Yesterday, in Al-Haramain Islamic Foundation, Inc. v. Obama, a panel for the Ninth Circuit Court of Appeals ruled that the federal government did not unequivocally waive its sovereign immunity when it comes to violations of federal wiretapping law, thus leaving violations without a civil remedy. In effect, this leaves the plaintiffs with no ability to hold the government accountable for breaking its own laws. As the opinion itself stated: “This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization.”
The dangers of broad immunity are real in both the public and private contexts. Previously, Ryan Radia of CEI and Berin Szoka of TechFreedom have argued that any cybersecurity bill passed by Congress should not grant broad statutory immunity against common law contract claims because it would prevent a market for privacy from arising. In Al-Haramain, the principle of sovereign immunity was applied, thwarting an attempt to keep government officials accountable.
The genesis of sovereign immunity should be enough to illustrate its dangers. The concept is a relic of a bygone era, reflecting the medieval idea that “the King can do no wrong.” Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201 (2001). Along with the confused doctrine of divine right of Kings, there were those who seemingly believed the monarch actually shared many of God’s attributes–such as perfect administration of justice. This is in stark contrast with the classical liberal standard, which is that all men should be held accountable for their actions.
The notion that the government is incapable of error seems contrary to the historical experience of the Founding generation and can be found nowhere in the United States Constitution. Nonetheless, the concept of sovereign immunity has been incorporated into American law by courts who looked to English common law and practice. The theoretical justification of such a move has been unclear even to the courts which have applied it. See, e.g., United States v. Lee, 106 U.S. 196, 207 (1882) (“[T]he principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”).