Intergovernmental Immunity

• Author: Sotirios A. Barber
• Pages: 1382-1383

Page 1382

Intergovernmental immunities are exemptions of the state and national governments from attempts to interfere with each other's governmental operations. Thus, one government may claim immunity from the other's regulations and taxes. Though immunity claims may invoke specific provisions such as the TENTH AMENDMENT, they reflect deeper assumptions about the institutional structure envisioned by the Constitution as a whole. Immunity problems originate in the tension between the nation's need to acknowledge the supremacy of federal policies while respecting a tradition of indestructible states. Governmental structures are not ends in themselves in constitutional theory; their ultimate status depends on their efficacy in securing what THE FEDERALIST #45 called "the solid happiness of the people." Implying ends, institutions also imply powers. (See NECESSARY AND PROPER CLAUSE.) Grant the supremacy of national powers over state powers, and the erosion of state institutions follows eventually despite talk of indestructible states. Conversely, protection for state institutions will eventually defeat national power in some respects, talk of federal supremacy notwithstanding. On balance, judicial resolutions of this tension have favored national supremacy.

Immunity claims usually occur in the areas of taxation, regulation, and litigation. Most of the latter involve state claims of immunity from suits by private parties in federal court under the ELEVENTH AMENDMENT. The amendment, however, does not extend immunity that would be considered inconsistent with the Constitution's general plan of government, including the principle of national supremacy. The amendment grants no immunity from suits by other states and the national government. It is not a barrier to Supreme Court review of state court decisions involving federal law. Nor does the amendment bar private plaintiffs seeking federal court injunctions to enforce Congress's CIVIL RIGHTS laws or federal constitutional rights. In Parden v. Terminal Railway (1964) the Court declined to exclude state-owned railroads from a congressional act authorizing employees' suits for negligence. The Court reasoned that the state had effectively waived immunity by engaging in activity subject to congressional regulation. Though later decisions gave this doctrine of "constructive waiver" a STATES ' RIGHTS twist by requiring clear statements of congressional intent, the Court still assumes...