Sovereign immunity

“ It is true that under the rules applicable in 1945, the extent of immunity from suit was virtually absolute, while under the rules applicable today, it is more limited. But in 1945, as today, the IOIA’s instruction to grant international organizations the immunity “enjoyed by foreign governments” is an instruction to look up the applicable rules of foreign sovereign immunity, wherever those rules may be found–the common law, the law of nations, or a statute. In other words, it is a general reference to an external body of (potentially evolving) law. ”

“ And although the Constitution assumes that the States retain their sovereign immunity except as otherwise provided, it also fundamentally adjusts the States’ relationship with each other and curtails their ability, as sovereigns, to decline to recognize each other’s immunity. ”

“ The Court in Hall held that the Constitution took the permissive approach, leaving it up to each State to decide whether to grant or deny its sister States sovereign immunity. Today, the majority takes the contrary approach—the absolute approach—and overrules Hall. ”

“ See 5 U.S.C. (Supp. III) § 751 et seq., 5 U.S.C.A. § 751 et seq. Such a comprehensive plan for waiver of sovereign immunity, in the absence of specific exceptions, would naturally be regarded as exclusive. ”

“ Most importantly, the subsequent development of our sovereign immunity jurisprudence has only undermined Arizona’s already weak foundations. We recognized in Alden v. Maine, 527 U. S. 706, 718 (1999) , that the Constitution left intact the States’ pre-existing “immunity from private suits”; as the Eleventh Amendment confirms, the States did not “ ‘surrender . . . this immunity in the plan of the convention.’ ” Id., at 717 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) ) ”

“ The Court in Will reasoned that Congress would not have abrogated state sovereign immunity, exemplified by the Eleventh Amendment, without a clearer statement of its intent to do so; today, the Court finds that a Territory lacking such sovereign immunity, either under the common law or by congressional grace, is not a "person" either. ”

“ Thus, unless some other constitutional principle beyond the immediate text of the Eleventh Amendment confers immunity in the latter situation-that is to say, unless the text of the Eleventh Amendment is not comprehensive-even if the parties to a suit fell within its precise terms (for example, a State and the citizen of another State) sovereign immunity would not exist so long as one of the other, nondiversity grounds of jurisdiction existed. ”

“ SOVEREIGN IMMUNITY.—Nothing in this Act shall be deemed to abrogate or constitute a waiver of any sovereign immunity of a State or local government or Indian tribe against any unconsented lawsuit under this Act, or otherwise to restrict, expand, or modify any sovereign immunity of a State or local government or Indian tribe. ”

“ To abrogate sovereign immunity unambiguously, “Congress need not state its intent in any particular way.” Cooper, 566 U. S., at 291. Nor need Congress “make its clear statement in a single [statutory] section.” Kimel v. Florida Bd. of Regents, 528 U. S. 62, 76 (2000) . The clear-statement question is simply whether, upon applying “traditional” tools of statutory interpretation, Congress’s abrogation of tribal sovereign immunity is “clearly discernable” from the statute itself. ”

“ Invoking this language, the district attorney argues that Reed’s suit is independently barred by state sovereign immunity, in addition to Article III and the Rooker–Feldman doctrine. It appears fairly debatable whether the “connection” requirement described in Young is best understood as a precondition to Young’s sovereign-immunity exception or as a simple application of Article III traceability. ”

“ Section 2126 (e) precludes that possibility. So it too has a role to play in a scheme with sovereign immunity.
In short, nothing in PROMESA makes Congress’s intent to abrogate the Board’s sovereign immunity “unmistakably clear.” Kimel, 528 U. S., at 73. The statute does not explicitly strip the Board of immunity. It does not expressly authorize the bringing of claims against the Board. And its judicial review provisions and liability protections are compatible with the Board’s generally retaining sovereign immunity. ”

“ I do not understand what purpose is served, what principle of federalism or comity is promoted, by refusing to give force to a State's explicit consent to suit.
The Court appears to be driven to this peculiar result in part by its view that "in enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law." Ante, at 67. But the question whether States are "persons" under § 1983 is separate and distinct from the question whether they may assert a defense of common-law sovereign immunity. ”

“ To the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law. "Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action." ”

“ Too, PROMESA does not create any cause of action (or otherwise approve any claim) for use against the Board or Puerto Rico. So recognizing immunity under PROMESA would not—as in the ADEA, FMLA, and IGRA cases—authorize a suit against a sovereign with one hand, only to bar it with the other. Instead, immunity would operate in the ordinary way—to protect a sovereign from a host of claims Congress has not otherwise said may proceed. The upshot is evident: Congress has not, through a means we have recognized, “ma [de] its intention” to abrogate immunity “unmistakably clear.” ”

“ Ex parte New York, 256 U. S. 490 (1921) (admiralty suits by private parties in federal court) ; Smith v. Reeves, 178 U. S. 436 (1900) (suits by federal corporations in federal court) .
3
Despite this historical evidence that interstate sovereign immunity is preserved in the constitutional design, Hyatt insists that such immunity exists only as a “matter of comity” and can be disregarded by the forum State. Hall, supra, at 416. He reasons that, before the Constitution was ratified, the States had the power of fully independent nations to deny immunity to fellow sovereigns ”

“ Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. ----, ----, 111 S.Ct. 905, ----, 112 L.Ed.2d 112 (1991) , Indian tribes are sovereigns. Respondents' conception of the nature of sovereign immunity finds some support both in the apparent understanding of the Founders, and in dicta of our own opinions. [1] But whatever the reach or meaning of these early statements, the notion that traditional principles of sovereign immunity only restrict suits by individuals was rejected in Monaco v. ”

“ Such transactional immunity, in my view, steers a well-conceived middle path between, on the one hand, a position that no immunity statute can supplant the constitutional privilege and, on the other, a position that affords the individual the altogether too narrow protection of use immunity as applied to the very government that has compelled him to incriminate himself. ”

“ In nations which have made a false commencement, it would be found that the citizen, or rather the subject, has extorted immunity after immunity, as his growing intelligence and importance have both instructed and required him to defend those particular rights which were necessary to his well-being. ”

“ These decisions have also emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Forrester, supra, 484 U.S., at 224, 108 S.Ct., at 542; Malley, supra, 475 U.S., at 340, 106 S.Ct., at 1095; Harlow, supra, 457 U.S., at 812, 102 S.Ct., at 2735; Butz, supra, 438 U.S., at 506, 98 S.Ct., at 2910. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. ”

“ On this view, the test for removal should be broader, not narrower, than the test for official immunity. We agree.'
I see no necessity in this case for comparing the breadth of the law authorizing removal of cases from state to federal courts with the test 'for official immunity.' This case raises no question about official immunity from lawsuits for conduct of a government employee. Moreover, the difference between the breadth of a right to remove and a right to claim immunity is purely conceptual and cannot be measured by any means that I know about. ”

“ It is thus completely demonstrated that all the statements by which the public has been gulled for so many years, as to the almost complete immunity of the revaccinated Army and Navy, are absolutely false. It is all what Americans call “bluff.” There is no immunity. ”

“ The majority, resting primarily upon the statute’s language and canons of interpretation, holds that the statute’s reference to “immunity” moves with the times. As a consequence, the statute no longer allows international organizations immunity from lawsuits arising from their commercial activities. In my view, the statute grants international organizations that immunity–just as foreign governments possessed that immunity when Congress enacted the statute in 1945. ”

“ Once impaired by the recognition of a state immunity found to be excessive, restoration of that power is not likely to be secured through the action of state legislatures; for they are without the inducements to act which have often persuaded Congress to waive immunities thought to be excessive. ”

“ Fourth, A has an indefinite number of legal immunities, using the term ‘immunity’ in the very specific sense of non-liability, or non-subjection to a power on the part of another person. [18] Thus A has the immunity that no ordinary person can alienate A’s legal interest or aggregate of jural relations to another person; the immunity that no ordinary person can extinguish A’s own privileges of using the land; the immunity that no ordinary person can extinguish A’s right that another person, X, shall not enter on the land, or, in other words, create in X a privilege of entering in the land. ”

“ Mere use immunity, which protects the individual only against the actual use of his compelled testimony and its fruits, satisfies neither the language of the Constitution itself nor the values, purposes, and policies that the privilege was historically designed to serve and that it must serve in a free country. ”

“ Congress at that time and at the request of many of those organizations enacted the Immunities Act. Given the differences between international organizations and nation states, along with the Act’s purposes and the risk of untoward consequences, I would leave the Immunities Act where we found it–as providing for immunity in both commercial and noncommercial suits.
My decision rests primarily not upon linguistic analysis, but upon basic statutory purposes. Linguistic methods alone, however artfully employed, too often can be used to justify opposite conclusions. ”

“ Under our Basic Charters, just quoted, the sovereign right and power rests in the People, and the Government has no rights or powers, whatever, except as conferred by the People. QUESTION: Where have our State or National Governments obtained the right to force any medical remedy or operation upon citizens against their will and consent? Where have these governments obtained the right or power to force an infectious and deadly disease upon the human body in defiance of the will and the right of the citizen? ”

“ The earliest federal statute dealing with immunity is the Act of January 24, 1857, 11 Stat. 155, as amended by the Act of January 24, 1862, 12 Stat. 333. This legislation, relating to testimony before either House of Congress, furnished a model for later immunity provisions. Congress was careful to state precisely what it was for which immunity was given: 'No witness shall hereafter be allowed to refuse to testify to any fact or to produce any paper * * *.' 11 Stat. ”

“ Several of this Court's decisions make clear that much of our state immunity doctrine has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment. For example, it is well established that a State may waive its immunity, subjecting itself to possible suit in federal court. ”

“ Lamb, 738 F.2d 1005, 1008 (9th Cir.1984) . Because qualified immunity protects government officials from suit as well as from liability, it is essential that qualified immunity claims be resolved at the earliest possible stage of litigation. ”

“ A general immunity statute as proposed in chapter 5 on the courts is essential in organized crime investigations and prosecutions. There is evidence to indicate that the availability of immunity can overcome the wall of silence that so often defeats the efforts of law enforcement to obtain live witnesses in organized crime cases. ”

“ Raley demonstrates that the State may not substitute for the privilege against self-incrimination an intricate scheme for conferring immunity and thereafter hold in contempt those who fail fully to perceive its subtleties. A witness has, we think, a constitutional right to stand on the privilege against self-incrimination until it has been fairly demonstrated to him that an immunity, as broad in scope as the privilege it replaces, is available and applicable to him. ”