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Sovereign immunity

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Overview Edit

Sovereign immunity is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, the king (or queen) can do no wrong.

In many cases, governments have waived this immunity to allow for suits; in some cases, an individual may technically appear as defendant on the state's behalf.

Federal sovereign immunity Edit

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party.

The Federal Tort Claims Act and the Tucker Act are not as broad waivers of sovereign immunity as they might appear, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. §1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.

State sovereign immunity Edit

In Hans v. Louisiana,[1] the U.S. Supreme Court held that the Eleventh Amendment re-affirms that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent. In later cases, the Supreme Court strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak,[2] the Court explained that:

we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention.

In Alden v. Maine,[3] the Court explained that while it has

sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity[,]" [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, 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 (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

Writing for the Court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the Court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."

However, a "consequence of [the] Court's recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law."[4] Thus, cities and municipalities lack sovereign immunity,[5] and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'"[6]

References Edit

  1. 134 U.S. 1 (1890)(full-text).
  2. 501 U.S. 775 (1991)(full-text).
  3. 527 U.S. 706 (1999)(full-text).
  4. Northern Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189 (2006) (full-text) (emphasis added).
  5. Jinks v. Richland County, S.C., 538 U.S. 456 (2003) (full-text).
  6. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979) (full-text).


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