A Small Win On Sovereign Immunity At The SCOTUS

by: Bill Egnor AKA Something The Dog Said

Wed Apr 20, 2011 at 06:24:19 AM MST

As part of the Friday Constitutional series we recently talked about Sovereign Immunity. Basically it is the idea that a citizen or group can't sue the government for the normal conduct of its work, even when they disagree with that conduct. It is basically designed to keep the gears of government from being gummed up with law suits from the opposition.

Sovereign immunity can be waved by the government in question (local, State or Federal) and is in a great number of cases. This idea, while part of the Constitution had decayed quite a bit by the late 1990's when the Rehnquist Court brought it out of the ICU and back into mainstream legal thought with the Alden v. Maine decision.

The basic issue here was whether Federal law allowed private citizens to sue state government over issues of Federal law, even against an assertion of Sovereign Immunity by the State. The premise that the Rehnquist Court used to say that a SI claim could be made and upheld by a State was based on some really shaky legal reasoning. It basically held that because the original states had sovereign immunity prior to the founding of the United States that it should have continued even when they formed a new country.  

It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on "the dignity and respect afforded a State, which the immunity is designed to protect"...Apparently beguiled by Gilded Era language describing private suits against States as " 'neither becoming nor convenient,' "the Court calls "immunity from private suits central to sovereign dignity," and assumes that this "dignity" is a quality easily translated from the person of the King to the participatory abstraction of a republican State...The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone's description of royal dignity, which he sets out as a premise of his discussion of sovereignty:

"First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects... . The law therefore ascribes to the king ... certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine."

It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government's immunity from private suit, it is not dignity.

Unfortunately the majority opinion as flawed as it was became the standard test for SI claims in the states and has prevented a lot of private parties from being able to sue the state, not because of its normal operation but because of its failure to operate as it is required.

There was an exception in this test survived and that was a case called  Ex Parte Young. The upshot of this case was that a when a state official acts in a way that is unconstitutional, even when they are acting at the behest of their state, they are no longer shielded from law suits by people within their states in federal court.

Which brings us to Virginia and the 6-2 decision by the Supreme Court. The court found that the State of Virginia could not claim sovereign immunity from a law suit brought by a state agency brought against the State in Federal court.

There is a Federal law that gives states money to help provide for those with developmental disabilities. It provides that there has to be an system that provides protection and advocacy for these folks. After several reports of injuries and deaths in the State of Virginia's mental hospitals the independent state agency, the Virginia Office for Protection and Advocacy, charged with this duty started an investigation. They requested records and documents form the State and were refused access to them. The agency then sued in Federal Court.

Virginia tried to assert sovereign immunity based on the idea that because it was one state agency suing the other, there was no standing under Ex Parte Young. The Supreme Court found that they did not have a leg to stand on. With remarkable common sense (for legal matters) the Court found there can be no test based on the person or group brining such a suit. Since an individual would surely be granted the right to sue for these records under Ex Parte Young, there was no reason that a state agency should be denied that ability.

So the VAPA will now be able to start a law suit to get the records it needs to do its job. The good news is that this is a positive step towards government accountability. A really small step, since the High Court declined to expand the SI protections of the States, even though it left the Alden v. Maine test in place.

It really is too much to expect a Court that is in all objective measures more conservative than the Rehnquist Court to overturn that decision. Still having an outside boundary as to how far this blanket protection from the States can go is important. We have stopped losing ground, and can now start to make a fight against the idea that a state can do things that are unconstitutional at the Federal level and be shielded from suits against it by their citizens.

In the end it is pretty sad to be happy about a crumb like this. Still most the verdicts by the Roberts Court have done more to undercut the rights of individuals and organizations to sue so this is a win worth at least a little smile. Oh, and as if you could not guess, the two Justices to vote for extending Sovereign Immunity where Chief Justice Roberts and Justice Alito.

The floor is yours.