Omar Bennett
Sovereign immunity, a principle inherited from English common law, dictates that the federal, state, and tribal governments in the United States are generally shielded from lawsuits. Local governments in most jurisdictions also enjoy immunity from some forms of suit, particularly in tort. This immunity, however, may be waived by law in certain situations. The Foreign Sovereign Immunities Act (FSIA) of 1976, for example, establishes the limitations for suing a foreign sovereign nation in US courts. This raises the question: are statements made during political campaigns protected by sovereign immunity?
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What You'll Learn
The Foreign Sovereign Immunities Act (FSIA)
In the United States, the federal, state, and tribal governments typically enjoy sovereign immunity, or governmental immunity, from lawsuits. Local governments in most jurisdictions are also immune from some forms of suit, particularly in tort. The Foreign Sovereign Immunities Act (FSIA) of 1976 establishes the limitations on whether a foreign sovereign nation or its political subdivisions, agencies, or instrumentalities can be sued in US federal or state courts.
The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States. It defines the circumstances under which a foreign state will be immune from suit and outlines a federal long-arm statute that allows for in personam jurisdiction over a foreign state, political subdivision, agency, or instrumentality, as long as the service of process complies with its provisions. The FSIA also establishes specific procedures for service of process and attachment of property for proceedings against a foreign state.
The FSIA had three main objectives:
- To transfer responsibility for immunity determinations from the Department of State to the judiciary
- To define and codify the "restrictive" theory of immunity
- To provide a comprehensive, uniform regime for litigation against foreign states and governmental agencies
The "restrictive" theory of immunity states that the public acts (jure imperii) of a foreign state are entitled to immunity, while the private acts (jure gestionis) are not. This theory was first articulated by the U.S. State Department in 1952 and later codified by statute in 1976 with the FSIA. The FSIA standards of immunity and its exceptions apply to lawsuits filed after its enactment, even if the conduct in question occurred prior to the FSIA.
The most important exception to sovereign immunity under the FSIA is the commercial activity exception, which was central to the Supreme Court case of Argentina v. Amerada Hess Shipping Corp. in 1989. The Court ruled that Argentina was not entitled to sovereign immunity in this case because its issuance of bonds was considered a "commercial" activity rather than a regulatory act. However, the FSIA does not allow for survivors or heirs of victims of the Holocaust and Nazi Germany to sue Germany for compensation for possessions lost during that period, as ruled by the Supreme Court in Germany v. Philipp in 2021.
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Sovereign immunity and the Eleventh Amendment
Sovereign immunity, a concept inherited from English common law, is a "personal privilege" that a state may waive at its pleasure. In the United States, the federal government, as well as state and tribal governments, generally enjoy sovereign immunity from lawsuits. This is also known as governmental immunity. The Eleventh Amendment was the first Constitutional amendment adopted after the Bill of Rights, clarifying that federal courts do not have the authority to hear cases brought by private parties against a state of which they are not citizens.
The Eleventh Amendment was adopted to overrule the Supreme Court's decision in Chisholm v. Georgia (1793). In that case, the Court held that states did not enjoy sovereign immunity from suits made by citizens of other states in federal court. The Eleventh Amendment established that federal courts do not have the authority to hear cases brought by private parties against a state of which they are not citizens. However, the Supreme Court has ruled that the amendment applies to all federal suits against states brought by private parties. The Court has also held that Congress can abrogate state sovereign immunity when using its authority under Section 5 of the Fourteenth Amendment.
The Eleventh Amendment does not extend to all "lesser entities" associated with the state but only to entities considered "arms" or "instrumentalities" of the state. Towns, counties, and other political subdivisions of a state cannot invoke sovereign immunity in federal courts, even if they exercise a degree of state power. The Foreign Sovereign Immunities Act (FSIA) of 1976 establishes the limitations on whether a foreign sovereign nation or its subdivisions may be sued in US courts.
While the Eleventh Amendment provides immunity to states from suits by citizens of other states, it does not mention suits brought against a state by its own citizens. In Hans v. Louisiana (1890), the Supreme Court ruled that the amendment reflects a broader principle of sovereign immunity, holding that states are immune from suit by their citizens. Sovereign immunity can be waived by law in some situations, and Congress has waived sovereign immunity for patent infringement claims under 28 U.S.C. § 1498(a). Local governments in most jurisdictions also enjoy immunity from some forms of suit, particularly in tort.
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Sovereign immunity and diplomatic immunity
Sovereign immunity, also known as governmental immunity, is a principle in US law inherited from English common law, which holds that the "king can do no wrong". This immunity extends to the federal government, state and tribal governments, and local governments in most jurisdictions, particularly in tort. Local sovereign immunity operates through two doctrines that prevent remedies for violations of federal rights. Firstly, a stringent causation requirement often prohibits recovery against local governments even when their agent violates federal constitutional rights. Secondly, sovereign immunity protects local governments from federal constitutional suits.
Sovereign immunity may be waived by law in certain situations. For instance, Congress has waived sovereign immunity for patent infringement claims under 28 U.S.C. § 1498(a). Additionally, the Foreign Sovereign Immunities Act (FSIA) of 1976 establishes the limitations on suing a foreign sovereign nation in US courts and sets out specific procedures for service of process and attachment of property. The FSIA also provides the exclusive means to bring a lawsuit against a foreign sovereign in the US.
Diplomatic immunity is a customary law that has been codified by the 1961 Vienna Convention on Diplomatic Relations, which has been ratified by most sovereign states. This convention formally established the legal and political status of diplomats. Diplomatic immunity is held by the state and may be waived, exposing the individual to trial and punishment by the host state. Immunity may be waived by the home country to allow prosecution for serious crimes unrelated to the diplomatic role, although many countries refuse to waive immunity. Immunity also does not apply if a diplomat is outside the country where they are posted, as in the case of Iranian diplomat Asadollah Asadi, who was arrested in Germany.
Diplomatic immunity has been abused in the past, such as by Franz von Papen, who abused his diplomatic immunity as a German military attaché in the US to organise plans for sabotage and an uprising against the British Raj. Additionally, issues of abusing diplomatic immunity in family relations, especially alimony and child support, have become widespread.
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Sovereign immunity and presidential immunity
Sovereign immunity, also known as governmental immunity, is a principle in US law inherited from English common law, which holds that the federal government, as well as state and tribal governments, is generally immune from lawsuits. This principle is based on the legal maxim "rex non potest peccare", meaning "the king can do no wrong". While sovereign immunity may be waived by law in certain situations, it serves to protect government actors from being sued for allegedly wrongful acts, even if they acted maliciously or in bad faith.
In the United States, the federal government has sovereign immunity and cannot be sued unless it has waived its immunity or consented to the suit. This immunity extends to acts that, if challenged, would significantly impact the operation of the government, such as core legislative acts. The Foreign Sovereign Immunities Act (FSIA) of 1976 further establishes limitations on suing foreign sovereign nations or their subdivisions in US courts.
At the state level, the Eleventh Amendment affirms that states possess sovereign immunity and cannot be sued in federal court without their consent. Local governments in most jurisdictions also enjoy immunity from certain forms of suit, particularly in tort.
Presidential immunity, a form of sovereign immunity, varies across different countries. For example, the President of Finland has immunity from prosecution for official activities, except in cases of treason or crimes against humanity. In contrast, the President of India cannot be sued while in office, but they can be impeached and subsequently held liable for their actions.
In summary, sovereign immunity and presidential immunity provide varying levels of protection from legal prosecution for government actors, including the president, depending on the jurisdiction and the nature of the alleged wrongdoing.
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Absolute vs. qualified immunity
Sovereign immunity, inherited from the English common law legal maxim "rex non potest peccare" ("the king can do no wrong"), generally shields the federal, state, and tribal governments in the United States from lawsuits. This immunity can be waived by law in certain situations.
Absolute immunity, a form of sovereign immunity, protects government actors from being sued for allegedly wrongful acts, even if they acted maliciously or in bad faith. This type of immunity applies to acts that, if challenged, would significantly impact the operation of the government, such as core legislative acts. It also extends to statements made on the floor of the legislature and to judges acting in a judicial capacity.
However, absolute immunity has its limitations. For example, in the 2020 case of Trump v. Vance, the Supreme Court ruled that while presidents are entitled to absolute immunity for exercising core constitutional powers and are presumed immune for other official acts, they have no immunity for unofficial actions. Similarly, absolute judicial immunity does not apply when judges take executive actions or act outside their jurisdiction.
On the other hand, qualified immunity, another aspect of sovereign immunity, offers more limited protection. It shields government actors from liability only if specific conditions are met as specified by statute or case law. Determining whether an official with qualified immunity can be held personally liable depends on the objective legal reasonableness of their allegedly unlawful actions.
While absolute immunity provides a broad shield, qualified immunity offers more targeted protection. The distinction between the two types of immunity lies in the scope and nature of the acts covered. Absolute immunity covers a wider range of acts, including those core to the functioning of the government, while qualified immunity is contingent on specific conditions outlined in statutes or case law.
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Frequently asked questions
Sovereign immunity, also known as governmental immunity, is a legal principle that protects the federal government, as well as state and tribal governments, from lawsuits.
Absolute immunity is a form of sovereign immunity that protects government actors from being sued for allegedly wrongful acts, even if they acted maliciously or in bad faith.
Yes, in certain cases, sovereign immunity can be waived by law. For example, Congress has waived sovereign immunity for patent infringement claims under 28 U.S.C. § 1498(a).
Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. However, counties and municipalities are generally not entitled to sovereign immunity.
Sovereign immunity typically applies to statements made by legislators on the floor of the legislature. Therefore, if a statement made during a political campaign falls under the category of "legislative acts," it could potentially be protected by sovereign immunity. However, it is important to note that the specific laws and interpretations can vary based on the country and jurisdiction.
