MBE Fast Fact: Intersovereign Litigation

Though not a very heavily tested area within the subject of Constitutional Law, there are a few points to keep in mind about intersovereign litigation:

The United States may sue a state without its consent. Public policy, however, forbids a state from suing the United States without the consent of the United States. Note importantly, however, that Congress can pass legislation that permits the United States to be sued by a state.

Questions might present in which a federal officer is being sued and you'll need to determine whether that suit against the federal officer should be deemed a suit against the United States or instead a suit against the officer as an individual. It will be deemed to be a suit against the United States if the judgment sought would be satisfied out of the public treasury and if the officer was acting within his scope of authority. However, if the officer acts outside of his authority as a United States officer (such acts are deemed "ultra vires") then specific relief against the individual officer will be granted as a suit against the officer in such a situation will not be deemed to be a suit against the United States.

Finally, note that one state may sue another state without the consent of the latter state. In such a lawsuit, the Supreme Court has original jurisdiction.