Converse-Osborn: State Sovereign Immunity, Standing, and the Dog-Wagging Effect of Article III

Carlos M. Vázquez*

“[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . . [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: the federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: if the federal courts lack the constitutional power to adjudicate cases based on certain types of substantive federal statutes, the legislature must lack the power to enact the statute in the first place. This converse operation of the Osborn axiom is reflected in the Court’s decisions on the Eleventh Amendment and state sovereign immunity over the past two decades, culminating in the recent decisions in Allen v. Cooper and PennEast Pipeline Co. v. New Jersey. Recent standing decisions, including most recently TransUnion LLC v. Ramirez, may reflect a similar doctrinal trajectory in the Court’s standing jurisprudence.

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© 2023 Carlos M. Vázquez. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Scott K. Ginsburg Professor of Law, Georgetown University Law Center. I am grateful to William Buzbee, Richard Fallon, Vicki Jackson, Richard Re, and David Vladeck for helpful comments, and to Megan Bechtel, Gavin Landgraf, and Shaun Rogers for helpful research assistance.