Scalia's Bargain

40 Pages Posted: 1 Jun 2016 Last revised: 22 Mar 2017

Date Written: May 31, 2016


In 1970, Senator Edward M. Kennedy introduced a bill to add a waiver of sovereign immunity to the Administrative Procedure Act. A series of Supreme Court opinions had left sovereign immunity doctrine hopelessly muddled, making it unclear when plaintiffs could challenge federal agency actions in court. Initially, Kennedy’s bill languished because the Executive Branch opposed it. Then Antonin Scalia became Assistant Attorney General, and the Executive Branch changed its position. As Scalia explained, however, the Executive Branch conditioned its support for the bill on the understanding that the amendment would not throw open the courthouse doors for claims against the United States, but would be subject to the other limitations of the APA. The groups that had drafted the bill shared that understanding. Senator Kennedy accepted Scalia’s conditions, and the bill finally passed in 1976.

Unfortunately, the amendment that was meant to clarify the law has not done so. Instead, the question of how to interpret the APA’s waiver of sovereign immunity has generated inter- and intra-circuit splits and general confusion. Moreover, the majority of the federal courts of appeals have ignored Scalia and Kennedy’s bargain and held that the waiver of sovereign immunity in the APA is not constrained by the other limitations in the APA. This article – the first to address this issue – argues that the majority approach misinterprets the waiver and raises serious concerns related to separation of powers, democratic legitimacy, and the institutional competence of the courts, and should not stand.

Keywords: Administrative Procedure Act, sovereign immunity, statutory interpretation

Suggested Citation

Kovacs, Kathryn E., Scalia's Bargain (May 31, 2016). 77 Ohio St. L.J. 1155 (2016), Available at SSRN:

Kathryn E. Kovacs (Contact Author)

Rutgers Law School ( email )

Camden, NJ
United States

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