Right of the United States to Sue.—In the first edition of his Treatise, Justice Story noted that while “an express power is no where given in the constitution,” the right of the United States to sue in its own courts “is clearly implied in that part respecting the judicial power. . . . Indeed, all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns.”996 As early as 1818, the Supreme Court ruled that the United States could sue in its own name in all cases of contract without congressional authorization of such suits.997 Later, this rule was extended to other types of actions. In the absence of statutory provisions to the contrary, such suits are initiated by the Attorney General in the name of the United States.998
Immunity of the United States From Suit.—Pursuant to the general rule that a sovereign cannot be sued in its own courts, the judicial power does not extend to suits against the United States unless Congress by statute consents to such suits. This rule first emanated in embryonic form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.”1011 In Cohens v. Virginia,1012 also in dictum, Chief Justice Marshall asserted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke,1013 where Chief Justice Marshall stated that, as the United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.1014 Indeed, it was not until United States v. Lee1015 that the Court examined the rule and the reasons for it, and limited its application accordingly.