In Arizona v. United States, the federal government sued to enjoin enforcement of Arizona’s immigration laws on preemption grounds. And in Virginia ex rel. Cuccinelli v. Sebelius, the state attorney general argued that the state had standing to challenge the Affordable Care Act because it would unconstitutionally preempt a state law disallowing health insurance mandates. In each case, the government plaintiff asserted that it had power to regulate a particular subject to the exclusion of, or in addition to, the government defendant. Proponents of such sovereignty-based actions argue that the suits reflect modern federalism, that the government’s interests are separate and perhaps stronger than those of individuals, and that recognizing such suits serves valid regulatory purposes.
Because such sovereignty-based suits generally are neither statutorily authorized nor constitutionally required, the government plaintiff is asking the court to exercise discretionary equitable powers to recognize the action. There are ample reasons the courts should decline to use their discretion to recognize such actions. Existing remedies accommodate modern federalism; the judicial system traditionally sees private parties as having the paramount interest in contesting alleged governmental illegality; and the regulatory purposes of causes of action are served by traditional actions between government and individuals. In seeking recognition of sovereignty-based actions, moreover, the government plaintiff effectively asks the courts to extend the boundaries of both judicial and executive power, while undermining the role of individuals in challenging government illegality.