 4563, 28 U.S.C. § 2679(d) (torts of federal employees acting officially), and the Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412 (making United States liable for awards of attorneys' fees in some instances when it loses an administrative proceeding or a lawsuit). See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC's sue-and-be-sued clause waives sovereign immunity, but a Bivens implied cause of action for constitutional torts cannot be used directly against FSLIC).
  22.  Jump to essay-22United States v. New York Rayon Co., 329 U.S. 654 (1947).
  23.  Jump to essay-23United States v. Shaw, 309 U.S. 495 (1940). Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).
  24.  Jump to essay-24Minnesota v. United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a state to acquire a right of way over lands owned by the United States and held in trust for the public. See also Block v. North Dakota, 461 U.S. 273 (1983).
  25.  Jump to essay-25Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).
  26.  Jump to essay-26United States v. Lee, 106 U.S. 196, 207-208 (1882). The Tucker Act, 20 U.S.C. § 1346(a)(2), now displaces the specific rule of the case, as it provides jurisdiction against the United States for takings claims.
  27.  Jump to essay-27204 U.S. 331 (1907).
  28.  Jump to essay-28Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).
  29.  Jump to essay-29162 U.S. 255 (1896). Justice Gray endeavored to distinguish between this case and Lee. Id. at 271. It was Justice Gray who spoke for the dissenters in Lee.
  30.  Jump to essay-30Land v. Dollar, 330 U.S. 731, 737 (1947).
  31.  Jump to essay-31Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. Garfield, 211 U.S. 70 (1908); New Mexico v. Lane, 243 U.S. 52 (1917); Wells v. Roper, 246 U.S. 335 (1918); Morrison v. Work, 266 U.S. 481 (1925); Minnesota v. United States, 305 U.S.. 382 (1939); Mine Safety Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock, 185 U.S. 373 (1902).
  32.  Jump to essay-32Cunningham v. Macon & Brunswick R.R., 109 U.S. 446, 451 (1883), quoted by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949).
  33.  Jump to essay-33Larson, 337 U.S. at 708. Justice Frankfurter's dissent also contains a useful classification of immunity cases and an appendix listing them.
  34.  Jump to essay-34330 U.S. 731, 735 (1947) (emphasis added).
  35.  Jump to essay-35337 U.S. 682 (1949).
  36.  Jump to essay-36337 U.S. at 689-97.
  37.  Jump to essay-37337 U.S. at 701-02. This rule was applied in Goldberg v. Daniels, 231 U.S. 218 (1913), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel delivery. This suit was held to be against the United States. See also Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government's authority on the ground that an agent is answerable only to his principal for misconstruction of instructions, given for the sole benefit of the principal. In Larson, the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536 (1926), but in effect overruled it. Goltra involved an attempt of the government to repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. A suit to enjoin repossession was held not to be a suit against the United States on the ground that the actions were personal and in the nature of a trespass. Also decided in harmony with the Larson decision are the following, wherein the suit was barred as being against the United States: (1) Malone v. Bowdoin, 369 U.S. 643 (1962), a suit to eject a Forest Service Officer from land occupied by him in his official capacity under a claim of title from the United States; and (2) Hawaii v. Gordon, 373 U.S. 57 (1963), an original action by Hawaii against the Director of the Budget for an order directing him to determine whether a parcel of federal land could be conveyed to that state. In Dugan v. Rank, 372 U.S. 609 (1963), the Court ruled that inasmuch as the storing and diverting of water at the Friant Dam resulted, not in a trespass, but in a partial, although a casual day-by-day, taking of water rights of claimants along the San Joaquin River below the dam, a suit to enjoin such diversion by Federal Bureau of Reclamation officers was an action against the United States, for grant of the remedy sought would force abandonment of a portion of a project authorized and financed by Congress, and would prevent fulfillment of contracts between the United States and local Water Utility Districts. Damages were recoverable in a suit under the Tucker Act. 28 U.S.C. § 1346(a).
  38.  Jump to essay-38337 U.S. at 703-04. Justice Frankfurter, dissenting, would have applied the rule of the Lee case. See Pub. L. No. 94-574, 1, 90 Stat. 2721 (1976), amending 5 U.S.C. § 702 (action seeking relief, except for money damages, against officer, employee, or agency not to be dismissed as action against United States).
  39.  Jump to essay-39Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709-710 (1949) (dissenting opinion).
  40.  Jump to essay-40Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. McAdoo, 234 U.S. 627 (1914); Wells v. Roper, 246 U.S. 335 (1918). See also Belknap v. Schild, 161 U.S. 10 (1896); International Postal Supply Co. v. Bruce, 194 U.S. 601 (1904).
  41.  Jump to essay-41Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); Tennessee Electric Power Co. v. TVA, 306 U.S. 118 (1939) (holding that one threatened with direct and special injury by the act of an agent of the government under a statute may challenge the constitutionality of the statute in a suit against the agent).
  42.  Jump to essay-42Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S. 606 (1918).
  43.  Jump to essay-43United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536 (1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947). See also Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959). Butz v. Economou, 438 U.S. 478 (1978); Carlson v. Green, 446 U.S. 14 (1980); Harlow v. Fitzgerald, 457 U.S. 800 (1982).
  44.  Jump to essay-44306 U.S. 381 (1939).
  45.  Jump to essay-45FHA v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a congressional waiver of immunity in the case of a governmental corporation did not mean that funds or property of the United States can be levied on to pay a judgment obtained against such a corporation as the result of waiver of immunity. Id. at 250. Further, the Court recognized that under some circumstances, constitutional concerns might give rise to “implied exceptions” to “sue and be sued” clauses. Id. at 245. However, in Thacker v. Tennessee Valley Authority, the Supreme Court declined to read a constitutionally based objection into such a clause. 587 U.S. ____, No. 17-1201, slip op. at 7 (2019). The government had argued that allowing litigants to challenge the performance of “discretionary functions” would violate “separation-of-powers principles” by subjecting the agency to “judicial second-guessing.” Id. at 6 (internal quotation marks omitted). The Court rejected this argument, explaining that Congress holds the power to determine federal agencies’ immunity and that Congress’s exercise of that power, even though it may subject the government to the judicial process, “raises no separation of powers problems.” Id. at 7–8. The Court left open the possibility that in a future case, “suits challenging the [government] entity’s governmental activity”—as opposed to its commercial activity—“may run into an implied limit on its sue-and-be-sued clause.” Id. at 9. But the Court emphasized that this immunity would be available “only if it is ‘clearly shown’ that prohibiting the ‘type[] of suit [at issue] is necessary to avoid grave interference’ with a governmental function’s performance.” Id. (quoting Burr, 309 U.S. at 245).
  46.  Jump to essay-46United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940).