Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence

As I suggest below in Part I, federal sovereign immunity was a doctrine of limited effect in the early years of this republic and allowed for a number of remedies for governmental wrongdoing. Moreover, the constitutional provenance of federal sovereign immunity is obscure, and was a matter of genuine uncertainty in early years. Over time the doctrine developed, drawing support from some aspects of constitutional architecture as well as from unreasoning and mistaken extensions of other versions of sovereign immunity. Among the strands of constitutional structure behind federal sovereign immunity are Congress\u27 powers over appropriations and the jurisdiction of the federal courts, powers that do not necessarily require but may help explain the early attraction of sovereign immunity as a doctrine. As described in Part II, the sovereign immunity doctrine has been dynamic, not static, as judges make choices about how broadly or narrowly to characterize its reach in response to legislation by Congress. In the inter-branch dynamic, both Congress and the Court have refrained at critical junctures from pressing constitutional limits, a restraint that has created an arguably beneficial ambiguity about the relationship of the judicial power to the legislative power in resolving claims against the government. Yet given the adverse effects of sovereign immunity on courts\u27 capacities to provide individual justice, it is past time for that dynamic to move back towards more restrictive understandings of the doctrine\u27s scope. In Part III, I consider federal sovereign immunity\u27s relation to aspects of the idea of judicial independence embodied in Article III of the United States Constitution. Doctrines that article III courts will not enter ineffective or advisory judgments, nor judgments subject to legislative or executive revision or direction, coalesce in cases involving claims against the government, in ways that suggest that sovereign immunity may have been thought to preserve an aura of judicial independence. In light of the competing constitutional norms at stake and the well-established independence of the federal courts today, I end by urging re-interpretation of federal sovereign immunity doctrines so as to close rather than widen remedial gaps in the law