The Sovereign Shield

64 Pages Posted: 10 Mar 2020 Last revised: 13 Apr 2020

See all articles by Kate Elengold

Kate Elengold

UNC School of Law

Jonathan Glater

University of California - Irvine School of Law

Date Written: February 17, 2020

Abstract

As the federal government has come to rely increasingly on private companies to perform government functions, more businesses are testing the power of their association with the federal government to shield them from liability, regulation, and oversight. Such non-governmental entities seek the benefit of the federal government’s “sovereign shield” by exploiting three doctrines — preemption, derivative sovereign immunity, and intergovernmental immunity. These entities touch on every conceivable kind of government action and, by extension, citizens’ lives; their insulation from liability would also affect myriad aspects of citizens’ lives.

This Article untangles the doctrines that extend the sovereign shield to protect private actors. And it exposes the alliance that such extension enables between the executive branch of the federal government and for-profit businesses. We explain how that alliance effects a shift in the balance of power in favor of the federal government and at the expense of the states, at one level, and in favor of private enterprise and at the expense of consumers, at another. Using the student loan servicing industry as a case study, this Article lays bare how government contractors try to exploit the sovereign shield. And it sounds an alarm about the consequences of this particular alliance — injured consumers with no path to redress, destabilization of longstanding principles of federalism and separation of powers, and heightened risks of agency capture.

Keywords: constitutional law, federalism, separation of powers, consumer law, student debt, government contracting

Suggested Citation

Elengold, Kate and Glater, Jonathan, The Sovereign Shield (February 17, 2020). Stanford Law Review, Vol. 73, 2021; UC Irvine School of Law Research Paper No. 2020-28. Available at SSRN: https://ssrn.com/abstract=3539622 or http://dx.doi.org/10.2139/ssrn.3539622

Kate Elengold (Contact Author)

UNC School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Jonathan Glater

University of California - Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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