This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified that the federal courts could not and would not hear an action brought by the House against the president for failing to perform his duties under the laws and Constitution. Dellinger based his conclusion on the House’s lack of standing, but I did not hear him or anyone else raise sovereign immunity as an issue.
But yesterday the SEC also filed its reply brief in its subpoena enforcement action against the House Ways & Means Committee and, as I was reading it, the light bulb went on. If the House were correct in the sovereign immunity position taken in that case, its proposed lawsuit against President Obama would seem to be barred by its own position unless it could take advantage of a express waiver in existing law. It is not at all obvious that any such waiver exists.
Of course, the same could be said of lawsuits that the House has already filed. The SEC notes in its brief that courts “have not applied (let alone discussed) federal sovereign immunity in the myriad cases where one branch of government (sometimes Congress) acting in a sovereign capacity sues another branch of government (sometimes to enforce a subpoena).” In a footnote, it cites two House-initiated suits, Comm. on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), and Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), which would have been barred by sovereign immunity if it were applicable. SEC Reply Br. 3 & n.1. In neither case, however, did any party or the court raise sovereign immunity as an issue.
The SEC’s position is that sovereign immunity is simply inapplicable to suits by one part of the federal sovereign against another. The fact that neither party can identify any case in which sovereign immunity was discussed in the context of inter-branch (or intra-branch) lawsuits cuts against the House’s position, not the SEC’s. The House, it argues, is seeking an extension of the sovereign immunity doctrine with no foundation in the case law. See SEC Reply Br. 4 (“While [the House] attack[s] the Commission for not identifying any cases in which a court has rejected such an extension, the Commission should not bear the burden of proving a negative.”).
In light of the consequences for any lawsuit against the president, maybe the House should hope the SEC is right.