The appropriations power and sovereign immunity.

• Author: Figley, Paul F.

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence--or nonexistence--of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690-1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English common-law decisions on sovereign immunity. After (and in part because of) the Bankers' Case, settling claims against the Crown became a function of Parliament, swept up within its newly won powers over finance and appropriations. After examining comparable developments in the American colonies and during the Confederation period and the formation of the Constitution, the Article demonstrates that the Appropriations Clause embedded in the Constitution the principle of congressional supremacy--and a resulting lack of judicial power--over monetary claims against the United States, a point recognized by early cases and commentators. As such, the Appropriations Clause provides a textual basis for the federal government's immunity from suits on claims seeking money damages.

TABLE OF CONTENTS INTRODUCTION I. ENGLISH ANTECEDENTS A. Sovereign Immunity in England Before 1776 B. Financing Government: The Foundation of Parliament's Constitutional Preeminence 1. The Gathering Storm: Finance Before the Stuarts 2. The Stuarts and the Struggle for Parliamentary Supremacy 3. Finance After the Stuarts C. The Bankers' Case and Its Aftermath II. THE AMERICAN EXPERIENCE WITH APPROPRIATIONS A. Following the English Example: Colonial Legislatures and the Control over Appropriations B. Post-Revolutionary' Legislative Supremacy over Appropriations C. The Appropriations Clause 1. The Constitutional Convention 2. Ratification Debates D. Closing the Loop: The Appropriations Power and Sovereign Immunity CONCLUSION INTRODUCTION

At a certain level of abstraction, historical arguments for and against sovereign immunity have a common quality. Those who use history to argue against the existence of a constitutional basis for sovereign immunity point to procedural devices by which the Crown could be sued--such as the petition of right, the monstrans de droit, and the traverse of office (1)--to infer that sovereign immunity did not exist in absolute form in English common law from the Middle Ages on; the argument by extension is that no such doctrine existed in the U.S. Constitution at the time of the founding. (2) For those who argue for reading sovereign immunity into the Constitution, by contrast, the limitations of these devices--including the need for the Crown's formal consent to suit, the lack of remedies for the torts of the Crown, and the cumbersomeness and infrequency of suit (3)--point toward an immunity in English law that cemented itself in the interstices of the Constitution. (4) These opposing positions share three commonalities. First, appeals to historical evidence often distill a complex history into a monolithic "yes" or "no" answer to the question of American sovereign immunity. Second, historical arguments focus principally on the common law, (5) ignoring English political and financial history that also bears on the question. Third, both sides agree that the appeal to history is necessary because the Constitution itself is silent on the existence--or nonexistence--of sovereign immunity. (6)

In this Article, we seek to dislodge these assumptions. In the American system, the permutations created by three independent variables (federal vs. state immunity, damages vs. injunctive relief, and suits against the sovereign vs. suits against officials) yield eight distinct categories of immunity. (7) This Article focuses on the central category: suits brought against the United States for damages. Incorporating contemporaneous developments in English politics and economics, and in American colonial history, we provide the context in which to understand the constitutional foundation for this type of federal sovereign immunity. (8)

In doing so, we recover an early understanding of sovereign immunity--suggested by St. George Tucker (9) and Joseph Story (10)--that the immunity of the United States from damage actions has an explicit source in the Constitution: the Appropriations Clause, which bars the expenditure of money "but in Consequence of Appropriations made by Law." (11) Among Americans who knew the history of Parliament's rise to political preeminence and recollected the resistance of colonial assemblies to royal governors, (12) the Clause was a political given. Its "power of the purse" was intended as the counterweight to the President's "power of the sword." (13)

The move made by Tucker and Story was to recognize that the third branch of government--the judiciary--fell within the reach of the Appropriations Clause. Their move is plausible, but hardly required. There is an evident distinction between entering a judgment against the United States and appropriating its funds; the lack of the latter power does not necessarily imply the lack of the former. (14) Indeed, although courts have occasionally noted the link between the Appropriations Clause and federal sovereign immunity, (15) the references are sparse, short, and usually not substantive. Academic commentary is similarly thin; the few scholars who have considered the connection have generally failed to be impressed with it. (16)

The burden of this Article is to show that the connection between sovereign immunity and the appropriations power is stronger and closer than is usually believed. Part I examines the histories of sovereign immunity and appropriations in England; it focuses particularly on the seventeenth century, when the ideas of parliamentary sovereignty, fiscal control, and sovereign immunity underwent significant development and ultimately intersected in the Bankers' Case. (17) The Bankers' Case, a set of lawsuits that wound through the English courts from 1690 to 1700, figures prominently in accounts of some opponents to sovereign immunity because it permitted an action that arose from a breach of contract by the Crown. (18) We describe the way in which the Bankers' Case must be understood against the backdrop of Parliament's rise to preeminence in the English constitutional order--a rise rendered successful only by Parliament's control over appropriations. Part II examines the analogous American history during colonial times, at the time of the Constitutional Convention, and during the early years of the Republic. We demonstrate that, during the eighteenth century, the constitutional preeminence of legislatures in determining governmental appropriations--a preeminence that the Appropriations Clause embedded in the Constitution-supplanted the common law as the basis for sovereign immunity. We conclude by considering the implications of this thesis for the doctrine of sovereign immunity.

1. ENGLISH ANTECEDENTS

   This Part begins by sketching England's five-hundred-year history of sovereign immunity prior to the American Revolution. We then describe a more contested constitutional conflict--supremacy between the Crown and Parliament--whose outcome turned on the question of government finance. We end by describing how these two currents in English legal, political, and economic history merged at the start of the eighteenth century into a principle of legislative supremacy over appropriations--a principle that requires a reinterpretation of the standard account of sovereign immunity in England.

   1. Sovereign Immunity in England Before 1776

      Compressing the history of English sovereign immunity into a few pages is a difficult task, made easier only by a number of excellent prior treatments. (19) The main lines of the history are clear enough, although some judges and scholars have not been sufficiently attentive to its nuances and context to extract modern salience.

      We begin with an uncontested point: from the thirteenth century forward, it was possible to sue the Crown. In the earliest days, when the lines of adjudicatory authority blurred in a soup of "proto-courts"-councils such as the early Parliament and quasi-administrative tribunals over which the King himself sometimes presided--all requests for royal justice, including requests to bring suit against the Crown, began as petitions that passed before the King and Chancellor. (20) Over the course of the centuries, the process for bringing suit against private individuals became routinized; obtaining a writ--the document necessary to commence a case in one of the three common-law courts (Common Pleas, King's Bench, and the Exchequer)--was no longer a matter of royal grace but a ministerial function handled within the Chancery. (21) The same became true for invoking the jurisdiction of the Chancery, which operated the alternate system of justice known as equity. (22)

      Bringing suit against the Crown, however, never lost the original quality of a respectful request for royal aid. Because the King's courts were constituted by, and therefore regarded as inferior to, the King himself, the notion that courts could as a routine matter entertain suits against the King was unimaginable. (23) But subjects could always petition the King for his permission to hear their claims against him. (24) Soon distinctions among petitions emerged. On the one side were petitions issued as a matter of royal grace or discretion; on the other were petitions of right. (25) Petitions of right claimed, in essence, that the petitioner's interests had been injured in such a way that, had the action involved a private defendant rather than the...