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Saturday, November 17, 2018

What sovereign immunity has wrought (Update)

Steve writes at SCOTUSBlog about a motion in a pending cert case asking the Court to decide on the validity of Matthew Whitaker's appointment as AG, in order to figure out who should be substituted (for Jeff Sessions) as respondent in the petition. This is happening while lower courts consider the validity of the Whitaker appointment in more substantive contexts. (Gerard Magliocca believes that a Court order compelling briefing will compel Whitaker to withdraw or compel the President to nominate a new AG).

This is another example of how much time is wasted by sovereign immunity, rather than being honest about the fact that the government, and not any individual officer, is the real defendant in a challenge to a constitutionally invalid law.

Update: There is a discussion on the Civ Pro/Fed Courts Prof listserv about why plaintiffs ever sue the officer by name rather than office. FRCP 17(d) provides that "A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added," so it is permissible to sue the title. And since an EPY action is against the officer in his official capacity, it is against the office/title, so we end up in the same place. This gets me to my original point--if we just sued the office (and thus the U.S.), it would remain more straight-forward.

Posted by Howard Wasserman on November 17, 2018 at 03:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


I agree, Howard. As Erwin Chemerinsky once put it (in a 2001 Stanford Law Review article), "A doctrine derived from the premise that 'the King can do no wrong' deserves no place in American law."

Posted by: Anthony Gaughan | Nov 19, 2018 10:42:13 AM

Interesting , but I couldn't really understand , what it has to do with sovereign immunity ( just because defendants are not obvious ) .

The core of the issue , it seems , is the power of the president to appoint officials who have not been confirmed by the Senate , on a temporary basis , like in this case .

So , if the president , can come up , with reasonable reasoning , why he can't right now , appoint a permanent one , then he has the " inherent power " to appoint a temporary one . For that is how Article II dictates in the relevant part , I quote :

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

End of quotation :

One can't read the wording " recess of the Senate " as solely and rigidly referring to recess alone . But to , "residual power " , inherent power , to fill up all vacancies . For during recess , is the subjective intent of the lawmaker , but surly , the objective one , is to fill the gaps , whenever needed , provided , that he has reasonable reason , to delay permanent appointment , and anyway , the Senate confirmation needed.

All this , as long as , it doesn't contradict , any other explicit provision ( emphasizing : explicit , clearly established one )


Posted by: El roam | Nov 17, 2018 5:16:19 PM

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