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Vanderbilt Law Review

Harold J. Krent

First Page

1529

Abstract

The United States generally is immune from suit without its con- sent. Accordingly, neither Congress nor the executive branch need pay damages' for any contract breached, any tort committed, or any constitutional right violated by the federal government. Although the doctrine of sovereign immunity persists, it persists subject to near unanimous condemnation from commentators. Many have rejected the underlying theory that the "King can do no wrong" as oddly out of place in our republican governments and many have noted as well that sovereign immunity was never applied as comprehensively in the past as it is today. Presently, there seems no justification for permitting government wrongdoing to go unremedied. Indeed, sovereign immunity confers upon the government an apparent advantage in the market- place-unlike private individuals and entities, the government is liable only to the extent it deems appropriate.

Much of sovereign immunity, however, derives not from the infallibility of the state but from a desire to maintain a proper balance among the branches of the federal government, and from a proper commitment to majoritarian rule. For instance, Congress understandably might conclude that legislators would have too much incentive to conform their actions to the policy preferences of judges if the judiciary could second- guess whether congressional action or inaction were negligent. Furthermore, if the judiciary strictly enforced congressional contracts to the same extent as those of private parties, then succeeding generations might be bound excessively by the dead hand of Congresses past, preventing contemporary Congresses from pursuing current concerns as effectively.

Congress similarly could conclude that some damage actions against executive branch agencies or officials may distort public policy objectives. Although Congress is most concerned with safeguarding its own policy, Congress at times wishes to insulate its delegates in the executive branch who also formulate policy responsive to majoritarian politics. Judicial review could impede majoritarian policymaking if judges were empowered to review certain discretionary executive branch actions for their reasonableness or to force the executive branch to uphold contractual obligations that it believes are no longer in the nation's best interests. Moreover, the prospect of market damages in a tort or contract suit might deter even the most committed government officials or legislators from pursuing initiatives that they believe are in the public interest. Justification for continued sovereign immunity, therefore, may stem from concerns for preserving majoritarian policymaking and not from any need to honor hoary traditions.

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