Double Immunity

Article excerpt

INTRODUCTION
I.   DOUBLE IMMUNITY
     A. The First Layer of Sovereign Immunity: Immunity from Suit
          1. Origins of the first layer of sovereign immunity
             a. Origins of federal immunity from suit
             b. Origins of state immunity from suit
          2. Applying the first layer." a jurisdictional defense
               subject to waiver by clear statement
     B. The Second Layer of Sovereign Immunity: Immunity from Monetary
          Judgment
          1. The Court's early approach to monetary claims against a
               sovereign
          2. The Court's new double immunity approach to monetary
               claims against a sovereign in Nordic Village, Lane,
               and Sossamon
          3. Other applications of double immunity
II.  THE UNCERTAIN ORIGINS OF THE SECOND LAYER OF SOVEREIGN IMMUNITY
     A. Constitutional Underpinnings for the Second Layer of Immunity?
     B. Common Law Underpinnings for the Second Layer of Immunity?
     C. Double Immunity: A Judge-Made Rule
         1. The requirement of express statutory authorization
              for atypical monetary awards
         2. The strict construction rule for interpreting the
              scope of a waiver
III. THE ADVERSE IMPACTS OF SOVEREIGN DOUBLE IMMUNITY
     A. Policy Arguments in Support of Double Immunity
     B. Policy Arguments Against Double Immunity
         1. Harm to private plaintiffs
         2. Harm to legislative supremacy
         3. Harm to the sovereign itself
IV.  A BETTER RULE: REVERSING THE PRESUMPTION IN THE SECOND LAYER OF
       IMMUNITY
CONCLUSION

The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced.

--Justice Benjamin Cardozo (1)

INTRODUCTION

When followers of the Supreme Court discuss the most prominent cases of the 2010 Term, the Court's relatively obscure decision in Sossamon v. Texas is rarely mentioned. (2) At first glance, the omission is perhaps for good reason. The case involved an unexceptional (albeit serious) factual scenario: a prisoner who claimed that the state had prevented him from worshipping in a state prison chapel in violation of a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). (3) The actual legal question presented in Sossamon was, moreover, a narrow matter of statutory interpretation: "[W]hether the States, by accepting federal funds, consent to waive their sovereign immunity to suits for money damages under [RLUIPA]." (4) And the answer may have seemed straightforward based on the text of the law alone, since the statute expressly provides that "[a] person may assert a violation of [RLUIPA] ... in a judicial proceeding and obtain appropriate relief against a government." (5)

So what, then, was the fuss all about? In the aftermath of a series of controversial Rehnquist Court decisions limiting Congress's power to abrogate state sovereign immunity using its Commerce Clause and other various Article I powers, (6) the fuss might have concerned whether Congress has the power to circumvent those limits by purchasing a waiver of the very state immunity that it could not abrogate. (7) Many had reacted to the Rehnquist-era decisions limiting congressional power to abrogate state immunity with alarm--Justice Stevens, for example, famously complained that sovereign immunity had become "a mindless dragon that indiscriminately chews gaping holes in federal statutes." (8) Allowing Congress to end-run those limits through its use of the Spending Clause power, then, would seem no small thing. But the Court in Sossamon found little difficulty on that point, confirming that a Spending Clause-induced waiver of state sovereign immunity is indeed permissible. (9)

The entire case turned instead on a particular rule: the requirement that, in order to sue a sovereign defendant for monetary damages, a private plaintiff must demonstrate not only that the sovereign has waived its immunity from suit by consenting to the action in the first instance, but also that the sovereign has unequivocally waived its immunity from a damages remedy in that suit. …