Information about Sovereign Immunity

Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, the king (or queen) can do no wrong. In many cases, the government has waived this immunity to allow for suits; in some cases, an individual, such as an attorney general, may technically appear as defendant on the government's behalf.

In constitutional monarchies

In a constitutional monarchy, such as the United Kingdom, the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects. This position was drastically altered for the United Kingdom by the Crown Proceedings Act 1947 which made the government generally liable, with limited exceptions, in tort and contract. Even before this time it was possible to claim against the Crown with the Attorney-General's fiat (i.e. permission.) This was called a petition of right. Alternatively, Crown servants could be sued in place of the Crown (and the Crown as a matter of course paid.) Further, Mandamus and Prohibition were always available against Ministers because they derive from the prerogative.

In the United States

United States Federal civil procedure doctrines
Justiciability
Advisory opinions
Standing  · Ripeness  · Mootness
Political questions
Jurisdiction
Subject-matter jurisdiction:
Federal question jurisdiction
Diversity jurisdiction
Supplemental jurisdiction
Removal jurisdiction
Amount in controversy
Class Action Fairness Act of 2005
Personal jurisdiction:
Jurisdiction in rem
Minimum contacts
Federalism
Erie doctrine  · Abstention
Sovereign immunity  · Abrogation
· Rooker-Feldman doctrine  ·
Adequate and independent state ground

Federal sovereign immunity

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not as broad waivers of sovereign immunity as they might appear, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.

State sovereign immunity

In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment re-affirms that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak, the court explained that

we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."

(Citations omitted). In Alden v. Maine, the Court explained that while it has

sometimes referred to the States’ immunity from suit as “Eleventh Amendment immunity[,]” [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

Writing for the court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."

However, a "consequence of [the] Court’s recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Ins. Co. of N. Y. v. Chatham County (emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County, and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency.

Exceptions and abrogation

The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligence, but not intentional wrongs, of government employees. The common-law tort doctrine of respondeat superior makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy. See Brandon v. Holt.

Under the abrogation doctrine, while Congress cannot use its Article I powers to subject states to lawsuits in either federal courts, Seminole Tribe v. Florida, or a fortiori its own courts, Alden, supra, it can abrogate a state's sovereign immunity pursuant to the powers granted to it by §5 of the Fourteenth Amendment, and thus subject them to lawsuits. Seminole, supra; Fitzpatrick v. Bitzer. However:

• The court requires "a clear legislative statement" of intent to abrogate sovereignty, Blatchford, supra; Seminole, supra.
• Because Congress' power under §5 is only "the power 'to enforce,' not the power to determine what constitutes a constitutional violation," for the abrogation to be valid, the statute must be remedial or proctective of a right protected by the Fourteenth Amendment and "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," City of Boerne v. Flores. But "[t]he ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch." Kimel v. Florida Board of Regents. Simply put: "Under the City of Boerne doctrine, courts must ask whether a statutory remedy has 'congruence and proportionality' to violations of Section 1 rights, as those rights are defined by courts." Althouse, Vanguard States, Laggard States: Federalism & Constitutional Rights, 152 U. Pa. L. Rev. 1745, 1780 (2004)
• States can expressly waive sovereign immunity, but do not do so implicitly simply by participating in a commercial enterprise where Congress subjects market participants to lawsuits. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board.

Even if Congress has not abrogated a state's sovereign immunity, wronged individuals may not be completely out of luck. Ex parte Young allows federal courts to enjoin the enforcement of unconstitutional state (or federal) statutes on the theory that "immunity does not extend to a person who acts for the state, but [who] acts unconstitutionally, because the state is powerless to authorize the person to act in violation of the Constitution." Althouse, Tapping the State Court Resource, 44 Vand. L. Rev. 953, 973 (1991). The Court has openly called this a legal fiction. Pennhurst State School and Hospital v. Halderman (465 U.S.) ("the authority-stripping theory of Young is a fiction that has been narrowly construed"); Idaho v. Coeur d'Alene Tribe of Idaho ("Young rests on a fictional distinction between the official and the State"). The Young doctrine was narrowed by the court in Edelman v. Jordan, which held that relief under Young can only be for prospective, rather than retrospective relief; the court reasoned that the Eleventh Amendment's protection of state sovereignty requires the state's coffers to be shielded from suit. Prospective relief includes injunctions and other equitable orders, but would rarely include damages. This limitation of the Young doctrine "focused attention on the need to abrogate sovereign immunity, which led to the decision two years later in Fitzpatrick." Althouse, Vanguard States, supra, at 1791 n.216

For "constitutional torts," 42 U.S.C. § 1983 allows state officials to be sued in their individual or official capacities, a principle which was demonstrated again in Brandon v. Holt, 469 U.S. 464 (1984). Since state officials, like the attorney general, are indemnified by the state, damages assessed against those officials are effectively damages assessed against the state itself. Furthermore, the Bankruptcy Clause of the Constitution strips some of the sovereign immunity of the states, which was invoked in Central Virginia Community College v. Katz. The Court held that state sovereign immunity was not implicated by the exercise of in rem jurisdiction by bankruptcy courts in voiding a preferential transfer to a state.

Another effective shield from liability for civil rights suits is the [personal] immunity from civil suit of government officials. This is not because of sovereign immunity, but rather the doctrines of qualified and absolute official immunity as demonstrated in Harlow v. Fitzgerald. The scope of official immunity generally does not extend to acts unrelated to the official’s governmental role, such as liability for breach of contract, or, famously, for sexual harassment. The distinction between immunity to civil suit and immunity from criminal prosecution is particularly relevant in all such contexts.

Further reading

Michael J. Kelly, Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & The Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005).

See also

• Command responsibility
• Impeachment
• Diplomatic immunity
• Other forms of immunity

•  • [ e] Legal doctrines

Attractive nuisance Calculus of negligence Caveat emptor Caveat venditor Contra proferentem Duty of care Eggshell skull Fair use First-sale doctrine Good-faith exception Living tree doctrine Ignorantia juris non excusat Implied powers Implied terms of a contract Odious debt Plain view doctrine Proximate cause Res ipsa loquitur Sovereign immunity Stare decisis or Precedence rule Standard of care Unclean hands Vicarious liability