Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence

By Jackson, Vicki C. | The George Washington International Law Review, January 1, 2003 | Go to article overview
Save to active project

Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence


Jackson, Vicki C., The George Washington International Law Review


Sovereign immunity has become a place of contest between important values of constitutionalism. On the one hand, constitutionalism entails a commitment that government should be limited by law and accountable under law for the protection of fundamental rights; if the "essence of civil liberty" is that the law provide remedies for violations of rights, immunizing government from ordinary remedies is in considerable tension with all but the most formalist understandings of law and rights.1 On the other hand, a commitment to democratic decisionmaking may underlie judicial hesitation about applying the ordinary law of remedies to afford access to the public fisc to satisfy private claims,2 in the absence of clear legislative authorization. These competing and important values can and should be worked out without reliance on the abstract or dignitary notions of sovereignty implicit in the very phrase "sovereign immunity."

As I suggest below in Part I, federal sovereign immunity was a doctrine of limited effect in the early years of this republic and allowed for a number of remedies for governmental wrongdoing. Moreover, the constitutional provenance of federal "sovereign immunity" is obscure, and was a matter of genuine uncertainty in early years. Over time the doctrine developed, drawing support from some aspects of constitutional architecture as well as from unreasoning and mistaken extensions of other versions of "sovereign immunity." Among the strands of constitutional structure behind federal "sovereign immunity" are Congress' powers over appropriations and the jurisdiction of the federal courts, powers that do not necessarily require but may help explain the early attraction of sovereign immunity as a doctrine.

As described in Part II, the "sovereign immunity" doctrine has been dynamic, not static, as judges make choices about how broadly or narrowly to characterize its reach in response to legislation by Congress. In the inter-branch dynamic, both Congress and the Court have refrained at critical junctures from pressing constitutional limits, a restraint that has created an arguably beneficial ambiguity about the relationship of the judicial power to the legislative power in resolving claims against the government. Yet given the adverse effects of sovereign immunity on courts' capacities to provide individual justice, it is past time for that dynamic to move back towards more restrictive understandings of the doctrine's scope.

In Part III, I consider federal sovereign immunity's relation to aspects of the idea of judicial independence embodied in Article III of the United States Constitution. Doctrines that article III courts will not enter ineffective or advisory judgments, nor judgments subject to legislative or executive revision or direction, coalesce in cases involving claims against the government, in ways that suggest that sovereign immunity may have been thought to preserve an aura of judicial independence. In light of the competing constitutional norms at stake and the well-established independence of the federal courts today, I end by urging re-interpretation of federal sovereign immunity doctrines so as to close rather than widen remedial gaps in the law.

I. SOVEREIGN IMMUNITY, ITS MEANING, HISTORY AND SCOPE

Sovereign immunity's meaning is contested and contestable.3 If we assume that it is a rule that the government cannot be sued without its consent, it is a rule that-unless consent is presumed from the Constitution-stands in tension with Marbury v. Madison4's assertion that the "essence of civil liberty" is that the law provide a remedy for the violations of rights. Judicial remedies not only protect individual rights but can function as an important mechanism of government accountability. To the extent that sovereign immunity protects the government from being held to account through generally available judicial remedies, it is in considerable tension with these rule-of-law "essences.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?