Waiving Federal Sovereign Immunity in Original Actions Between States

Abstract

There are tremendous disparities between high stakes original actions between states before the U.S. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the federal government to an original action before the Supreme Court. This article shows how federal sovereign immunity stands in the way of comprehensive resolution of interstate water rights and highlights the need for reforms to facilitate meaningful participation by the United States. In particular, it investigates the merits of a waiver of federal sovereign immunity in original actions between the states. Although federal immunity is a staple of our nation’s jurisprudence, it has no constitutional basis and it serves little purpose in this context. The article concludes that a congressional waiver of federal sovereign immunity would be appropriate and would have few downsides, at least in the case of original actions between states before the U.S. Supreme Court.

Keywords: federalism, federal courts, sovereign immunity, original actions, supreme court, water law, interstate apportionment, waiver

JEL Classification: k10, k20, k32, k40