Northwestern University School of Law
When the Clinton Administration announced its intention to challenge Proposition 209, the new prohibition on affirmative action in California, the Justice Department declined to say whether the United States would formally intervene in the lawsuit already under way or merely file an amicus brief supporting the plaintiffs. Casual observers may have assumed that the Administration considered the form of its participation to raise further political and strategic considerations. That was undoubtedly true. It was also true, however, that Justice Department lawyers faced a legal question as well. According to the precedents on point, the United States required an authorizing statute in order to become a formal party. It was necessary, then, to identify such a statute before turning to the pragmatic question whether to intervene.
A Worthy Champion for Fourteenth Amendment Rights: The United States in Parens Patriae
Northwestern University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1725