Sovereign Immunity is a doctrine that precludes a suit against the sovereign (government) without its consent. In English law, this concept is based on the concept of the “the sovereign can do no wrong.” In American law, the doctrine was implemented with a slightly different rationale in mind. Under United States’ common law, the “sovereign is exempt from suit (on the) practical ground that there can be no legal right against the authority that makes the law on which the right depends.[1]
In the United States, sovereign immunity is derived from the Eleventh Amendment to the Constitution. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.[2] Taken literally, this seems to imply that there is nothing barring the judiciary to hear suits against the state brought by its own citizens. However, in 1890, the court in Hans v. Louisiana, went on to add that the Eleventh Amendment was in fact a bar to federal suits against a state brought by that state’s own citizens.[3] The court also noted that this provision was “taken for granted” at the time of the ratification of the Eleventh Amendment.[4]
The federal sovereign immunity is not a right to be free of trial. Rather, the sovereign immunity doctrine is asserted as a defense to liability. The Supreme Court has ruled that in a case involving the government’s sovereign immunity the statute in question must be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires.[5] It is also important to note that the doctrine protects the government, rather than government officials, from tort liability. However, courts have construed the immunity to extent to government officials performing within their official line of duty. [6]
In certain circumstances, the sovereign immunity doctrine can be waived. The “Waiver of Sovereign Immunity,” provides that: “A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose.”[7] It is perhaps because of these waivers of immunity that the doctrine has been attacked as obsolete rather than absolute.
While the scope of this paper will be limited to United States federal and state immunity, it is important to note that sovereign immunity does take other forms. In International Law, a type of immunity applies between nations. Another type of sovereign immunity extends to Indian Tribes. Sovereign immunity is not a right granted to Indian Tribes, but rather, a right inherently possessed by them. This was recognized in the historic Supreme Court case, U.S. v. Winans, which said that “[t]he treaty was not a grant of rights to the Indians, but a grant of rights from them–a reservation of those not granted.”[8]
The doctrine of sovereign immunity has undergone changes over time, but it has yet to be abolished. While sovereign immunity may seem to be an obsolete, unconstitutional doctrine, there must be some compelling reasons for keeping it around, as it has survived into the twenty-first century, and is still being used by the federal courts.[9]
When examining whether the doctrine of sovereign immunity is still relevant in the United States, one begins to question whether it has any place in the common law system at all. Although the doctrine of sovereign immunity is deeply rooted in Anglo-Saxon heritage, it has been subject to a number of criticisms. Opponents of the doctrine argue that it allows government officials to be considered “above the law,” a status which flies in the face of the U.S. Constitution. Others contend that the doctrine has essentially grown obsolete, as there are now a number of exceptions to the doctrine, such that the government has basically decided in which specific, limited cases it will allow itself to be sued.
The doctrine of sovereign immunity seems to be inconsistent with a maxim that is central to government in America: no one, to include the government, is above the law. American government recognizes that government officials can (and will) do wrong and therefore must be held accountable. However, the sovereign immunity doctrine has the opposite effect; that is, to forbid accountability and redress for injuries for unlawful acts, no matter how egregious.[10] This also blocks the judicial “check” of upholding the Constitution when the government deems itself to be immune from suit.
In addition to arguments that the doctrine is unfounded, it is also charged with being obsolete. This is perhaps because of the rise of consent-to-suit statutes, which circumvent the doctrine. Consent-to-Suit Statutes have become prevalent, on both the state and federal levels.
Through the Tucker Act, the United States government has actually waived its sovereign immunity with respect to some lawsuits.[11] The Tucker Act gives the United States’ Claims Court jurisdiction to hear specific cases against the United States, which arise “upon the Constitution, or any act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.[12] In other words, the government has exposed itself to liability for certain and specific claims. These claims include contractual claims, noncontractual claims where the plaintiff seeks return of money paid to the government and noncontractual claims where the plaintiff seeks to be paid money by the government.
States are also beginning to abolish their own sovereign immunity. North Dakota abolished the doctrine of sovereign immunity from tort law. In 1991, Judy Bulman sued the State of North Dakota for the wrongful death of her husband, who had died in a traffic accident at a road construction site. The trial court granted summary judgment for the defendants, citing sovereign immunity from liability. The appeals court, however, waived the State’s sovereign immunity, as stated in the N.D. State Constitution. The court further explained that the doctrine of sovereign immunity was a legacy from a time when governments were smaller and less able to absorb the cost and inconvenience of tort liability actions. Moreover, the court pointed out, “. . . [W]e are aware of no persuasive public policy reasons to continue a constitutional interpretation that condones an absolute bar to tort liability. [13]
While the abundance of consent-to-suit statues and state waivers seem to demonstrate that sovereign immunity is a thing of the past, defenders of the doctrine staunchly disagree. There is an argument to be made for the fact that sovereign immunity is of a constitutional nature, and is therefore untouchable. A lengthy law review article by professor Alfred Hill delineates why sovereign immunity should be protected. His primary argument for maintaining the sovereign immunity is cost-effectiveness for the states. However, the other side of the coin argues that our United States Constitution is silent on the matter of sovereign immunity. The first seven articles fail to bestow governmental immunity from suit. [14]
Despite mounting evidence suggesting that sovereign immunity is obsolete, perhaps even unfounded, in the United States, the reality is that it seems to be here to stay. In the case of Alden v. Maine, the Supreme Court actually expanded the scope of sovereign immunity. [15] Here, the decision went so far as to include state laws in the protected status, even if it means failing to enforce a federal law. Seminole Tribe v. Florida reaffirmed that sovereign immunity is here to stay, when the Court essentially limited the ability of Congress to override the immunity of state governments.[16]
Exploring the Alternatives: If not Sovereign Immunity, then what?
The doctrine of sovereign immunity seems to be in a sort of legal limbo. The immunity is no longer “absolute,” as the courts, governments and Congress delineate certain exceptions to the rule. However, as has been demonstrated by relevant Supreme Court cases, the doctrine appears to be here to stay. For this reason, it may be necessary to seek out alternatives to the doctrine of sovereign immunity, that is, alternatives that may serve a similar purpose without so blatantly flying in the face of the United States’ Constitution.
Perhaps one alternative would be to allow the states to determine their own stance on sovereign immunity, so long as it works within the parameters of the Eleventh Amendment. As has been demonstrated, states are already beginning to walk away from the doctrine of sovereign immunity, as they have begun to allow for suits in specific instances.
Another alternative would be a sweeping statute, to be enacted by Congress that would seek to clarify the sovereign immunity doctrine, and set forth a more specific set of criteria as to the circumstances under which the government may be held accountable. The United States government has already scratched the surface by enacting the Tucker Act. [17]
A final alternative would be a re-interpretation of the sovereign immunity doctrine on the part of the Supreme Court. Of course, this can and would only happen under a certain set of circumstances, wherein a relevant case would be brought to, and accepted by, the Court. It has been suggested that under a different set of Supreme Court justices, it is at least possible if not plausible that sovereign immunity could be struck down entirely as not of a constitutional matter.
Conclusion
The sovereign immunity doctrine states that the government is sovereign, and therefore cannot be held liable for its actions. Despite this unique type of protection, the federal government has waived its absolute immunity, allowing for suits to be brought under very specific and restrictive circumstances. For this reason, it has been argued that the doctrine of sovereign immunity is essentially dead, as it is no longer absolute.
For all of the exceptions to the immunity doctrine, the government remains very much sovereign today. What makes it “sovereign” in this context is that no party can sue the government unless the government specifically allows the suit.
As opponents to the doctrine are quick to point out, the United States Constitution makes no mention of a sovereign status for the federal government. In fact, the oft-cited Eleventh Amendment does not specifically delineate such immunity. Judicial interpretation of the federal diversity clause in the Eleventh Amendment got us the sovereign immunity doctrine. Many states, and in select instances the federal government, have found it necessary to work around the doctrine, removing any hint of “absolute” sovereignty. While the modern-day Court seems to be embracing and expanding the power of the sovereign immunity doctrine, in the hands of a different set of justices, its days may be numbered.
BIBLIOGRAPHY
Alden v. Maine. 527 U.S. 706 (1999). Summary available via Cornell Law School, http://www.law.cornell.edu/supct/html/98-436.ZS.html.
Barr v. Mateo, 360 U.S. 564 (1959).
Bulman v. Hulstrand Const. Co., Inc. (N.D. 1994) in West Publishing Vol. 521 North Western Reporter, 2d Series, 632.
Chemerinsky, Erin. “Against Sovereign Immunity.” Stanford Law Review, May 1, 2001. http://www.accessmylibrary.com/coms2/summary_0286-10431640_ITM.
Hans v. Louisiana, 134 U.S. 1 (1890). Summary available at http://supreme.justia.com/us/134/1/.
Hill, Alfred. “In Defense of Our Law of Sovereign Immunity.” 42 Boston College Law Rev. (2001). http://www.bc.edu/bc_org/avp/law/lwsch/journals/bclawr/42_3/01_TXT.htm.
Kawananakoa v. Polybank, 205 U.S. 349 (1907), http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol;=205&invol;=349.
McMahon v. United States, 342 U.S. 25, (1951), http://supreme.justia.com/us/342/25/case.html.
Seminole Tribe v. Florida, 517 U.S. 44 (1996), http://supreme.justia.com/us/517/44/.
The Tucker Act of 1855, 28 U.S.C.A. Section 1331. http://www.lectlaw.com/def2/t064.htm.
United States Constitution, Eleventh Amendment (1795), http://www.law.cornell.edu/constitution/constitution.amendmentxi.html.
United States v. Nordic Village, Inc., 503 U.S. 30, 1992).
United States v. Winans, 198 U.S. 371 (1905). Summary available at http://www.focuswest.org/law/winans.cfm.
“Waiver of Sovereign Immunity.” 11 USC 106, http://www.law.cornell.edu/uscode/uscode11/usc_sec_11_00000106—-000-.html.
Warren, Kenneth F. “Administrative Law in the Political System.” Boulder, CO: Westview Press, 2004.
[1] Kawananakoa v. Polybank, 205 U.S. 349, 353 (1907), http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol;=205&invol;=349.
[2] United States Constitution. Eleventh Amendment (1795), http://www.law.cornell.edu/constitution/constitution.amendmentxi.html.
[3] Hans v. Louisiana, 134 U.S. 1 (1890). Summary available at http://supreme.justia.com/us/134/1/.
[4] Ibid.
[5] United States v. Nordic Village, Inc., 503 U.S. 30, 33-35 (1992).
[6] Barr v. Mateo, 360 U.S. 564 (1959).
[7] “Waiver of Sovereign Immunity.” 11 USC 106, http://www.law.cornell.edu/uscode/uscode11/usc_sec_11_00000106—-000-.html.
[8] United States v. Winans, 198 U.S. 371 (1905). Summary available at http://www.focuswest.org/law/winans.cfm.
[9] Warren, Kenneth F. “Administrative Law in the Political System.” Boulder, CO: Westview Press, 2004, 457.
[10] Chemerinsky, Erin. “Against Sovereign Immunity.” Stanford Law Review, May 1, 2001. http://www.accessmylibrary.com/coms2/summary_0286-10431640_ITM.
[11] The Tucker Act of 1855, 28 U.S.C.A. Section 1331. http://www.lectlaw.com/def2/t064.htm.
[12] Ibid.
[13] Bulman v. Hulstrand Const. Co., Inc. (N.D. 1994) in West Publishing Vol. 521 North Western Reporter, 2d Series, 632
[14] Chemerinsky, Erin. “Against Sovereign Immunity.” Stanford Law Review, May 1, 2001. http://www.accessmylibrary.com/coms2/summary_0286-10431640_ITM.
[15] Alden v. Maine. 527 U.S. 706 (1999). Summary available via Cornell Law School, http://www.law.cornell.edu/supct/html/98-436.ZS.html.
[16] Seminole Tribe v. Florida, 517 U.S. 44 (1996), http://supreme.justia.com/us/517/44/.
[17] The Tucker Act of 1855, 28 U.S.C.A. Section 1331. http://www.lectlaw.com/def2/t064.htm.
