II. THE UNCERTAIN ORIGINS OF THE SECOND LAYER OF SOVEREIGN IMMUNITY
The various objections one might raise against the Court's double immunity doctrine (141) and the seemingly unfair results it produces might be overcome in two ways. First, perhaps the double immunity rule derives from a sacrosanct source of law such that failure to abide by it would do violence to our constitutional system or the common law tradition. Alternatively, even if double immunity's existence is based purely on policy considerations, it may be the case that there are countervailing considerations militating in its favor. This Part addresses the first possibility; Part III addresses the second.
So just where does the second layer of sovereign immunity come from? If it can be maintained that the second layer is enshrined in the Constitution or deeply rooted in common law tradition, (142) arguably like the first layer of immunity, (143) then perhaps any negative downstream effects of the rule are just a consequence of the Framers' vision. If that is true, then attacks on the rule would face the tall burden of overcoming the Framers' intent. After considering the arguments that the Constitution or the common law require adherence to the double immunity doctrine, however, it becomes clear that the doctrine is actually little more than a judge-made rule--and a misguided one at that.
A. Constitutional Underpinnings for the Second Layer of Immunity?
The contention that the Constitution provides express grounding for the rule that a waiver of sovereign immunity must extend unequivocally both (1) to the suit itself and (2) to the availability of monetary relief in that suit fails flatly with regard to state sovereign immunity, and fares only slightly better with respect to federal immunity.
The problem with the constitutional argument for the second layer of immunity as applied to state defendants is that it runs headlong into the plain text of the Eleventh Amendment. The Amendment reads, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (144) The first thing to observe is that the Amendment focuses on prohibiting suits against the sovereign states, not on prohibiting particular kinds of remedies. The aim of the Eleventh Amendment is thus to guarantee the first layer of sovereign immunity to state defendants by barring suits without the states' consent because it is the suit itself that disparages the states' sovereign dignity. The form of relief sought (the second layer of immunity) is of no moment, (145) evidenced by the fact that suits in "law or equity" are both forbidden. The Supreme Court zeroed in on the Amendment's core concern for immunity from suit and not immunity from particular remedies in its 1887 decision In re Ayers, where it wrote, "The very object and purpose of the 11th Amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties." (146)
Moreover, by its very terms, once the first layer of immunity from suit is waived, the Amendment makes no distinction between suits for injunctive relief and suits for monetary relief: all relief in "law or equity" is denied to citizens absent a waiver of the state's sovereign immunity. Once a state consents to be sued, then, there is no reason to think that the consent should only extend to suits at law but not at equity. Put slightly differently, it would take a strained reading of the Eleventh Amendment to require a state to consent only once to suits at equity but twice for suits at law--yet this is precisely the reading that is needed to sustain the Court's double immunity principle as a constitutional rule vis-a-vis the states.
The constitutional claim for the second layer of federal sovereign immunity runs into a different kind of problem. Recall that, unlike state immunity, which is at least reflected in (if not totally encapsulated by) the Eleventh Amendment, there is no clear textual hook in the Constitution for federal sovereign immunity. (147) Paul Figley and Jay Tidmarsh have suggested the Appropriations Clause as one possible source, (148) which reads, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ...." (149) As Figley and Tidmarsh explain, the debates surrounding the Appropriations Clause at the Founding, along with the English experience regarding government finance, demonstrate that the Framers envisioned legislative control over the public purse--and not control by the executive or judiciary. (150) That point seems on strong footing, but the key question for sovereign immunity purposes is whether the Framers also intended "constitutionally commanded legislative control over disbursements from the purse" to entail a constitutional command precluding the judiciary from even hearing monetary claims by private plaintiffs alleging government wrongs. (151) The evidence is less clear on that question, though Figley and Tidmarsh suggest that because the power to appropriate money was intended to lie exclusively in the hands of Congress, it follows as a "small, and logical, step" that the Framers also intended Congress (and not the courts) to have the sole power to adjudicate private lawsuits for money. (152)
Regardless of whether the Appropriations Clause is properly viewed as a constitutional source for the first layer of sovereign immunity, however, it could be argued that it contains precisely the kind of textual language one might desire to support the second principle of sovereign immunity, the immunity from monetary judgments absent express consent. "No money shall be drawn from the Treasury," including money for the purpose of paying a court-ordered monetary judgment, the argument could run, "but in Consequence of Appropriations made by law." (153) And where a statute only waives federal immunity from suit generally without mentioning monetary awards, perhaps there has been no appropriation "made by law" for such monetary relief--a failure to satisfy the clear statement requirement of the second layer of immunity.
The argument has a neat logic to it, but the problem is that it assumes the critical question: where Congress consents to be sued for a particular category of actions, is it proper to interpret that waiver as also including Congress's inherent consent to remedy the harms it has caused? That is, Congress's very act of waiving its sovereign immunity from suit could constitute the necessary "appropriation made by law" to pay a monetary award where one is owed. In order for that not to be the case, and in order for the Appropriations Clause to create an additional layer of immunity beyond the traditional immunity from suit, would require an assumption that Congress's consent to be sued represents a consent to the jurisdiction of a court that is separate (and separable to begin with) from its consent to actually be held liable for wrongdoing. But as I show below in the discussion of the common law view of sovereign immunity, (154) that assumption is contradicted by the prevailing view at common law that, in the eyes of a sovereign, "want of right and want of remedy are reciprocal." (155) In other words, the sovereign's acknowledgment that it should be amenable to judicial process for its wrongdoing necessarily includes the recognition that it will redress the harms it has caused--there is simply no need for the sovereign to affirmatively say both.
The Appropriations Clause account for the second layer of federal sovereign immunity fails for another reason: it proves too much. If the Clause is truly the source of federal sovereign immunity, it follows that claims for damages against the federal government may be pursued when the money being sought has been appropriated by law. Yet one of the most common classes of lawsuits against the federal government involves contract claims wherein private plaintiffs allege that the federal government has failed to make good on its end of a contractual bargain--claims that, in essence, seek the recovery of money that has already been appropriated by law when Congress authorized the contract in the first instance. (156) If the Appropriations Clause argument for a second layer of immunity is taken seriously, then no additional waiver of immunity should be required from the monetary judgments in such contract claims.
But Congress and the Supreme Court have rejected this approach. Congress did so in passing the Tucker Act, which waives the federal government's sovereign immunity in breach of contract claims, (157) and the Court has duly noted the necessary effect of the Tucker Act's waiver in a wide range of cases. (158) That waiver, though, would be redundant if Figley and Tidmarsh are correct about the Appropriations Clause, at least to the extent that plaintiffs in breach of contract claims are suing to compel the federal government to make good on payments that have already been appropriated per an approved federal contract. (159)
In the absence of express language that justifies the double immunity rule, perhaps support for the rule can be drawn from structural principles embodied in, if not expressly stated by, the Constitution. (160) One such possibility, although the Supreme Court certainly did not articulate this rationale in Nordic Village, Lane, or Sossamon, is that the rule represents a self-imposed restraint by the judiciary under separation of powers principles. The theory would run that requiring an express statement waiving both immunity from suit and immunity from damages is necessary to ensure that the judicial branch does not create remedies that were not envisioned by the legislative branch even though the suits themselves were. Yet to accept this explanation would be to accept a dangerously narrow view of the role of courts. For if courts that plainly have jurisdiction to resolve the merits of a dispute are deemed powerless to confer even the most ordinary of monetary remedies without prior legislative authorization, what other powers traditionally reserved to the courts may be cast by the wayside in the abstract pursuit of "separation of powers"?
Ultimately, the proof is in the pudding: the Court has never cited the Eleventh Amendment, the Appropriations Clause, separation of powers, or any other constitutional text or principle to justify the second layer of sovereign immunity. If double immunity is to be defended on the basis of some source, that source must be something other than the Constitution.
B. Common Law Underpinnings for the Second Layer of Immunity?
The Court has acknowledged the incompleteness of the argument that constitutional text alone serves as the wellspring of the traditional first principle of federal and state sovereign immunity from suit. Instead, both state and federal immunity appear to be rooted in a tradition that predates the Constitution. As Justice Kennedy observed with respect to state sovereign immunity, "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...." (161) The Court remarked similarly that federal sovereign immunity may "rest on the theory that the United States is deemed the institutional descendant of the Crown, enjoying its immunity but not its historic prerogatives." (162) Thus, if the first principle of sovereign immunity derives ultimately from common law tradition that existed prior to the Founding, the question should be posed whether those same common law traditions warrant the Court's recent extension of the immunity to include an additional layer of protection against monetary judgments.
An analysis of the evidence concerning sovereign immunity at common law reveals, however, that the common law tradition is inconsistent with the idea of a latent secondary protection against monetary relief for sovereigns who have already consented to be sued. For starters, the notion that the first principle of immunity from suit is wholly supported by the common law is itself suspect. The Court recognized as much as early as 1880, where it considered the English common law maxim that the "king can do no wrong," and rejected it, writing, "[w]e do not understand that ... the English maxim has an existence in this country." (163) As the Court reiterated nearly a century later, in Nevada v. Hall, the assertion that the king could do no wrong was simply a "fiction" that "was rejected by the colonists when they declared their independence from the Crown." (164)
Yet even if the historical-traditional claim to the first layer of sovereign immunity is to be taken at face value, there is additional evidence that the second layer immunity from monetary judgments would have been anathema at common law. After all, Blackstone himself wrote that once the sovereign recognizes its own wrongdoing and gives its consent to be sued, that consent inexorably extends to a remedy for the wrong: "[A]s [the law] presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues as of course in the king's own name, his orders to his judges to do justice to the party aggrieved." (165) Indeed, later English authorities on the common law expanded on Blackstone's Commentaries to emphasize that relief against the sovereign--specifically in the form of monetary damages--was essentially a matter of right by virtue of an elaborate system of private petitions of right to the King. (160) One update of the Commentaries described that petition system as follows:
The prayer of this petition, which is really in the nature of an action against the sovereign for the recovery of debts, chattels real, or personal, and unliquidated damages, is grantable ex debito justitiae [as a matter of right, as opposed to ex gratia, as a matter of grace]. (167)
English case law from the early eighteenth century confirms the availability of monetary relief against the Crown regardless of whether the sovereign gave its express consent. In The Case of the Bankers in the Court of Exchequer, creditors of the Crown sued the king without his approval to enforce payment of royal annuities. (168) The House of Lords determined that a monetary judgment should lie even without the King's consent. (169) Crucially, Lord Chief Justice Holt pronounced, "[w]e are all agreed that they have a right; and if so, then they must have some remedy to come at it too." (170) In other words, right and remedy were coupled; once the sovereign was held amenable to suit, the remedy followed.
The fact that common law tradition was diametrically opposed to the Court's new second layer of sovereign immunity also makes sense as a simple structural matter. Up until the Judicature Acts of the 1870s, courts of equity and courts of law were separate at common law. (171) Thus, prior to this point, when the King Consented to be sued at law, (172) it would have made no sense to require the King to give an additional express consent to monetary relief since such relief was the only form of relief available at law. (173) The sovereign's consent to be sued, in other words, was itself consent to a monetary damages remedy given the dual court system at common law.
At bottom, there is little support for the double immunity doctrine in either the common law or the American Constitution. The reality is that the historic practice of sovereign immunity was concerned not with shielding the sovereign from having to redress the injuries it caused, but rather with defining a particular process through which private citizens could obtain their rightful remedy. (174) And once the proper process was followed, the sovereign at common law could be held liable for monetary remedies as a matter of course, without its express consent.
C. Double Immunity: A Judge-Made Rule
With the Constitution and common law tradition off the table as a proper source for the second layer of sovereign immunity, the reality becomes clear: the requirement of an express waiver from monetary remedies is little more than a judge-made rule. To be sure, commentators no less authoritative than Justice Stevens have lamented that even the first principle of sovereign immunity is a judge-made rule except as is actually reflected in the Eleventh Amendment, (175) but the traditional immunity of the states and the federal government from suit is at least firmly settled by more than a century's worth of decisions. (176)
The historic acceptance of the judge-shaped (if not altogether judge-made) first layer of sovereign immunity presents an interesting question: why is the Court's new second layer of immunity, so to speak, so late to the party? That is, in the absence of any new and groundbreaking understandings of the common law approach to sovereign immunity and without any changes to the Constitution itself, how and why did the Court come to create the second layer of immunity only in the early 1990s when it had for so long already recognized the first layer?
An analysis of the Court's own rationales in Nordic Village and Lane, along with the cases cited in the two decisions, is instructive, as it reveals that the double immunity rule is the result of the Court's mistaken extension of two otherwise sensible and longstanding lines of jurisprudence. The first line involves cases where the Court has correctly required an express statutory authorization for atypical forms of monetary relief against the government (including awards of attorneys' fees, costs, and interest), not because of sovereign immunity per se, but because such forms of relief are not traditionally understood to be available without the parties' agreement even in civil litigation between private, nonsovereign parties. (177) Compensatory damages, by contrast, …