How Sovereign Immunity Limits Lawsuits Against Government

The King Cannot Be Wrong—In Court

In medieval England, a subject who believed the Crown had wronged him had no straightforward legal recourse. The king could not be sued in his own courts because the law derived its authority from the Crown itself. To allow subjects to sue the king would be logically self-defeating and practically destabilizing. This doctrine—that the sovereign could do no legal wrong—crossed the Atlantic embedded in English common law and took root in American courts even after the Revolution. The United States rejected monarchy but kept the immunity.

How Sovereign Immunity Works in the American System

Sovereign immunity in the U.S. operates at two levels: federal and state. The federal government enjoys absolute immunity except where it explicitly consents to be sued through statute. State governments enjoy immunity from suit in federal court under the Eleventh Amendment, and in their own courts under state constitutional and common law principles, again subject to statutory waivers.

The practical consequence is stark: if a postal service truck runs a red light and kills a pedestrian, the injured family cannot simply sue the United States Department of Justice as they would sue a private driver. They must navigate a specific statutory framework that Congress created in 1946.

The Federal Tort Claims Act of 1946

Before 1946, a citizen injured by federal government negligence had one remedy: convince a member of Congress to introduce a private bill granting individual compensation. This was slow, political, arbitrary, and frequently unsuccessful. The Federal Tort Claims Act (FTCA) changed the framework by waiving federal sovereign immunity for a defined category of negligent acts by federal employees acting within the scope of their employment.

The FTCA allows claims where:

• A federal employee commits a negligent or wrongful act or omission
• The employee was acting within the scope of their federal employment
• The act would give rise to liability if committed by a private person under the law of the state where it occurred
• The claimant first files an administrative claim with the relevant federal agency and waits for denial or six months

The Discretionary Function Exception: Where Claims Go to Die

The most frequently litigated FTCA exception is the discretionary function exception, which bars claims based on government acts involving judgment or discretion in furtherance of policy. The Supreme Court defined its scope in United States v. Gaubert, 499 U.S. 315 (1991).

The exception has two prongs. First, the government act must involve an element of judgment—not a mandatory safety standard. Second, the judgment must be grounded in social, economic, or political policy considerations.

Courts have applied this to produce results that often surprise plaintiffs:

• The Forest Service's decision not to remove a hazardous tree that fell on a camper was protected discretion in park management policy
• The FDA's decision about how aggressively to inspect a drug manufacturer involved regulatory policy judgment
• Road design decisions by federal highway administrators involve engineering and funding policy discretion

But if a mandatory safety regulation exists and a federal employee fails to follow it, the exception disappears. Negligence in following prescribed rules—not discretion in making them—can generate FTCA liability.

Suing State Governments: The Eleventh Amendment Maze

The Eleventh Amendment, ratified in 1795, provides that federal courts cannot hear suits against states brought by citizens of other states or foreign nations. The Supreme Court subsequently extended this principle in Hans v. Louisiana (1890) to bar citizens from suing their own state in federal court without the state's consent.

Three main routes permit suits against states:

• State consent: Most states have enacted tort claims acts waiving immunity for specific categories of negligence. California's Government Claims Act, New York's Court of Claims Act, and similar statutes create defined pathways for suing state agencies.
• Section 1983 actions: 42 U.S.C. § 1983 allows suits against state officials (not the state itself) for constitutional rights violations. Officials sued under § 1983 may claim qualified immunity—a separate and significant defense.
• Congressional abrogation: Congress can abrogate state immunity when legislating under the Fourteenth Amendment. The Americans with Disabilities Act, for example, permits suits against states for disability discrimination.

Qualified Immunity: The Shield for Government Officers

Even where sovereign immunity is waived for the government entity, individual government officers—police officers, prison guards, federal agents—benefit from qualified immunity, a judicially created doctrine holding that officials cannot be personally liable for constitutional violations unless the right they violated was clearly established at the time of the conduct.

The Supreme Court created qualified immunity in its modern form in Harlow v. Fitzgerald (1982) and has progressively strengthened it. Critics argue the standard has become nearly impossible to meet because courts require prior cases with nearly identical facts—which are rarely available for novel situations. Congress has considered the George Floyd Justice in Policing Act, which would eliminate qualified immunity for law enforcement, but the legislation has not passed.

When the Government Pays: Notable FTCA Recoveries

Federal tort liability is real. The government paid approximately $5 billion in FTCA claims across roughly 50,000 administrative claims annually in recent years. Medical malpractice at VA hospitals and military facilities generates the largest category of payments. The FBI's COINTELPRO program and post-9/11 detention abuses have generated substantial litigation, though many cases were dismissed on national security grounds.

The irony of sovereign immunity is that it exists to protect stable governance from litigation disruption—but it also insulates wrongdoing from accountability. The gradual narrowing of its scope reflects two centuries of American courts wrestling with whether government power should come with accountability proportionate to its authority.

This article is for informational purposes only and does not constitute legal advice.