Federal Sovereign Immunity, Morality in Government, and Institutional Suitability

I’ve been much intrigued by Patrick Brennan’s discussion of the concept of sovereign immunity and the consistency of such a doctrinal or jurisdictional limitation on governmental liability for legal wrongs with Catholic Social Teaching, as well as the responsive posts. It is encouraging to learn that such questions are being openly asked and addressed in legal education. I profess no great expertise on state sovereign immunity and the Eleventh Amendment, so nothing I set forth below is intended to respond directly to the questions Professor Brennan raises in that context. However, I do write regularly on its jurisprudential cousin, federal sovereign immunity. Allow me to offer some thoughts grounded in my experience with that field of law.

I submit that federal sovereign immunity need not, and indeed should not, be understood as a mere carry-over of the archaic concept that “The King Can Do No Wrong” nor as a callous means of shielding the government from being held responsible for its wrongdoing. Rather, federal sovereign immunity may be appreciated as but a species of separation of powers, underwhich the courts defer to the elected political branches of government to make the determination as to when the acts of the people collectively through their government ought to be the basis for payment of compensation and how such a legal action when merited should proceed.

To be sure, certain forms of governmental wrongdoing are so egregious or the harm that follows so unjustified that the legislative determination to lift the bar of immunity is not a difficult one, at least not morally difficult. But the decision about when to drop the curtain of sovereign immunity is not always a simple or non-controversial one, from a legal, political, or moral perspective. We allow the government to exercise powers and engage in actions that we would never delegate to individuals or private organizations, from extracting funds through taxation to prosecution of crimes to waging of war. In a meaningful sense, whenever government as the agent of our collective polity takes an action, someone is harmed in some way, whether it be by deprivation of private resources through taxation, restrictions on property rights or private freedom through criminal rules or regulation, removal of or restrictions on choices directly or indirectly such as by subsidizing certain activities and thereby limiting other options, etc. Yet allowing those suffering the consequential harms that follow any exercise of governmental power to seek a judicial remedy does not necessarily follow as night follows day.

In addition, when federal government conduct involves exercise of policy-making powers, asking the courts to evaluate the wisdom of a policy choice in the guise of a tort suit may raise serious questions of separation of powers. For that reason, for example, claims under both the Federal Tort Claims Act and the Suits in Admiralty Act may not be pursued if the government was exercising a discretionary function. Interestingly, the FTCA contains an explicit discretionary function exception, while the courts have implied such an exception as constitutionally-mandated into the SIAA.

Moreover, in one of the growth areas of civil litigation against the federal government, plaintiffs in tort suits increasingly assert that the government’s negligence lay, not in any affirmative governmental conduct, but in the government’s failure to more effectively regulate the conduct of a private third-party (i.e., claims by injured employees alleging that OSHA negligently failed to inspect a workplace and discover the employer’s violation of safety standards, claims by consumers injured by drugs or products alleging that the government negligently licensed a manufacturer or failed to order a recall, etc.) When such a suit essentially alleges mis-government through its failure to uncover the negligence or wrongdoing of another, the government is shifted into the position of being an insurer, which then creates perverse disincentives to engage in safety regulation in the first place.

In sum, people of good faith and moral seriousness can differ on whether governmental liability in court is the appropriate answer to a particular problem, as opposed to adoption of alternative legislative (or even private) measures that may or may not provide monetary compensation and may or may not rely upon the courts for implementation.

Even when a waiver of sovereign immunity is most obviously appropriate (and thus the argument on moral grounds most unassailable), a host of other questions must be addressed, such as the appropriate forum, statutes of limitations, administrative processes for alternative dispute resolution, appropriate exceptions to protect sensitive policy areas, appropriate measures of damages (such as excluding the availability of punitive damages which make no sense if impressed against the taxpayers), etc. In terms of institutional competence, one might well conclude that the legislature is far superior to the judiciary in answering these questions.

Although I acknowledge that what follows is shameless self-promotion, I am pasting below a brief but pertinent excerpt from my forthcoming treatise (ALI-ABA) on “Litigation with the Federal Government” (This particular excerpt also may be found in a parallel and likewise forthcoming article titled “A Primer on the Doctrine of Federal Sovereign Immunity” slated for publication next spring in the Oklahoma Law Review). The current draft of the article may be found at this link.

“By looking at the concept of sovereign immunity and the circumstances under which the federal government has consented to suit against itself, we consider the legitimacy of governmental immunity in a democratic society and the proper role of courts in resolving policy issues raised in suits against the federal government. We also learn much about a system of government by examining when and how that government responds (or fails to respond) to injuries inflicted by its agents or activities upon its own citizens.

Professor Vicki C. Jackson, in her analysis of the principled or prudential reasons for judicial recognition of the limitation on suits against the federal government, describes sovereign immunity as “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. 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, in the absence of clear legislative authorization.
[Footnote 7: Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 GEO. WASH. INT’L. L. REV. 521 (2003).]

Professor Kenneth Culp Davis, who passed away recently, was one of the nation’s leading experts on administrative law—and a sharp critic of sovereign immunity. He characterized the concept as a medieval holdover from the English monarchy and said that the “strongest support for sovereign immunity is provided by that four-horse team so often encountered—historical accident, habit, a natural tendency to favor the familiar, and inertia.” [Footnote 8: Kenneth Culp Davis, Sovereign Immunity Must Go, 22 ADMIN. L. REV. 383, 383-402 (1970).] He contended that the doctrine of sovereign immunity is unnecessary as a “judicial tool,” because we may trust the courts to refrain from interfering in crucial governmental activities, such as the execution of foreign affairs and military policies, by limiting themselves to matters appropriate for judicial determination and within the competence of the judiciary. Writing more recently, and similarly questioning the historical and constitutional justifications for federal sovereign immunity, Professor Susan Randall contends that sovereign immunity should henceforth be viewed as “a prudential rather than a jurisdictional doctrine,” under which “courts attempt to balance the needs of the political branches to govern effectively with the rights of the citizenry to redress governmental violations of law.” [Footnote 9: Susan Randall, Sovereign Immunity and the Uses of History, 81 NEB. L. REV. 1, 6-7 (2002).]

In response, Dean Harold J. Krent contends that “[m]uch of sovereign immunity . . . derives not from the infallibility of the state but from a desire to maintain a proper balance among the branches of the federal government, and from a proper commitment to majoritarian rule.” [Footnote 10: Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 VAND. L. REV. 1529, 1529-33 (1992).] He explains that, by making the federal sovereign amenable to suit only when it has consented by statute, society entrusts Congress as the representative of the people with determining the appropriate circumstances under which public concerns should bow to private complaints. However, when government conduct becomes removed from policymaking, the arguments for sovereign immunity are at their weakest. Thus, when mundane government activity is involved, devoid of policy implications, we should expect legislative waivers readily to be adopted. Reserving the authority to waive sovereign immunity to Congress does not mean that government is left without a check upon its conduct. Rather, the check is a political one—the potential displeasure of the electorate.

At bottom, nearly everyone agrees that, because the federal government represents the whole community and thus often must act in ways that a private party cannot or should not, the government’s exposure to liability must be controlled. A single individual cannot be permitted in every instance to obtain judicial relief that sets aside the decisions of the community duly made through the elected branches of government. Accordingly, the real question underlying sovereign immunity is who gets to decide what those limitations should be. The disagreement between those who decry the very existence of sovereign immunity, and those who accept it as an essential starting point, may come down to asking “who do you trust.” Those who would abolish sovereign immunity outright trust the courts both to ensure a remedy and to refrain when it is imprudent for the judiciary to act. By contrast, those who defend the concept of sovereign immunity as a limitation on judicial inference of a cognizable cause of action against the government see this constraint as a reflection of trust in the political branches of government to determine the appropriate occasions for consenting to suit.”

Greg Sisk