Abstract
The immunity question is whether the private relator or the United States should be deemed the plaintiff in a qui tam action against a state. If the relator is deemed the plaintiff, the state is immune from suit by that private party. If the United States is deemed the plaintiff, the state is not immune from a suit by the United States. Over the last decade, academic commentators, judges, and litigants have spilled much ink on this issue, reaching differing conclusions.' Their works focus on the typical modalities of constitutional argument, mining the Constitution's text, history, structure, and the like. In short, these writers ask as an original matter what the Constitution says about state immunity from qui tam actions. One more article along those lines would add little, if anything, to the debate.
This Article takes a different tack. Instead of reviewing the question anew, we focus on provocative dicta in a recent Supreme Court case -- Blatchford v. Native Village of Noatak -- that bears on the question. After all, from a realist perspective, even dicta reveals something about the Court's thinking on the issue, especially given that five members of the Blatchford majority remain on the Court. Any litigant or lower court would be remiss to dismiss such language, and the Court itself will likely consider, if not adopt, the position there stated.