Wasserman on Rejecting Sovereign Immunity In Public Law Litigation

Howard Wasserman (FIU) has published Rejecting Sovereign Immunity in Public Law Litigation in Fordham's Res Gestae.

In ongoing marriage equality litigation, the named executive-officer defendants have declined to defend the constitutionality of the relevant laws in court. California's governor and attorney general refused to defend the constitutionality of Proposition 8; various federal cabinet officers, including Eric Holder, have refused to defend § 3 of DOMA in the strongest terms. This has lead to a scramble of other actors seeking to jump into the litigation to defend the constitutionality of the anti-equality law. In California, it was the sponsors of the popularly enacted law (who were allowed to defend in the trial court and appeal the adverse judgment to the Ninth Circuit); as to DOMA, it has been the Bipartisan Legal Advisory Group ("BLAG"), a standing committee of the House leadership. Hall argues (in a piece he presented at the Junior Fed Courts Workshop in February) that this type of intervention is proper only if the intervenor-defendant can satisfy a form of independent defendant-specific standing, to ensure an Article III case-or-controversy with a genuinely adverse and interested defending party.

I argue in response that this really should not be a matter of Article III standing and we only talk about it in those terms because of sovereign immunity. Sovereign immunity (of state and federal governments) prohibits private litigation against the government eo nomine (subject to some exceptions typically not applicable in constitutional litigation) and forces constitutional plaintiffs to sue responsible executive-branch officers under the theory of Ex Parte Young. But if we reject sovereign immunity, which arguably has no logical place in a republican system of government, we also eliminate the need for Young or the individual-officer workaround. We also eliminate the scramble of would-be intervenors that we have seen in the marriage equality cases. Plaintiffs can simply sue the state or the United States by name, giving us an unquestionably interested and adverse named defendant. The government then decides who is authorized to defend it (to "be" it) in court, when, and how.

RJE