Against sovereign immunity.

• Author: Chemerinsky, Erwin

1. INTRODUCTION: OF COURSE, THE GOVERNMENT CAN DO WRONG

   Sovereign immunity is an anachronistic relic and the entire doctrine should be eliminated from American law. The principle of sovereign immunity is derived from English law, which assumed that "the King can do no wrong."(1) Since the time of Edward the First, the Crown of England has not been suable unless it has specifically consented to suit.(2) Throughout American history, United States courts have applied this principle, although they often have admitted that its justification in this country is unclear.(3)

   A doctrine derived from the premise that "the King can do no wrong" deserves no place in American law. The United States was founded on a rejection of a monarchy and of royal prerogatives.(4) American government is based on the fundamental recognition that the government and government officials can do wrong and must be held accountable. Sovereign immunity undermines that basic notion.

   The doctrine is inconsistent with the United States Constitution. Nowhere does the document mention or even imply that governments have complete immunity to suit. Sovereign immunity is a doctrine based on a common law principle borrowed from the English common law. However, Article VI of the Constitution states that the Constitution and laws made pursuant to them are the supreme law, and, as such, it should prevail over government claims of sovereign immunity.(5) Yet, sovereign immunity, a common law doctrine, trumps even the Constitution and bars suits for relief against government entities in violation of the Constitution and federal laws.

   Sovereign immunity is inconsistent with a central maxim of American government: no one, not even the government, is above the law. The effect of sovereign immunity is to place the government above the law and to ensure that some individuals who have suffered egregious harms will be unable to receive redress for their injuries.(6) The judicial role of enforcing and upholding the Constitution is rendered illusory when the government has complete immunity to suit. Moreover, sovereign immunity undermines the basic principle, announced in Marbury v. Madison, that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."(7)

   All of this seems so clear and obvious. Yet sovereign immunity is not fading from American jurisprudence; quite the contrary, the Supreme Court is dramatically expanding its scope. In Alden v. Maine, the Court held that sovereign immunity broadly protects state governments from being sued in state court without their consent, even to enforce federal laws.(8) In Seminole Tribe v. Florida, the Court greatly limited the ability of Congress to authorize suits against state governments and to override sovereign immunity.(9) The Court applied this principle within the past couple of years to bar suits against states for patent infringement(10) and for age discrimination.(11) Although all of these cases involve suits against state governments, the Court has indicated no willingness or likelihood of relaxing the sovereign immunity of the United States government.

   In this article, I argue that this entire body of law is simply wrong and that the doctrine of sovereign immunity should be banished from American law. No government--federal, state, or local--should be accorded sovereign immunity in any court. Part II considers the constitutional status of sovereign immunity and makes two arguments: first, that sovereign immunity is not a doctrine based in the United States Constitution; and second, that sovereign immunity should be regarded as inconsistent with the Constitution. Part III then considers the policy justifications for sovereign immunity and argues that it is an undesirable doctrine that undermines both government accountability and compensation for injured individuals. In Part III, I also consider the primary justifications for sovereign immunity--protecting government treasuries, separation of powers, the lack of authority for suits against government entities, the existence of adequate alternatives to suits against the government, and tradition--and argue that none of these justify the doctrine.

   Obviously, I do not foresee the Supreme Court eliminating sovereign immunity any time soon. The trend, unquestionably, is in the opposite direction. Yet, I feel confident in the prediction that there is a time that the Supreme Court will abolish sovereign immunity. The doctrine conflicts with too many basic constitutional principles to survive.

2. THE UNCONSTITUTIONAL STATUS OF SOVEREIGN IMMUNITY

   The Supreme Court unquestionably has found that sovereign immunity, particularly for state governments, is a constitutional requirement. In Alden v. Maine, the Court declared: "We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts."(12) In Seminole Tribe v. Florida, the Court was explicit that the Eleventh Amendment is a constitutional limit on federal subject matter jurisdiction, and that Congress can override it by statute only pursuant only to Section Five of the Fourteenth Amendment.(13) In other words, the Court has found state sovereign immunity to be part of the Constitution and thus prevented Congress, by statute, from overriding it. In essence, the Court has found sovereign immunity to be a right of state governments and to operate just like individual rights: it limits the legislative power and trumps all other claims.

   Moreover, the sovereign immunity of the United States government is firmly established. Long ago, Chief Justice John Marshall declared that "[t]he universally received opinion is, that no suit can be commenced or prosecuted against the United States."(14) Many times the Supreme Court has reiterated this principle, holding that "the United States cannot be lawfully sued without its consent in any case."(15)

   In this section, I make two distinct arguments. First, I contend that sovereign immunity is not a constitutional doctrine. Second, I argue that sovereign immunity should be regarded as an unconstitutional doctrine; it conflicts with many aspects of the United States Constitution. It is important to separate these two steps in the analysis. The former explains why the doctrine should not be found in the United States Constitution. By itself, this does not justify abolishing the doctrine, though if this conclusion is accepted, it would mean that Congress by statute could authorize suits against governments. The latter argument, however, goes further and maintains that the doctrine should be deemed unconstitutional and therefore must be eliminated.

   1. Is There a Constitutional Basis for Sovereign Immunity?

      For the last several decades, discussions about constitutional interpretation have been dominated by a debate between originalist and non-originalist modes of interpretation. Originalism is the view that "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution."(16) In contrast, non-originalism is the "contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four comers of the document."(17) Originalists believe that the Court should find a right to exist in the Constitution only if it is expressly stated in the text or was clearly intended by its framers. If the Constitution is silent, originalists say it is for the legislature, unconstrained by the courts, to decide the law. Nonoriginalists think that it is permissible for the Court to interpret the Constitution to protect rights that are not expressly stated or clearly intended. Sovereign immunity cannot be found in the Constitution under either of these theories of constitutional interpretation.

      Actually, the more important argument is demonstrating that sovereign immunity cannot be justified under an originalist approach. All of the recent cases expanding the scope of sovereign immunity--Seminole Tribe v. Florida, Alden v. Maine, Florida Prepaid v. College Savings Bank, College Savings Bank v. Florida Prepaid, Kimel v. Florida Board of Regents, and Board of Trustees of the University of Alabama v. Garrett(18)--have been decided by 5-4 margins. In each case, the majority was comprised of the five most conservative Justices on the Court: Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. These are the Justices who most frequently profess an originalist philosophy.(19) Yet, sovereign immunity cannot be justified under a faithful adherence to an originalist approach to constitutional interpretation.

      Originalists maintain that rights should be found in the Constitution only if stated in the text or clearly intended by its framers. Sovereign immunity, as applied by the Rehnquist Court, is a right of governments to be free from suit without their consent. Yet, it is a right that cannot be found in the text or the framers' intent.

      The text of the Constitution is silent about sovereign immunity. Not one clause of the first seven articles even remotely hints at the idea of governmental immunity from suits. No constitutional amendment has bestowed sovereign immunity on the federal government.

      A claim might be made that the Eleventh Amendment provides sovereign immunity to state governments. Yet, if this is a textual argument, a careful reading of the text does not support the claim. The Eleventh Amendment states, "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." Initially, it should be noted that the Eleventh Amendment applies only in federal...