Against Sovereign Immunity
Chemerinsky, Erwin, Stanford Law Review
I. INTRODUCTION: OF COURSE, THE GOVERNMENT CAN DO WRONG
Sovereign immunity is an anachronistic relic and the entire doctrine should be eliminated from American law. The principle of sovereign immunity is derived from English law, which assumed that "the King can do no wrong."(1) Since the time of Edward the First, the Crown of England has not been suable unless it has specifically consented to suit.(2) Throughout American history, United States courts have applied this principle, although they often have admitted that its justification in this country is unclear.(3)
A doctrine derived from the premise that "the King can do no wrong" deserves no place in American law. The United States was founded on a rejection of a monarchy and of royal prerogatives.(4) American government is based on the fundamental recognition that the government and government officials can do wrong and must be held accountable. Sovereign immunity undermines that basic notion.
The doctrine is inconsistent with the United States Constitution. Nowhere does the document mention or even imply that governments have complete immunity to suit. Sovereign immunity is a doctrine based on a common law principle borrowed from the English common law. However, Article VI of the Constitution states that the Constitution and laws made pursuant to them are the supreme law, and, as such, it should prevail over government claims of sovereign immunity.(5) Yet, sovereign immunity, a common law doctrine, trumps even the Constitution and bars suits for relief against government entities in violation of the Constitution and federal laws.
Sovereign immunity is inconsistent with a central maxim of American government: no one, not even the government, is above the law. The effect of sovereign immunity is to place the government above the law and to ensure that some individuals who have suffered egregious harms will be unable to receive redress for their injuries.(6) The judicial role of enforcing and upholding the Constitution is rendered illusory when the government has complete immunity to suit. Moreover, sovereign immunity undermines the basic principle, announced in Marbury v. Madison, that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."(7)
All of this seems so clear and obvious. Yet sovereign immunity is not fading from American jurisprudence; quite the contrary, the Supreme Court is dramatically expanding its scope. In Alden v. Maine, the Court held that sovereign immunity broadly protects state governments from being sued in state court without their consent, even to enforce federal laws.(8) In Seminole Tribe v. Florida, the Court greatly limited the ability of Congress to authorize suits against state governments and to override sovereign immunity.(9) The Court applied this principle within the past couple of years to bar suits against states for patent infringement(10) and for age discrimination.(11) Although all of these cases involve suits against state governments, the Court has indicated no willingness or likelihood of relaxing the sovereign immunity of the United States government.
In this article, I argue that this entire body of law is simply wrong and that the doctrine of sovereign immunity should be banished from American law. No government--federal, state, or local--should be accorded sovereign immunity in any court. Part II considers the constitutional status of sovereign immunity and makes two arguments: first, that sovereign immunity is not a doctrine based in the United States Constitution; and second, that sovereign immunity should be regarded as inconsistent with the Constitution. Part III then considers the policy justifications for sovereign immunity and argues that it is an undesirable doctrine that undermines both government accountability and compensation for injured individuals. In Part III, I also consider the primary justifications for sovereign immunity--protecting government treasuries, separation of powers, the lack of authority for suits against government entities, the existence of adequate alternatives to suits against the government, and tradition--and argue that none of these justify the doctrine. …