Sovereign immunity in the United States

Based on Wikipedia: Sovereign immunity in the United States

Here's a peculiar fact about American democracy: you generally cannot sue your own government unless it gives you permission first. The entity that writes the laws, enforces the laws, and interprets the laws has decided—through those very same laws—that it sits largely beyond your legal reach. This principle, called sovereign immunity, is one of the strangest inheritances America received from the British monarchy it fought so hard to escape.

The King Can Do No Wrong

The Latin phrase is rex non potest peccare—"the king can do no wrong." In medieval England, this wasn't merely a legal technicality. It reflected a theological belief that monarchs derived their authority from God, and therefore couldn't commit legal wrongs against their own subjects. The king was the law. How could the law violate itself?

When American colonists declared independence, they explicitly rejected monarchy and divine right. The Declaration of Independence lists King George III's offenses in excruciating detail. And yet, when the dust settled and the Constitution was written, the new nation quietly kept this monarchical principle. The founders never mentioned sovereign immunity in the Constitution itself—they simply assumed it would continue.

Why would revolutionaries who fought a war against royal tyranny preserve the legal fiction that their new government was above the law?

The practical answer is surprisingly mundane. Courts derive their power from the government. The government creates courts, funds them, and enforces their decisions. If a court ordered the government to do something against its will, who exactly would enforce that order? The government would have to compel itself. It's a logical puzzle with no clean solution, so the founders essentially sidestepped it by inheriting the English approach: the government can be sued only when it agrees to be sued.

How Immunity Actually Works

Sovereign immunity in America comes in two flavors, and understanding the difference matters enormously if you ever find yourself wronged by a government actor.

Absolute immunity is exactly what it sounds like—total, complete protection from lawsuits. It doesn't matter if the person acted maliciously, incompetently, or even criminally. If absolute immunity applies, you cannot sue them for that particular action. Period.

This sounds outrageous until you consider who gets it and why. Legislators enjoy absolute immunity for their votes, speeches, and legislative activities. A senator could stand on the floor of Congress and falsely accuse you of being a serial killer, and you couldn't sue for defamation. The reasoning? If legislators could be sued for their official acts, they'd be paralyzed by fear of litigation. Every controversial vote would trigger lawsuits from angry constituents. The business of lawmaking would grind to a halt.

Judges get similar protection for judicial acts. Imagine if every defendant who lost a case could turn around and sue the judge. Courts would drown in meta-litigation, with judges spending more time defending their decisions than making them.

Qualified immunity is more limited. Government officials receive protection from lawsuits only under specific conditions spelled out in statutes or case law. Police officers, for instance, have qualified immunity—but they can lose that protection if they violate "clearly established" constitutional rights. The trouble is defining what counts as "clearly established," a question that has generated enormous controversy and countless court decisions.

The Federal Government's Shield

The United States Supreme Court put it bluntly in Price v. United States: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto."

An axiom. Not a debatable proposition, but a foundational assumption. The federal government sits immune from your lawsuit unless it specifically grants you permission to sue.

Now, the government has granted such permission in certain circumstances. The two main doors through the immunity wall are the Federal Tort Claims Act and the Tucker Act.

The Federal Tort Claims Act, passed in 1946, allows you to sue the federal government when a federal employee commits a wrongful act that causes damage. If a postal truck runs over your mailbox, you have recourse. If a military doctor commits malpractice, you can seek compensation. Before this law, victims of federal negligence had only one option: convince Congress to pass a special bill just for their case—a process called a private bill—which was cumbersome, slow, and available only to those with political connections.

The Tucker Act opens the door for contract disputes. If the federal government signs a contract with you and then breaks it, you can sue. This makes sense from a practical standpoint—the government needs to be able to enter contracts, and nobody would contract with an entity that could breach agreements with impunity.

But don't mistake these laws for broad access to the courts. Both come riddled with exceptions, limitations, and procedural hurdles that can trip up even sophisticated plaintiffs. Certain types of claims are excluded entirely. Damages are often capped. Specific courts handle specific claims. The government granted permission to be sued, but it wrote that permission narrowly and defended it aggressively.

States and the Eleventh Amendment Mystery

The story of state sovereign immunity begins with a lawsuit and a constitutional crisis.

In 1793, the Supreme Court decided Chisholm v. Georgia. A South Carolina man named Alexander Chisholm tried to sue Georgia in federal court to recover debts the state owed to a deceased merchant. Georgia refused to show up, arguing that as a sovereign state, it couldn't be dragged into court against its will. The Supreme Court disagreed. Article III of the Constitution allowed federal courts to hear cases "between a State and Citizens of another State," and the Court read that text literally.

States were horrified. The specter of citizens from other states hauling state governments into federal court—potentially forcing states to pay debts they'd accumulated during the Revolutionary War—triggered immediate backlash. Within two years, the Eleventh Amendment was ratified, stripping federal courts of jurisdiction over lawsuits "against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

But here's where it gets strange.

Read the Eleventh Amendment carefully. It only mentions suits by citizens of other states or foreign subjects. What about a state's own citizens suing it? The text says nothing about that. Yet in Hans v. Louisiana, decided nearly a century later in 1890, the Supreme Court held that states possess sovereign immunity against their own citizens too. The Court essentially said the Eleventh Amendment confirmed a broader principle of state sovereignty that existed before and beyond the amendment's specific text.

Justice Anthony Kennedy, writing for the Court in the 1999 case Alden v. Maine, made this explicit. He called the phrase "Eleventh Amendment immunity" a "convenient shorthand but something of a misnomer." The states' immunity, he wrote, "neither derives from nor is limited by the terms of the Eleventh Amendment." It's a "fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution."

In other words, state sovereign immunity doesn't come from the Constitution—it predates the Constitution. The states brought their immunity with them when they joined the union, and they kept it.

The Boundaries of State Immunity

Not everything gets the protection of state sovereignty. The courts have drawn careful lines around which entities count as "the state" and which don't.

Cities and municipalities? No sovereign immunity. The Supreme Court decided this in Lincoln County v. Luning back in 1890. Counties generally don't have it either, even though they exercise government power. The reasoning traces to nineteenth-century legal thinking that viewed municipal corporations as more like private corporations than state governments. They were created by states, but they weren't the states themselves.

This distinction matters enormously in practice. If a pothole on a state highway destroys your car, suing the state is an uphill battle through whatever limited claims process the state has created. If that same pothole is on a county road, you might have more direct access to the courts.

Tribal nations occupy their own unique category. The federal government recognizes Native American tribes as "domestic dependent nations"—a phrase that captures their ambiguous status, simultaneously sovereign and subordinate. Tribes generally enjoy immunity from suit in federal, state, and tribal courts unless they consent to be sued or Congress specifically strips that immunity away. Individual tribal members don't share this protection; they can be sued like anyone else. But the tribes themselves, as governmental entities, carry their own version of sovereign immunity.

When States Sue Each Other

For decades, a peculiar legal question lingered: could one state sue another state in the second state's own courts?

In 1977, the Supreme Court said yes. Nevada v. Hall involved a California resident injured in an accident with a Nevada state vehicle. He sued Nevada in California courts, and California let him. The Supreme Court ruled that the Constitution didn't forbid this—states weren't constitutionally immune from suits in other states' courts.

This created an odd asymmetry. A citizen couldn't sue their own state in federal court, but they might be able to sue a different state in their home state's court, depending on whether that home state chose to recognize the other state's immunity claim.

The arrangement lasted over forty years. Then, in 2019, the Supreme Court overturned Nevada v. Hall entirely. Franchise Tax Board of California v. Hyatt—the culmination of a long-running dispute between a Nevada resident and California's tax authority—held that states do enjoy constitutional immunity from lawsuits in other states. The Court essentially decided that its 1977 ruling had been wrong all along.

The Constitutional Exception

There's one place where sovereign immunity must yield: the Constitution itself.

This principle was articulated clearly by the Florida Supreme Court in Department of Revenue v. Kuhnlein. Florida's tax department tried to use sovereign immunity to block a lawsuit alleging that a tax violated the Constitution's Commerce Clause. The Court rejected that argument in stark terms: "Sovereign immunity does not exempt the State from a challenge based on violation of the federal or state constitutions, because any other rule self-evidently would make constitutional law subservient to the State's will."

Think about what's at stake here. If states could hide behind immunity whenever their actions violated the Constitution, the Constitution would mean nothing. States could infringe on free speech, deny due process, discriminate based on race—and citizens would have no remedy. The fundamental charter of American government would become merely advisory.

So the courts drew this line: immunity protects states from ordinary lawsuits, but not from constitutional challenges. When you claim the state violated the Constitution, immunity cannot block your day in court.

Foreign Governments and the FSIA

The rules change again when foreign governments enter the picture.

The Foreign Sovereign Immunities Act, passed in 1976, creates a comprehensive framework for when and how foreign nations can be sued in American courts. Before this law, courts would ask the State Department whether a particular foreign government should receive immunity—a process that mixed legal questions with diplomatic concerns in unpredictable ways.

The Foreign Sovereign Immunities Act aims for predictability. It applies to foreign nations, their political subdivisions, their agencies, and their state-owned companies. The basic rule is immunity, but with important exceptions. Foreign governments can be sued for certain commercial activities conducted in the United States. They can be sued for tortious acts committed in the United States. Specific procedures govern how to serve legal papers on foreign governments and how to enforce judgments against them.

In international law, this concept is called state immunity—the principle that one sovereign nation shouldn't sit in judgment over another. The Foreign Sovereign Immunities Act represents America's answer to how this principle works in practice.

The Price of Immunity

Sovereign immunity isn't merely an abstract legal doctrine. It has concrete consequences for real people.

Consider government contractors. Under the doctrine of derivative sovereign immunity, companies that work for the government can sometimes shield themselves from lawsuits by borrowing the government's immunity. A defense contractor building military equipment might not be liable for design defects if they built exactly what the government specified. The immunity flows from the sovereign down to those acting on its behalf.

Or consider the procedural maze facing anyone who wants to sue a state. Most states have passed their own tort claims acts—laws that waive immunity for certain types of lawsuits. But these laws typically impose strict conditions. You might have to file your claim within a shortened deadline. You might face caps on how much you can recover. Certain types of damages, like punitive damages, might be off the table entirely. You might have to pursue your claim in a specialized court rather than the regular court system.

These procedural requirements exist partly to protect government treasuries and partly to give agencies fair notice of claims against them. But they also mean that many legitimate claims die not because they lack merit, but because the victim missed a filing deadline or used the wrong form.

California's Partial Retreat

In 1961, the California Supreme Court did something remarkable. In Muskopf v. Corning Hospital District, the court declared that "total governmental immunity does not exist" in California and would no longer protect state and local entities from liability for their wrongful acts.

This didn't eliminate sovereign immunity entirely—the legislature quickly passed the California Government Claims Act to establish a framework for suing the state. But it marked a significant retreat from the doctrine's absolute form. California acknowledged that governmental immunity had grown into something the old English common law never intended—a comprehensive shield that left injured citizens with no recourse even for clear governmental negligence.

Other states have made similar moves, though none has abandoned immunity entirely. The trend has been toward limited waivers, structured claims processes, and a recognition that some accountability is better than none.

The Modern Debate

Sovereign immunity remains deeply contested. Critics argue it's fundamentally inconsistent with democratic principles. Why should a government of the people, by the people, and for the people be immune from accountability to those same people? The doctrine made sense when kings claimed divine authority, but shouldn't a republic founded on consent of the governed be answerable to those who govern it?

Defenders counter that practical governance requires some protection from litigation. Governments make difficult decisions affecting millions of people. If every policy choice could spawn lawsuits, governments would become paralyzed by legal risk. Resources that should go to public services would drain into defending lawsuits. Public servants would refuse to make hard calls for fear of personal liability.

The 2022 case Torres v. Texas Department of Public Safety illustrates how these tensions play out. A veteran sued Texas under a federal law designed to protect military personnel returning to civilian jobs. Texas argued it couldn't be sued under federal law due to state sovereign immunity. The Supreme Court ruled five to four against Texas, holding that in matters related to national defense, states had surrendered their immunity when they joined the union.

The narrow margin tells its own story. Even after two centuries of constitutional development, fundamental questions about sovereign immunity remain genuinely contested at the highest levels of American law.

Living With the Paradox

America's relationship with sovereign immunity reveals something important about the nature of government.

The founders created a system of limited government, checks and balances, constitutional constraints on power. They broke from monarchy precisely because concentrated, unaccountable power corrupts. And yet they preserved this monarchical doctrine that places the government beyond ordinary legal accountability.

Perhaps the explanation lies in the difference between political accountability and legal accountability. The Constitution provides many ways to constrain government—elections, separation of powers, federalism, the Bill of Rights. Courts can strike down unconstitutional laws. Voters can throw out officials who abuse their power. These mechanisms for accountability don't require allowing anyone to sue the government for damages at any time.

Or perhaps sovereign immunity persists because truly eliminating it would create problems nobody has solved. Governments must sometimes take actions that harm particular individuals for the general good. Regulations that hurt some businesses. Taxes that burden some citizens more than others. Military decisions that put soldiers in harm's way. If every such decision exposed the government to full legal liability, government might become impossible.

Whatever the explanation, sovereign immunity remains woven into American law—a remnant of monarchy embedded in democracy, a doctrine both practically necessary and philosophically troubling. When you interact with government, you interact with an entity that operates under fundamentally different rules than any private party. The king may be gone, but some of his legal privileges persist.