U.S. Code » Title 28 » Part PART VI— PARTICULAR PROCEEDINGS › Chapter CHAPTER 161— UNITED STATES AS PARTY GENERALLY

28 U.S.C. § 2403

Intervention by United States or a State; constitutional question

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(a) In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.(b) In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.(June 25, 1948, ch. 646, 62 Stat. 971; Pub. L. 94–381, § 5, Aug. 12, 1976, 90 Stat. 1120.)Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., § 401 (Aug. 24, 1937, ch. 754, § 1, 50 Stat. 751).

Word “action” was added before “suit or proceeding”, in view of Rule 2 of the Federal Rules of Civil Procedure.

Since this section applies to all Federal courts, the word “suit” was not required to be deleted by such rule.

“Court of the United States” is defined in section 451 of this title. Direct appeal from decisions invalidating Acts of Congress is provided by section 1252 of this title.

Changes were made in phraseology.

Editorial NotesAmendments

1976—Pub. L. 94–381, § 5(b), inserted “or a State” after “United States” in section catchline.

Subsecs. (a), (b). Pub. L. 94–381, § 5(a), designated existing provisions as subsec. (a) and added subsec. (b).

Statutory Notes and Related SubsidiariesEffective Date of 1976 Amendment

Amendment by Pub. L. 94–381 not applicable to any action commenced on or before Aug. 12, 1976, see section 7 of Pub. L. 94–381, set out as a note under section 2284 of this title.

Notes of Decisions
Cited in 883 cases (155 in the last 5 years), 1949–2026 · leading case: Ne. Ohio Coalition for the Homeless & Serv. Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006).
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Ne. Ohio Coalition for the Homeless & Serv. Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006). · cites it 6× “The State first argues that it has a statutory right to intervene pursuant to 28 U.S.C. § 2403 (b), which provides “[i]n any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the…”
Arizonans for Off. English v. Arizona, 520 U.S. 43 (1997). · cites it 5× “He also moved to intervene on behalf of the State, pursuant to 28 U. S. C. § 2403 (b), 10 in order to contest on appeal the District Court’s declaration that a provision of Arizona’s Constitution violated the Federal Constitution.”
Tennessee v. Garner, 471 U.S. 1 (1985). · cites it 4× “[7] *7 The State of Tennessee, which had intervened to defend the statute, see 28 U. S. C. § 2403 (b), appealed to this Court.”
Maine v. Taylor, 477 U.S. 131 (1986). · cites it 6× “Maine, pursuant to 28 U. S. C. § 2403 (b), intervened to defend the validity of its statute, arguing that the ban legitimately protects the State's fisheries from parasites and nonnative species that might be included in shipments of live baitfish.”
Cutter v. Wilkinson, 544 U.S. 709 (2005). · cites it 2× “Pursuant to 28 U. S. C. § 2403 (a), the United States intervened in the District Court to defend RLUIPA's constitutionality.”
In Re Handy, 764 A.2d 1226 (Vt. 2000). · cites it 6× “44 is based, see 28 U.S.C. § 2403 ; Fed.R.App.P. 44, our self-imposed rule is not jurisdictional so as to prevent the adjudication of a constitutional issue in the absence of official notice.”
Edward Peruta v. Cnty. of San Diego, 771 F.3d 570 (9th Cir. 2014). · cites it 13× “The panel further concluded that 28 U.S.C. § 2403 and Federal Rule of Civil Procedure 5.”
Odom v. Penske Truck Leasing Co., 2018 OK 23 (Okla. 2018). · cites it 2× “The court must, under 28 U.S.C. § 2403 , certify to the appropriate attorney general that a statute has been questioned.”
Int'l Paper Co. v. The Inhabitants of the Town of Jay, Maine, Appeal of State of Maine, 887 F.2d 338 (1st Cir. 1989). · cites it 6× “On July 15, 1988, Maine filed a motion with the district court to intervene as a party defendant, pursuant to 28 U.S.C. § 2403 (b) and Rule 24 of the Federal Rules of Civil Procedure.”
United States v. Cox, 906 F.3d 1170 (10th Cir. 2018). · cites it 3× “" 28 U.S.C. § 2403 (b). So far in this case, the district court had neither ruled nor been asked to rule on the SAPA's constitutionality.”
Bartnicki v. Vopper, 532 U.S. 514 (2001). · cites it 2× “The Court of Appeals accepted the appeal, and the United States, also a petitioner, intervened pursuant to 28 U. S. C. § 2403 in order to defend the constitutionality of the federal statute.”
Lopez-Aguilar v. Marion Cnty. Sheriff's Dep't, 924 F.3d 375 (7th Cir. 2019). · cites it 2× “R. Civ. P. 5.1 (permitting the state attorney general to intervene when a party files a paper "drawing into question the constitutionality" of a state statute).”
Show all 883 citing cases →
— 28 U.S.C. § 2403(a) — 3 cases
Hanley v. Stewart, 21 F. Supp. 2d 1088 (D. Ariz. 1998).
Escobedo v. Oklahoma Dept. of Pub. Saf., 2021 OK CIV APP 2 (Okla. Civ. App. 2020).
David Sanders v. Laura Plappert (6th Cir. 2026).
— 28 U.S.C. § 2403(b) — 4 cases
In Re Martinez, 107 B.R. 378 (Bankr. S.D. Florida 1989).
Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777 (6th Cir. 2005).
Allen Ex Rel. Allen v. Califano, 456 F. Supp. 168 (D. Maryland 1978).
Good Bus. or No Bus. LLC & all those similarly situated v. City of Detroit (E.D. Mich. 2025).
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