Lily's Response #1 to Sovereign Immunity Discussion

Lily's Response #1 to Sovereign Immunity Discussion

The majority opinion in Katz holds that the 50 States consented to be sued (i.e. they waived sovereign immunity) when they signed off on the clause in the US Constitution that provides for a uniform bankruptcy system - i.e., essentially, when they consented that bankruptcy would be federal law, not state law. I find this to be a very odd rationale.

Sovereign immunity (the concept that the government cannot be sued) is an ancient common law principle dating back to Merry Olde England, where traditionally private subjects of the Crown could not sue the Crown. The default rule, ever since those days, has always been that governments cannot be sued; but, as everyone knows, this can sometimes lead to rampant injustice. So, legislatures, including the US Congress and most state legislatures, have enacted various bills listing situations where the government consents to be sued: for example, most states and the federal government have some type of Tort Claims Act, which gives citizens the ability to sue, for example, when a squad car runs over an innocent bystander in a police chase. There are other situations where states consent to be sued, too - a prominent example in Andrew's and my home state of North Carolina is that whenever the State purchases liability insurance, and the insured-against risk turns into an accident, the State can be sued (and, hopefully for the plaintiff, the insurance company will pay out rather than have to defend a lawsuit).

Generally speaking, the State can nowadays be sued whenever the liability-imposing action is the kind of action that a private citizen can do. Examples: a private citizen can run a bookstore or hire a contractor to build a building. A private citizen cannot, however, maintain a standing army or police force, or administer a judiciary. So if a lawsuit were to arise because a State breached a construction contract, then sure, it can be sued. But if the police, in the normal course of their jobs, arrest the wrong person, the police can't be sued for that.

As for cases when it's not clear whether a private citizen could engage in the sued-upon action (and there are lots!), courts have generally construed statutes waiving sovereign immunity narrowly. NARROWLY. The presumption is that a state is not going to waive its sovereign immunity lightly, or through ambiguous wording; if the statute doesn't clearly waive, then there is no waiver. That is why this Supreme Court majority opinion seems to me to depart from precedent; it says that the States impliedly waived sovereign immunity when they signed the Constitution which included the bankruptcy clause.