Sovereign immunity
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Sovereign immunity or crown 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 government cannot commit a legal wrong and is immune from civil suit or criminal prosecution. In many cases, the government has waived this immunity to allow for suits; in some cases, an individual, such as an attorney general, may technically appear as defendant on the government's behalf.
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[edit] In constitutional monarchies
In a constitutional monarchy, such as the United Kingdom, the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects. This position was drastically altered for the United Kingdom by the Crown Proceedings Act 1947 which made the government generally liable, with limited exceptions, in tort and contract. Even before this time it was possible to claim against the Crown with the Attorney-General's fiat (i.e. permission.) This was called a petition of right. Alternatively, Crown servants could be sued in place of the Crown (and the Crown as a matter of course paid.) Further, Mandamus and Prohibition were always available against Ministers because they derive from the prerogative.
[edit] In the United States
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. 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.
In Hans v. Louisiana, 134 U.S. 1 in 1890, the United States Supreme Court held that the Eleventh Amendment, which on its face reads as a constitutional limitation on the diversity jurisdiction of the federal courts, imports the common-law notion of sovereign immunity and prevents non-consenting states from being sued in federal court. If sovereign immunity is viewed as a fundamental limitation on the subject matter jurisdiction of the courts, it is unclear how consent to suit remedies the underlying jurisdictional defect. Nonetheless, the Supreme Court has consistently and repeatedly held that consenting states may be sued. In later cases, such as Alden v. Maine, the Supreme Court has strengthened state sovereign immunity considerably. Cities and municipalities are not generally considered to have sovereign immunity.
The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligence, but not intentional wrongs, of government employees. The common-law tort doctrine of respondeat superior makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy. This principle was ruled in Brandon v. Holt, 469 U.S. 464 (1948).
Congress may strip states of sovereign immunity under some circumstances under the abrogation doctrine. Even if it does not do so, wronged individuals are not completely out of luck. Ex parte Young, 209 U.S. 123 ruled in 1908, allows federal courts to enjoin the enforcement of unconstitutional state (or federal) statutes on the theory that state officials acting unconstitutionally no longer do so on behalf of the state. For "constitutional torts," 42 U.S.C. § 1983 allows state officials to be sued in their individual or official capacities, a principle which was demonstrated again in Brandon v. Holt, 469 U.S. 464 (1984). Since state officials, like the attorney general, are indemnified by the state, damages assessed against those officials are effectively damages assessed against the state itself. Furthermore, the Bankruptcy Clause of the Constitution strips some of the sovereign immunity of the states, which was invoked in Central Virginia Community College v. Katz. The Court held that state sovereign immunity was not implicated by the exercise of in rem jurisdiction by bankruptcy courts in voiding a preferential transfer to a state.
The doctrine of Ex Parte Young was dealt a setback by Justice Rehnquist in Edelman v. Jordan, 415 U.S. 651 (1974), where then-Justice Rehnquist, joined by five other justices, held that relief under Ex Parte Young can only be for prospective, rather than retrospective relief. Justice Rehnquist reasoned that the Eleventh Amendment's protection of state sovereignty requires the state's coffers to be shielded from suit. Prospective relief includes injunctions and other equitable orders, but would rarely include damages.
Another effective shield from liability for civil rights suits is the [personal] immunity from civil suit of government officials. This is not because of sovereign immunity, but rather the doctrines of qualified and absolute official immunity as demonstrated in Harlow v. Fitzgerald. The scope of official immunity generally does not extend to acts unrelated to the official’s governmental role, such as liability for breach of contract, or, famously, for sexual harassment. The distinction between immunity to civil suit and immunity from criminal prosecution is particularly relevant in all such contexts.
[edit] Critique of sovereign immunity
Sovereign immunity may be in relation to the sovereign personally, such as when prosecuting the crown for a crime, on the principle that no one should be above the law in a society that recognizes the rule of law. Even a mere accusation of criminal fault against the monarch personally would probably precipitate a crisis, and could call into question the legitimacy of the whole constitution.
Other aspects of this type of immunity have also been called into question, as governments may use it to prevent a finding of liability for acts that might otherwise be actionable if performed by private citizens. When the monarch personally, or through an agent, enters into a contract for goods or services, it is currently an unresolved uncertainty whether the person or company who provides such services should receive due compensation or be able to sue for breach of contract. Further issues include whether the monarch be bound by principles of contract law like all others. However, it seems reasonable that governments may seek to be immune for prosecution or liability from government acts that are part and parcel of function of government which are created to benefit society as a whole and are thus outside the realm of private law.
