What Is Sovereign Immunity? Definition and Examples

Sovereign immunity is the legal doctrine providing that the government cannot be sued without its consent. In the United States, sovereign immunity typically applies to the federal government and state government, but not, in most cases, to local governments. However, both the federal and state governments can waive their sovereign immunity. It is important to note that the state governments are not immune from lawsuits brought against them by other states or by the federal government.

Understanding Sovereign Immunity 

Though it might appear to be contrary to the Due Process of Law clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, sovereign immunity means that, in most cases, no person can sue the government without having the government’s permission to do so. Sovereign immunity is used as a way of protecting the government from having to alter its policies any time a person takes issue with them.

Historically, the government has been given sovereign immunity from civil or criminal prosecution without its consent, but in modern times, federal and state laws have provided exceptions that allow for prosecution in certain instances.

The principle of sovereign immunity in US law was inherited from the English common law maxim rex non potest peccare, meaning “the King can do no wrong,” as proclaimed by King Charles I in 1649. “No earthly power can justly call me, who am your king, in question as a delinquent,” he explained. Proponents of royal supremacy had seen in that maxim proof that kings were not only legally unaccountable but actually above the law.

However, since America’s Founding Fathers abhorred the very idea of ever again being ruled by a king, the U.S. Supreme Court, in its decision in the 1907 case of Kawananakoa v. Polybank, suggests different reasoning for America adopting sovereign immunity: “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Though sovereign immunity has become more limited over the years with exceptions in the law so that it is no longer an absolute, it is still a judicial doctrine that allows some degree of immunity.

Sovereign immunity falls into two categories—qualified immunity and absolute immunity.

Qualified immunity shields state and local government officials, such as police officers, from being sued as long as they are acting within the scope of their office, in objective good faith, and their actions do not violate an established statutory or constitutional right of which a reasonable person would be aware. As affirmed by the U.S. Supreme Court, the application of qualified immunity has been criticized by those who say it allows for and even encourages the use of excessive force by police. In the 2009 case of Pearson v. Callahan, the Supreme Court noted that “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” This application of qualified immunity has been criticized by those who say it allows for and even encourages the use of excessive and deadly force by police. Qualified immunity applies only to government officials in civil litigation, and does not protect the government itself from suits arising from the actions of those officials.

Absolute immunity, in contrast, grants sovereign immunity to government officials making them completely immune from criminal prosecution and civil suits for damages, so long as they are acting within the scope of their duties. In this manner, absolute immunity is intended to protect all officials except those who are clearly incompetent or those who knowingly violate the law. Essentially, absolute immunity is a complete bar to a lawsuit with no exceptions. Absolute immunity generally applies to judges, prosecutors, jurors, legislators, and the highest executive officials of all governments, including the President of the United States.

For most of American history, sovereign immunity almost universally protected federal and state governments and their employees from being sued without their consent. Starting in the mid-1900s, however, a trend toward government accountability began to erode sovereign immunity.  In 1946, the federal government passed the Federal Tort Claims Act (FTCA), waiving immunity to suit and liability for some actions. Under the Federal FTCA, individuals can sue federal employees for violating the duties involved with their role, but only if negligence was a factor. For example, if a U.S. Postal Service truck operated negligently collides with other vehicles in an accident, the owners of those vehicles can sue the government for property damage.

Since 1964, many state legislatures followed by enacting statutes to define the limits of immunity for state governmental entities and employees. Today, state tort claims acts modeled after the FTCA are the most prevalent statutory waiver allowing tort claims against the state.  

The doctrine of state sovereign immunity is based on the Eleventh Amendment, which reads, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This means that a state cannot be sued in federal or state court without its consent. However, in its decision in the 1890 case of Hans v. Louisiana, the U.S. Supreme Court held that state immunity derives not from the Eleventh Amendment, but from the structure of the original Constitution itself. This reasoning led the unanimous Court to hold that states could not be sued by their citizens on grounds arising under the Constitution and laws of the United States. Thus in its own state court, a state can invoke immunity even when sued under otherwise valid state law. However, the state governments are not immune from lawsuits brought against them by other states or by the federal government.

Suit vs Enforcement 

Sovereign immunity gives the government two levels of immunity: immunity from being sued (also known as immunity from jurisdiction or adjudication) and immunity from enforcement. The former prevents the assertion of the claim; the latter prevents even a successful litigant from collecting on a judgment. Neither form of immunity is absolute.

Both recognize exceptions, such as suits allowed under state and federal tort claims laws, but those exceptions differ from case to case. Depending on the facts, an individual may be able to invoke an exception to immunity from suit to bring and win a suit, but be unable to collect awarded damages because none of the exceptions to immunity from enforcement apply.

The Foreign Sovereign Immunities Act of 1976 (“FSIA”) governs the rights and immunities of foreign – as opposed to U.S. federal – states and agencies. Under FSIA, foreign governments are immune both from jurisdiction and from enforcement in the United States, unless an exception applies.

While FSIA recognizes numerous exceptions to immunity from being sued. Three of those exceptions are particularly important to U.S. entities—and only one need to apply for the suit to proceed:

• Commercial Activity. An otherwise immune foreign state entity can be sued in a U.S. court if the suit is based on a commercial activity with a sufficient link to the U.S. For example, investing in a private equity fund has been recognized as a “commercial activity” under FSIA, and a failure to make a payment in the U.S. may be sufficient to permit the suit to go forward. 
• Waiver. A state entity can waive its immunity under FSIA either explicitly or by implication such as by filing a responsive court pleading in an action without raising a defense of sovereign immunity.
• Arbitration. If a state entity has consented to arbitration, it may be subject to a U.S. court action brought to enforce an arbitration agreement or to confirm an arbitration award.

The scope of immunity from enforcement is somewhat different. Where FSIA treats foreign states and their agencies roughly the same for purposes of immunity from being sued, for enforcement, property owned directly by the state is treated differently from property owned by its agencies.

In general, a judgment against the property of a foreign state can only be enforced if the property at issue is “used for commercial activity”—a definition that has never been fully developed in either U.S. or foreign courts. Finally, the FSIA provides that the property of a foreign central bank or monetary authority “held for its own account” is immune from enforcement unless the entity, or its parent foreign state, has explicitly waived its immunity from enforcement.

Objections to Sovereign Immunity

Critics of sovereign immunity argue that a doctrine based on the premise that “the King can do no wrong” deserves no place in American law. Founded on a rejection of monarchial royal prerogatives, the American government is based on the recognition that the government and its officials can do wrong and should be held accountable. 

Article IV of the Constitution states that the Constitution and laws made according to it are the supreme law of the land and as such should prevail over government claims of sovereign immunity.

Finally, critics contend that sovereign immunity is contrary to the central maxim of the U.S. government that no one, including the government itself, is “above the law.” Instead, the effect of sovereign immunity places the government above the law by prevents individuals who have suffered significant harm from receiving compensation for their injuries or losses. 

Examples 

Throughout the doctrine’s long history as part of U.S. law, the elusive exact nature of sovereign immunity has been defined and redefined by the rulings in numerous court cases involving government trying to enforce it and individual litigants trying to overcome it. A few of the more notable of those cases are highlighted below.

Chisholm v. Georgia (1793)

While the Constitution did not directly address state sovereign immunity, it certainly was discussed at state ratification debates. Nevertheless, its textual absence posed a problem that the Supreme Court confronted shortly after ratification in the case of Chisholm v. Georgia. In a suit brought by a citizen of South Carolina against the state of Georgia to recover a Revolutionary War debt, the Court held that sovereign immunity did not protect the state of Georgia when sued by a citizen of another state in federal court. In finding that the federal courts had jurisdiction to hear the suit, the Court adopted a literal reading of the text of Article III, which extends federal judicial power to “all Cases” involving federal law “in which a State shall be a party” and to “Controversies . . . between a State and Citizens of another State.”

Schooner Exchange v. McFadden (1812)

A more recent theoretical basis of the doctrine of sovereign immunity was articulated by Chief Justice John Marshall in the landmark 1812 Supreme Court case of Schooner Exchange v. McFaddon. In October of 1809, the merchant schooner Exchange, owned by John McFaddon and William Greetham, sailed for Spain from Baltimore, Maryland. On December 30, 1810, the Exchange was seized by the French Navy. The Exchange was then armed and commissioned as a French warship, under the name of Balaou No. 5. In July 1811, the Balaou entered Philadelphia harbor for repairs from storm damage. During the repair, McFaddon and Greetham filed a suit in the United States Court for the District of Pennsylvania asking the court to seize the vessel and have it returned to them, claiming that it had been taken illegally.

The district court found that it did not have jurisdiction over the dispute. On appeal, the Circuit Court for the District of Pennsylvania reversed the decision of the district court and ordered the district court to proceed to the merits of the case. The U.S. Supreme Court reversed the circuit court's decision and affirmed the district court's dismissal of the action.

Applying that analysis to the facts at hand, Marshall found that the U.S. courts did not have jurisdiction over the case.

For more than 150 years following The Schooner Exchange, the vast majority of the cases involving a possible plea of sovereign immunity were cases involving maritime admiralty. The opinions in these cases are weighted with references 

The Schooner Exchange. Immunity was generally granted to those ships in the actual possession of a foreign government and employed for a public purpose. Mere governmental ownership of the vessel, without an allegation of public use and possession, was, however, held to be insufficient cause to grant immunity.

Ex Parte Young (1908)

While state officials can generally claim sovereign immunity when sued in their official capacity, they cannot do so in one specific instance as established by Ex Parte Young. In this case, the Supreme Court held that a private litigant can bring suit against a state officer to end “a continuing violation of federal law.” After Minnesota passed laws limiting what railroads could charge in that state and established severe penalties, including fines and jail for violators, some shareholders of the Northern Pacific Railway filed a successful lawsuit in the United States Circuit Court for the District of Minnesota asserting that the laws were unconstitutional as violating the Due Process Clause of the Fourteenth Amendment, as well as the Commerce Clause in Article 1, Section 8. 

Alden v. Maine (1999)

In Alden v. Maine, the Supreme Court extended sovereign immunity to suits brought in state court. In 1992, a group of probation officers sued their employer, the State of Maine, alleging that the state had violated the overtime provisions of the 1938 Fair Labor Standards Act. Following the Court's decision in Seminole Tribe v. Florida, which had held that states are immune from private suits in federal court and that Congress lacks the authority to negate that immunity, the probation officers' suit was dismissed in federal district court. The other probation officers then sued Maine again for violating the Fair Labor Standards Act, this time in state court. The state trial court and the state supreme court both held that Maine had sovereign immunity and could not be sued by private parties in their own court. In its ruling on the appeal, the U.S. Supreme Court explained that state sovereign immunity is not derived solely from the text of the 11th Amendment, but rather from “fundamental postulates” and “the Founders’ understanding” of constitutional structure.

Torres v. Texas Department of Public Safety (2022)

As evidence that the meaning and application of sovereign immunity continue to evolve today, on March 29, 2022, the Supreme Court heard oral arguments in the case of Torres v. Texas Department of Public Safety. In this sovereign immunity case, the Court will be faced with deciding whether a private individual can sue his state agency employer for violating the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Among other provisions, USERRA requires both state and private employers to rehire former employees back into the same position after they have completed military service. If the employee incurs a disability during military service that renders him or her unable to perform the duties of the prior position, the employer must instead place that person in a position “that provides a similar status and pay” to the original position. USERRA allows individuals to sue non-compliant employers in either state or federal court.

In 1989, complainant Leroy Torres joined the United States Army Reserve. In 1998, the Texas Department of Public Safety (DPS) hired him as a state trooper. In 2007, the Reserve deployed Torres to Iraq, where he suffered lung damage after being exposed to fumes from “burn pits” used to dispose of waste on military installations. In 2008, after receiving an honorable discharge from the Reserve, Torres asked DPS to re-employ him. Torres requested that DPS assign him to a new post to accommodate his lung injury. DPS offered to rehire Torres but did not grant his request for a different assignment. Instead of accepting DPS’s offer to resume work as a state trooper, Torres resigned and subsequently filed his suit against the DPS.

In a 5-4 decision in June 2022, the Supreme Court held that Texas could not invoke sovereign immunity as a shield from a lawsuit such as this, and permitted Torres's suit to go forward.

Sources

• Phelan, Marilyn E. and Mayfield, Kimberly. “Sovereign Immunity Law.” Vandeplas Publishing, February 9, 2019, ISBN-10: 1600423019.
• “State Sovereign Immunity and Tort Liability.” National Conference of State Legislatues, https://www.ncsl.org/research/transportation/state-sovereign-immunity-and-tort-liability.aspx
• LandMark Publications. “Eleventh Amendment Sovereign Immunity.” ‎Independently published, July 27, 2019, ISBN-10: ‎1082412007.
• Shortell, Christopher. “Rights, Remedies, and the Impact of State Sovereign Immunity.” State University of New York Press, July 1, 2009, ISBN-10: ‎0791475085.