Sovereign Immunity (Update)

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The doctrine of sovereign immunity holds that a sovereign cannot be sued without its consent. Although the Constitution nowhere refers to the sovereign immunity either of the states or the United States, the doctrine is well-entrenched for both levels of government and has even been applied to territories. For states sued in federal courts, the doctrine of sovereign immunity is treated as embodied in the eleventh amendment, even though by terms that section speaks only of the scope of the judicial power. The Court has recently held, in Alden v. Maine (1999), that a state's constitutional immunity from suit exists not only in federal courts but also in the state's own courts. The sovereign immunity of the federal government has been established by judicial inference. The two lines of cases (state and federal sovereign immunity) frequently borrow from one another, particularly on the question of whether a suit against a governmental officer should be treated as one against the sovereign.

Who is a "sovereign," what counts as consent, and whether the immunity applies in the courts of another sovereign, are issues that affect how broadly the doctrine prevents judicial review of (and remedies for) government wrongdoing. In the last century, the federal government has by legislation waived its sovereign immunity for contract and takings claims, for some common law tort claims against the United States, and for most forms of injunctive or other nonmonetary relief against federal employees. Although a statutory clause giving an agency authority to "sue and be sued" is generally treated as waiving immunity, the Supreme Court has generally applied the "consent" requirement with rigor, construing claimed waivers of immunity narrowly. For example, interest on damage awards against the United States is not permitted unless explicitly authorized. Eleventh Amendment immunity for states sued in federal courts has also been broadly interpreted.

Apart from statutory waivers of immunity, a key to determining the effect of sovereign immunity is the availability or unavailability of other remedies to uphold the rule of law and provide individual justice. Generally a simple injunction against a government officer to refrain from future action that violates federal law will not be treated as barred by sovereign immunity. Sometimes referred to as the ex parte young principle, the availability of such relief against government officers mitigates the effects of sovereign immunity, and is of fundamental importance. An illustration of the importance of this principle is suggested by cases such as youngstown sheet & tube v. sawyer (1952), in which the Court, without referring to sovereign immunity, upheld a court order enjoining the U.S. Secretary of Commerce from carrying out the President's order to seize steel plants. Claims against officers that could result in government liability for accrued damages in contract or tort, and claims involving title to property held by the sovereign, are more likely to result in rulings that the suits are "really" against the sovereign. Sovereign immunity is less likely to bar an action against an officer for a trespassory wrong, and does not bar either damage awards against officers individually or defenses in a government enforcement action.

Although some have attempted to ground sovereign immunity doctrine in separation of powers concerns, it is as much history as logic that explains differences between those claims against officers that do not require the sovereign's consent and those that are treated as actions against the government requiring consent. In united states v. lee (1880), the Court, in a 5–4 decision, upheld federal jurisdiction over a suit against federal officials to recover land wrongly held by U.S. Army officers. The majority questioned whether the sovereign immunity doctrine could be justified in the United States, given its origin with the personal immunity of the hereditary monarch; nonetheless, the Court did not regard itself as free simply to disavow the doctrine. The Lee dissenters invoked sovereign immunity as an "axio[m] of public law," not limited to monarchies, and made separation of powers arguments against permitting courts to enter judgments against officers that might interfere with important government functions by, for example, dispossessing the U.S. Army from occupying forts necessary for defense. While Lee permitted the suit against the officers notwithstanding the immunity of the United States, a similar effort was denied in Malone v. Bowdoin (1962), which followed the more restrictive view set forth in Larson v. Domestic & Foreign Commerce (1949) concerning when the government's consent is required for suit brought nominally against an officer. While a 1976 statute authorizing suits for nonmonetary relief against federal officers diminished the importance of Larson for review of federal action, Larson has continued to influence the scope of states' immunities in federal courts.

marbury v. madison (1803), which contemplated that mandamus could issue to the U.S. Secretary of State, established for U.S. constitutionalism the importance of the principle that government itself be constrained by law, and further established a presumption that for every right, there be a remedy. Notwithstanding its long roots in U.S. constitutional cases (as well as in state law), sovereign immunity is in tension with both of these aspirations.

Vicki C. Jackson


Currie, David P. 1984 State Sovereign Immunity and Suits Against Government Officers. Supreme Court Review 1984: 149–168.

Engdahl, David E. 1972 Immunity and Accountability for Positive Government Wrongs. University of Colorado Law Review 44:1–79.

Jaffe, Louis L. 1963 Suits Against Governments and Officers: Sovereign Immunity. Harvard Law Review 77:1–39.

Pfander, James 1997 Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government. Northwestern University Law Review 91:899–1014.

Woolhandler, Ann 1997 The Common Law Origins of Constitutionally Compelled Remedies. Yale Law Journal 107:77–164.

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Sovereign Immunity (Update)

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