Rejecting Sovereign Immunity in Public Law Litigation
Howard M. Wasserman
Florida International University (FIU) - College of Law
Fordham Law Review Res Gestae, vol. 80, p. 76 (2012)
Florida International University Legal Studies Research Paper No. 12-07
A procedural quirk has arisen in federal litigation challenging restrictions on marriage equality, such as California's Proposition 8 or the federal Defense of Marriage Act: The federal or state executive officers named as defendants have declined to defend the constitutionality of the prohibitions. In their stead, various groups -- including congressional committees, legislators, and citizens groups -- have sought to intervene to defend their constitutionality, both in the trial court and on appeal. In a recent article in Fordham Law Review, Matthew Hall argued that such intervening defendants should be made to satisfy a form of defendant-specific Article III standing, to ensure that the defending party is adverse, interested in, and affect by the litigation or judgment and to guarantee a true case-or-controversy.
This response essay argues that Hall's focus on defendant standing is necessary only because of the judge-created doctrine of federal and state sovereign immunity, under which the government cannot be sued eo nomine ("by that name"). Instead, plaintiffs seeking to enjoin enforcement of laws as constitutionally invalid must sue the responsible executive-branch officer, under the theory of Ex Parte Young. The problem arises where, as in the marriage-equality cases, that responsible executive officer declines to defend. The solution is to reject the doctrine of federal and state sovereign immunity, which arguably has no logical place in a republican system of government, and allow constitutional plaintiffs to sue the United States or the State of California by name. This eliminates the standing concerns, as the government is an unquestionably interested and adverse named defendant which would be bound by any injunction. This also eliminates the scramble of would-be intervenors that we have seen in the marriage equality cases. The government is formally as well as practically a party to the case that can litigate its interests by deciding who is authorized to defend it in court (to "be" the "government"), when, and how.
Number of Pages in PDF File: 14
Keywords: Sovereign immunity doctrine, standing, Intervenor - Defendants, U.S. Constitution, Article III, Eleventh Amendment, Perry v. Brown, Defense of Marriage Act (DOMA), Bipartisan Legal Advisory Group (BLAG), Public Law Litigation, same sex marriageAccepted Paper Series
Date posted: June 1, 2012
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