Intersovereign Litigation

A. Suits by the U.S. against a state

1. The United States may sue a state without its consent
2. Congress has restated the scope of original jurisdiction in 28 USC 12!1. The SC has none"clusi#e
original jurisdiction in all contro#ersies between the U.S. and a state. This means that the SC may ta$e
original jurisdiction of such a case if it so chooses or it can allow the case to be heard originally in a
lower federal court. The jurisdictional system complies with Art. %%%.
&. Suits by state against U.S. 'ublic policy forbids a state from suing the U.S. without its consent. Congress
can pass legislation that permits the U.S. to be sued by a state in gi#en situations.
C. (ederal officer as defendant
1. )imitation. Suits against a federal officer are deemed to be brought against the U.S. itself if the
judgment sought would be satisfied out of the public treasury or would interfere with public
administration and therefore are not permitted.
2. Specific relief against the indi#idual officer. Specific relief against an officer as an indi#idual will be
granted if the officer acted ultra #ires*
a. &eyond his statutory powers+ or
b. The #alid power was e"ercised in an unconstitutional manner.
,. Suits by one state against another. -ne state may sue another state without the later.s consent. The
Supreme Court has e"clusi#e original jurisdiction.
Intergovernmental Tax and Regulation Immunities
A. (ederal ta"ation and regulation of state or local go#ernments. The 1/
th
Amendment pro#ides that powers not
delegated to the United States by the Constitution0 nor prohibited by the states0 are reser#ed to the states.
This reser#ation of power is often cited as a restriction on Congress. power to regulate the states.
1. Ta" or regulation applying to state and pri#ate entities. The SC will not li$ely stri$e down on 1/
th

Amendment grounds a ta" or regulation that subjects states or local go#ernments to regulations or ta"es
that apply to both the public sector and the pri#ate sector. %t has been held that in such cases0 the states.
interests are best protected by the states. representation in Congress 1Garcia v. SAMTA2.
2. Ta" or regulation that applies only to states. 3owe#er0 the 1/
th
Amendment does limit Congress. power
to regulate the states alone by re4uiring the states to act in a particular way. Congress may not compel
states to enact or enforce a regulatory program. 1U.S. v. New York2 %f Congress passes a ta" that does not
apply to pri#ate businesses but merely ta"es state go#ernment entities0 there is a possibility that the
Court would use the 1/
th
Amendment to prohibit the ta".
a. 5"ception6 Ci#il 7ights. Congress may use its power under the 18
th
9 1!
th
Amendments to restrict
state acti#ities that it determines would #iolate the ci#il liberties of persons within the state.
b. 5"ception6 Spending 'ower Conditions. Congress may also regulate states through the spending
power by imposing e"plicit conditions on the grant of money to state or local go#ernments. Such
conditions will not #iolate the 1/
th
Amendment merely because Congress lac$ed the power to
directly regulate the acti#ity that is the subject of the spending program.
i2 5"ample* A federal law that would withhold !: of the federal highway funds otherwise
allocable to a state if the state did not set a 21 years. minimum age for the drin$ing of alcohol has
been upheld. 1S.D. v. Dole2
,. Commandeering State -fficials. The SC has held that the 1/
th
Amendment prohibits Congress from
adopting a statute that commandeers state officials by re4uiring states to regulate their own citi;ens.
1Printz v. U.S.2 3owe#er0 the Court has allowed Congress to regulate the states by prohibiting them from
performing certain acts.
&. State ta"ation and regulation of federal go#ernment
1. <o direct ta" on federal instrumentalities. A state law le#ied directly against the property or operation of
the federal go#ernment without the consent of Congress is in#alid.
2. <ondiscriminatory0 %ndirect Ta"es on the federal go#ernment or its property are permissible if they do
not unreasonably burden federal go#ernment.
,. State regulation of federal go#ernment. The states ha#e no power to regulate the acti#ities of the federal
go#ernment unless Congress consents to the regulation. Thus0 instrumentalities and agents of the federal
go#ernment are immune from state regulations relating to performance of their federal functions.
Privileges and Immunities Clauses
A. There are two pri#ileges and immunities clauses* Art. %= and the 18
th
Amendment.
1. The 18
th
Amendment clause protects attributes of U.S. citi;enship and is rarely applicable.
2. Art. %= pro#ision pre#ents some discrimination by states against nonresidents0 and is usually more
rele#ant.
&. Art. %= 'ri#ileges and %mmunities Clause pro#ides that the Citi;ens of each state shall be entitled to all '
and % of citi;ens in the se#eral states. %t prohibits discrimination by a state against nonresidents.
1. Corporations and aliens not protect because they are not citi;ens of a state for purposes of the ' and %.
2. The %nterstate ' and % Clause does not prohibit all discrimination by a state in fa#or of its own citi;ens0
but only when the denial concerns fundamental rights6 i.e.0 those in#ol#ing important commercial
acti#ities 1such as pursuit of a li#elihood2 or ci#il liberties. (or e"ample0 the following ha#e been struc$
down*
a. Statute charging nonresident commercial fisherman substantially more for commercial fishing
license than resident commercial fisherman 1>2!// #. 2!2.
b. Statute gi#ing resident creditors priority o#er nonresident creditors as to assets of foreign
corporations in recei#ing proceedings.
c. Statute or court rule re4uiring state residency to be licensed to practice law within the state.
d. State income ta" only on nonresidents who earn money within the state.
e. State law re4uiring pri#ate sector employers to gi#e hiring preferences to residents absent a closely
related substantial justification0 but states may re4uire a person to be a resident to hold go#ernment
employment.
,. Substantial justification e"ception. A state law discriminating against nonresidents may be #alid if the
state has a substantial justification for the different treatment. %n effect0 it must show that nonresidents
either cause or are part of the problem it is attempting to sol#e0 and there are no less restricti#e means to
sol#e the problem.
C. 18
th
Amendment6 'ri#ilege of <ational Citi;enship. The 18
th
Amend. ' and % clause prohibits states from
denying their citi;ens the ' and % of national citi;enship0 such as the right to petition Congress for redress of
grie#ances0 the right to #ote for federal officers0 the right to enter public lands0 the right to interstate tra#el0
and any other right flowing from the distinct relation of a citi;en to the United States ?o#ernment.
1. Corporations are not citi;ens of the U.S. and are not protected.
2. The Slaughterhouse Cases held that the fundamental rights protected against federal abuse 1first ten
amendments2 are not pri#ileges and immunities of national citi;enship within the meaning of the 18
th

Amendment+ nor are such other basic rights as the right to li#e0 wor$0 and eat. Thus0 the guarantees of
the &ill of 7ights are protected from state action only by the @ue 'rocess and 54ual 'rotection Clauses
of the 18
th
Amendment.
,. 7ight to tra#el and the 'ri#ileges and %mmunities Clause. The right to tra#el0 which is protected by the
18
th
Amendment0 includes the right of newly arri#ed citi;ens to enjoy the same pri#ileges and
immunities as are enjoyed by other citi;ens of the state.
a. 5"ample* A California statute limiting the welfare benefits of first year residents was held
unconstitutional under the 18
th
Amendment ' and % clause. The statute pro#ided that citi;ens who had
li#ed in California less than one year could recei#e only the benefits they would ha#e recei#ed in
their prior state or residence. The Court noted that the right to tra#el includes the right to be treated
e4ually in a new state of residence. 1Saen; #. 7oe2