Sovereign immunity refers to a government’s immunity from being sued in its
own courts without its consent. This doctrine dates as far back into the English
common law as the thirteenth century. The premise of sovereign immunity was
that “the king can do no wrong,” because his will was the law. If the king
acted, it was inherently lawful. Furthermore, there was no court high enough
to try a king.
The doctrine made its way into American law when the states adopted the
common law from England. Prior to the tort claims acts, which waived the
immunity for certain claims, the only way to bring the federal or state
government into court as a defendant was to attain its consent.
See U.S. v.
Mitchell, 463 U.S. 206, 212-13 (1983) (citing Paul Bator, et al., The Federal
Courts and the Federal System 98 (2d ed. 1973)).
From the ratification of the United States Constitution until the 1985s, there
were no exceptions to the sovereign immunity of the federal government. The
United States Constitution declared that "No Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art.
I, § 9. Therefore, the only way to obtain an enforceable judgment against the
federal government was by private bill. This meant that a would-be plaintiff
had to petition his or her particular Congressman to introduce a bill allowing a
waiver of sovereign immunity for that person's grievance. Congress could then
pass that special bill, and the action could proceed in court.
Congress attempted to delegate this claims processing work to the courts.
However, the U.S. Supreme Court held that this delegation violated separation
of powers. Hayburns Case, 2 U.S. 409 (1792). As the federal government
gradually expanded its spheres of influence, more and more private bills were
introduced. This situation was not acceptable to Congress because the sheer
number of claims meant there was no way to adequately investigate the
merits of any claim before voting approving the immunity waiver. This might
allow the approval of an otherwise unwarranted claim. The process was also
difficult for litigants because of logistical difficulties. As a result, the immunity-
waiver process was changed in 1855, when the Court of Claims was