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Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity

77 Pages Posted: 8 Oct 2013 Last revised: 3 Jun 2014

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

Date Written: April 18, 2014

Abstract

The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.

Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.

In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).

Keywords: sovereign immunity, federal sovedreign immunity, suits against the government, litigation with the federal government, administrative law, statutory interpretation, canons of statutory interpretation

Suggested Citation

Sisk, Gregory C., Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity (April 18, 2014). 92 North Carolina Law Review 1245 (2014); U of St. Thomas (Minnesota) Legal Studies Research Paper No. 13-29. Available at SSRN: https://ssrn.com/abstract=2337238

Gregory C. Sisk (Contact Author)

University of St. Thomas School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

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