Double immunity.

• Author: Tang, Aaron
• Position: II. The Uncertain Origins of the Second Layer of Sovereign Immunity through Conclusion, with footnotes, p. 304-333

2. THE UNCERTAIN ORIGINS OF THE SECOND LAYER OF SOVEREIGN IMMUNITY

   The various objections one might raise against the Court's double immunity doctrine (141) and the seemingly unfair results it produces might be overcome in two ways. First, perhaps the double immunity rule derives from a sacrosanct source of law such that failure to abide by it would do violence to our constitutional system or the common law tradition. Alternatively, even if double immunity's existence is based purely on policy considerations, it may be the case that there are countervailing considerations militating in its favor. This Part addresses the first possibility; Part III addresses the second.

   So just where does the second layer of sovereign immunity come from? If it can be maintained that the second layer is enshrined in the Constitution or deeply rooted in common law tradition, (142) arguably like the first layer of immunity, (143) then perhaps any negative downstream effects of the rule are just a consequence of the Framers' vision. If that is true, then attacks on the rule would face the tall burden of overcoming the Framers' intent. After considering the arguments that the Constitution or the common law require adherence to the double immunity doctrine, however, it becomes clear that the doctrine is actually little more than a judge-made rule--and a misguided one at that.

   1. Constitutional Underpinnings for the Second Layer of Immunity?

      The contention that the Constitution provides express grounding for the rule that a waiver of sovereign immunity must extend unequivocally both (1) to the suit itself and (2) to the availability of monetary relief in that suit fails flatly with regard to state sovereign immunity, and fares only slightly better with respect to federal immunity.

      The problem with the constitutional argument for the second layer of immunity as applied to state defendants is that it runs headlong into the plain text of the Eleventh Amendment. The Amendment reads, "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." (144) The first thing to observe is that the Amendment focuses on prohibiting suits against the sovereign states, not on prohibiting particular kinds of remedies. The aim of the Eleventh Amendment is thus to guarantee the first layer of sovereign immunity to state defendants by barring suits without the states' consent because it is the suit itself that disparages the states' sovereign dignity. The form of relief sought (the second layer of immunity) is of no moment, (145) evidenced by the fact that suits in "law or equity" are both forbidden. The Supreme Court zeroed in on the Amendment's core concern for immunity from suit and not immunity from particular remedies in its 1887 decision In re Ayers, where it wrote, "The very object and purpose of the 11th Amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties." (146)

      Moreover, by its very terms, once the first layer of immunity from suit is waived, the Amendment makes no distinction between suits for injunctive relief and suits for monetary relief: all relief in "law or equity" is denied to citizens absent a waiver of the state's sovereign immunity. Once a state consents to be sued, then, there is no reason to think that the consent should only extend to suits at law but not at equity. Put slightly differently, it would take a strained reading of the Eleventh Amendment to require a state to consent only once to suits at equity but twice for suits at law--yet this is precisely the reading that is needed to sustain the Court's double immunity principle as a constitutional rule vis-a-vis the states.

      The constitutional claim for the second layer of federal sovereign immunity runs into a different kind of problem. Recall that, unlike state immunity, which is at least reflected in (if not totally encapsulated by) the Eleventh Amendment, there is no clear textual hook in the Constitution for federal sovereign immunity. (147) Paul Figley and Jay Tidmarsh have suggested the Appropriations Clause as one possible source, (148) which reads, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ...." (149) As Figley and Tidmarsh explain, the debates surrounding the Appropriations Clause at the Founding, along with the English experience regarding government finance, demonstrate that the Framers envisioned legislative control over the public purse--and not control by the executive or judiciary. (150) That point seems on strong footing, but the key question for sovereign immunity purposes is whether the Framers also intended "constitutionally commanded legislative control over disbursements from the purse" to entail a constitutional command precluding the judiciary from even hearing monetary claims by private plaintiffs alleging government wrongs. (151) The evidence is less clear on that question, though Figley and Tidmarsh suggest that because the power to appropriate money was intended to lie exclusively in the hands of Congress, it follows as a "small, and logical, step" that the Framers also intended Congress (and not the courts) to have the sole power to adjudicate private lawsuits for money. (152)

      Regardless of whether the Appropriations Clause is properly viewed as a constitutional source for the first layer of sovereign immunity, however, it could be argued that it contains precisely the kind of textual language one might desire to support the second principle of sovereign immunity, the immunity from monetary judgments absent express consent. "No money shall be drawn from the Treasury," including money for the purpose of paying a court-ordered monetary judgment, the argument could run, "but in Consequence of Appropriations made by law." (153) And where a statute only waives federal immunity from suit generally without mentioning monetary awards, perhaps there has been no appropriation "made by law" for such monetary relief--a failure to satisfy the clear statement requirement of the second layer of immunity.

      The argument has a neat logic to it, but the problem is that it assumes the critical question: where Congress consents to be sued for a particular category of actions, is it proper to interpret that waiver as also including Congress's inherent consent to remedy the harms it has caused? That is, Congress's very act of waiving its sovereign immunity from suit could constitute the necessary "appropriation made by law" to pay a monetary award where one is owed. In order for that not to be the case, and in order for the Appropriations Clause to create an additional layer of immunity beyond the traditional immunity from suit, would require an assumption that Congress's consent to be sued represents a consent to the jurisdiction of a court that is separate (and separable to begin with) from its consent to actually be held liable for wrongdoing. But as I show below in the discussion of the common law view of sovereign immunity, (154) that assumption is contradicted by the prevailing view at common law that, in the eyes of a sovereign, "want of right and want of remedy are reciprocal." (155) In other words, the sovereign's acknowledgment that it should be amenable to judicial process for its wrongdoing necessarily includes the recognition that it will redress the harms it has caused--there is simply no need for the sovereign to affirmatively say both.

      The Appropriations Clause account for the second layer of federal sovereign immunity fails for another reason: it proves too much. If the Clause is truly the source of federal sovereign immunity, it follows that claims for damages against the federal government may be pursued when the money being sought has been appropriated by law. Yet one of the most common classes of lawsuits against the federal government involves contract claims wherein private plaintiffs allege that the federal government has failed to make good on its end of a contractual bargain--claims that, in essence, seek the recovery of money that has already been appropriated by law when Congress authorized the contract in the first instance. (156) If the Appropriations Clause argument for a second layer of immunity is taken seriously, then no additional waiver of immunity should be required from the monetary judgments in such contract claims.

      But Congress and the Supreme Court have rejected this approach. Congress did so in passing the Tucker Act, which waives the federal government's sovereign immunity in breach of contract claims, (157) and the Court has duly noted the necessary effect of the Tucker Act's waiver in a wide range of cases. (158) That waiver, though, would be redundant if Figley and Tidmarsh are correct about the Appropriations Clause, at least to the extent that plaintiffs in breach of contract claims are suing to compel the federal government to make good on payments that have already been appropriated per an approved federal contract. (159)

      In the absence of express language that justifies the double immunity rule, perhaps support for the rule can be drawn from structural principles embodied in, if not expressly stated by, the Constitution. (160) One such possibility, although the Supreme Court certainly did not articulate this rationale in Nordic Village, Lane, or Sossamon, is that the rule represents a self-imposed restraint by the judiciary under separation of powers principles. The theory would run that requiring an express statement waiving both immunity from suit and immunity from damages is necessary to ensure that the judicial branch does not create remedies that were not envisioned by the legislative branch even though the suits themselves were. Yet to accept this explanation would be to accept a...