This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
Article III does not in express terms grant jurisdiction in suits between a State and the United States, but in a number of instances suits brought by the United States against individual States of the Union have been entertained and decided by the Supreme Court In United States v. North Carolina46 an action of debt upon certain bonds issued by the defendant State was tried and determined upon its merits, judgment being rendered in favor of the defendant. No question of jurisdiction is discussed in the briefs of counsel or in the opinion of the court. In a later case, however, it was declared that "it did not escape the attention of the court, and the judgment would not have been rendered, except upon the theory, that this court has original jurisdiction of a suit brought by the United States against a State."47
In United States v. Texas48 the United States again appeared as plaintiff in a suit against a State, this time with reference to a matter of boundary. Here the question of jurisdiction was raised and carefully considered. After calling attention to the fact that if a dispute as to boundary or other matters is not determinable in the Supreme Court, it is not determinable anywhere, and its settlement in case of continued disagreement must be by physical force, Justice Harlan, who delivered the opinion of the court, continued: "We cannot assume that the framers of the Constitution, while extending the judicial power of the United States to controversies between two or more States of the Union, and between a State of the Union and foreign States, intended to exempt a State altogether from suit by the General Government. They could not have overlooked the possibility that controversies capable of judicial solution might arise between the United States and some of the States, and that the permanence of the Union might be endangered if to some tribunal was not intrusted the power to determine them according to the recognized principles of law. And to what tribunal could a trust so momentous, be more appropriately committed than to that which the people of the United States, in order to form a more perfect Union, establish justice and insure domestic tranquility, have constituted with authority to speak for all the people and all the State, upon questions before it to which the judicial power of the Nation extends? It would be difficult to suggest any reason why this court should have jurisdiction to determine questions of boundary between two or more States, but not jurisdiction of controversies of like character between the United States and a State."
46 136 U. S. 211: 10 Sup. Ct. Rep. 920; 34 L. ed. 336.
47 United States v. Texas. 143 U. S. 621: 12 Sup. Ct Rep. 488; 36 L. ed. 285. Cf. Columbia Law Review, II, 283, 364, "Notes on Suits Between States," by Carmen F. Randolph.
48 143 U. S. 621; 12 Sup. Ct. Rep. 488; 36 L. ed. 285.
Only since 1902 may it be said to have been certainly determined that the Supreme Court will assume jurisdiction in suits brought by a State of the Union against the United States.
In Chisholm v. Georgia, Chief Justice Jay had indicated, obiter, that such a suit would not be entertained for the reason that the court would be without power to enforce its orders should judgment be rendered against the defendant. In Florida v. Georgia,49 however, the United States was allowed by the court to intervene in a suit between two States, but without becoming one of the parties to the record. And in Mississippi v. Johnson50 it was indicated that in a proper suit a bill might be filed by a State against the United States. Finally, in Minnesota v. Hitchcock,51 decided in 1902, jurisdiction was squarely asserted. In that case it was held that a suit by a State to enjoin the Secretary of the Interior of the United States from selling certain Indian lands, was a suit against the United States. "The legal title to these lands," said the court, "is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale, to divest the Government of its title, and vest it in the State. The United States is therefore the real party affected by the judgment and against which in fact it will operate, and the officers have no pecuniary interest in the matter." By statute the United States had consented to be sued in matters relating to these Indian lands. Jurisdiction was assumed by the court, and the case decided upon its merits. "This is a controversy," said the court, "to which the United States may be regarded as a party. It is one, therefore, to which the judicial power of the United States extends. It is of course, under that clause [extending jurisdiction over controversies 'to which the United States shall be a party'] a matter of indifference whether the United States is a party plaintiff or defendant. It could not fairly be adjudged that the judicial power of the United States extends to those cases in which the United States is a party plaintiff and does not extend to those cases in which it is a party defendant."
49 11 How. 293; 13 L. ed. 702.
50 4 Wall. 475; 18 L. ed. 437.
51 185 U. S. 373; 22 Sup. Ct. Rep. 650; 46 L. ed. 954.
In this case counsel on neither side raised the question of the original jurisdiction of the court, being anxious, it would appear, that the case should be decided on its merits. This silence, however, Justice Brewer, who rendered the opinion of the court, declared was not sufficient in itself to give to the court such jurisdiction or to excuse the court from satisfying itself upon the point. "The silence of counsel," said Justice Brewer, "does not waive the question, nor would the express consent of the parties give to this court a jurisdiction which was not warranted by the Constitution and laws. It is the duty of every court of its own motion to inquire into the matter. . . . Consent may waive an objection so far as respects the person, but it cannot invest the court with a jurisdiction which it does not by law possess over the subject-matter."