The Inevitability of Federal Sovereign Immunity
Gregory C. Sisk
University of St. Thomas School of Law (Minnesota)
Villanova Law Review, Vol. 55, p. 899, 2010
University of St. Thomas Legal Studies Research Paper No. 09-28
Our nation was founded more than two hundred years ago through a popular revolution against a sovereign monarch. In the past half-century, avenues for litigation have expanded, along with more frequent invocation of rights as claims in court - constitutional, statutory, and common-law. For better or worse, in the present day, individual sovereignty appears to be the cultural byword, celebrating unconstrained personal autonomy. Thus, the proposition that the government may be excused from having to answer to individuals in court may seem antithetical to most Americans.
And yet few doctrines are more solidly anchored in Supreme Court precedent than that the United States government may not be sued without its consent. Before the Supreme Court and in the Congress, the debate rages on about whether the states should be regarded as retaining immunity from suit even when litigation is authorized by federal legislation. But the premise that the federal government is not subject to suit without its consent occasions little meaningful dissent in public life today.
Properly understood, and given the longstanding acceptance of judicial restraint of ongoing government conduct that truly contravenes constitutional directives, federal sovereign immunity fits comfortably with popular sovereignty, divided and diminished government power, and political accountability for public officers. Sovereign immunity - or something like it - may have been an inevitable legal development, because open-ended and unconstrained access to the courts by those who object to governmental policies or actions could undermine effective governance by the people through an electoral majority.
At the same time, when the federal government has been made amenable to litigation by the democratically-elected Congress, the courts should not reconstruct a broader immunity through a jaundiced and hostile interpretation of the statute. If a statutory waiver of federal sovereign immunity is construed too strictly and narrowly, so that every statutory term is slanted against the claimant, the legislative promise of meaningful judicial relief may be frustrated.
Number of Pages in PDF File: 30
Keywords: judicial review, rule of law, sovereign immunity, sovereignty, litigation with the federal government, constitutional law, separation of powers, popular sovereignty, government litigation, federal government litigation, public litigation, democratic governanceAccepted Paper Series
Date posted: December 6, 2009 ; Last revised: April 21, 2011
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