Sovereign Immunity

The term “sovereign immunity” refers to a ruling body, such as the U.S. government, being immune from civil lawsuits or criminal prosecution. For example, sovereign immunity means that no one can sue the government without having the government’s consent. Sovereign immunity comes from British common law, which provided the idea that the King is immune from charges of wrongdoing. To explore this concept, consider the following sovereign immunity definition.

Definition of Sovereign Immunity


  1. The idea that the government is immune from charges of wrongdoing, and so no one can sue the government without its permission.


1350–1400         Middle English (immunite)

What is Sovereign Immunity?

Sovereign immunity refers to the idea that a government is immune from wrongdoing, either civilly or criminally. This is a way of protecting the government from having to constantly change its policies any time anyone takes issue with them. However, it is important to note that state governments are not immune from lawsuits brought upon them by other states or by the federal government.

Sovereign immunity falls into one of two categories:

  • Absolute Immunity: No one can sue a government actor, or “agent,,” for something he allegedly did wrong.
  • Qualified Immunity: The law shields a government agent from liability only if he meets specific conditions specified by law.

Absolute immunity protects the government from changes that could affect how the government runs in its entirety, provided the law allowed for a challenge to its actions. Absolute immunity similarly protects judges while they are acting in their judicial roles. For example, sovereign immunity would not apply if a judge murdered someone outside of his own house. It only applies to the actions he carries out while on the bench.

11th Amendment

The 11th Amendment to the U.S. Constitution states that:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

What this means is that the 11th Amendment provides sovereign immunity to state governments by prohibiting people from bringing federal lawsuits against their state governments. Put another way, the 11th Amendment prohibits federal courts from establishing jurisdiction, and hearing state actions brought by private citizens.

Examples of Sovereign Immunity Consent

Reading some sovereign immunity examples of times in which the government actually gave consent to sue may help shed light on an otherwise confusing sovereign immunity meaning.

One of these sovereign immunity examples of consent is the Federal Tort Claims Act (FTCA), which is a federal law that allows individuals to sue federal employees for misconduct. Another of these sovereign immunity examples of consent is the Tucker Act, a federal law that allows individuals to sue federal employees or the government itself for breach of contract.

Federal Sovereign Immunity

What federal sovereign immunity means, in a nutshell, is that an individual cannot sue the federal government as an entity unless the federal government says they can. However, the Federal Tort Claims Act (FTCA) allows individuals to sue federal employees for violating the duties involved with their role.

An individual who is interested in suing a federal employee must first determine if negligence was a factor. Then, that individual must determine whether he has permission to sue under the FTCA. If not, he may find his claim barred as the result of federal sovereign immunity.

Even if the individual determines that he can file his claim under the FTCA, there are still several qualifications his claim must meet so that federal sovereign immunity does not lead to the dismissal of his claim. It is recommended that you consult with an attorney knowledgeable in this process.

State Sovereign Immunity

The idea of state sovereign immunity is that no one can sue a state government in a federal or state court without having its consent. Originally, when the framers of the Constitution drafted the 11th Amendment, they meant for sovereign immunity to only extend to the federal government. However, the U.S. Supreme Court has since extended this idea to include state sovereign immunity as well.

As a result, state sovereign immunity exists even when someone sues a state under what would otherwise be a valid federal law. The Supreme Court has made it so that states oversee the defining of just how immune they are to lawsuits based on state law.

Congressional Abrogation

Congressional abrogation refers to the constitutional law that allows Congress to waive sovereign immunity under special circumstances. The term “congressional abrogation” means that Congress is allowed to “abrogate” or nullify the law in certain situations. Congressional abrogation allows a lawsuit to proceed against a state when the state does not consent.

Sovereign Immunity Example in the State of Maine

An example of sovereign immunity that resulted in a decision made by the U.S. Supreme Court occurred in 1999. Here, a group of probation officers sued the state of Maine – their employer – in 1992, alleging the state violated their overtime provisions as specified by the Fair Labor Standards Act.

However, the U.S. Supreme Court had only recently ruled in another case that states were immune from private lawsuits in federal court, and that Congress could not intervene. As such, the Federal district court dismissed the probation officers’ suit.

The group then attempted to sue the state of Maine again in state court, however both the state trial court and state supreme court held that Maine enjoyed sovereign immunity. As such, the law did not permit private parties to sue the state in state court either. The group then decided to appeal their case all the way up to the U.S. Supreme Court.

U.S. Supreme Court Decision

The U.S. Supreme Court then had to decide whether Congress could use its constitutional powers to abrogate a state’s sovereign immunity from private lawsuits in its own (state) courts.

In this example of sovereign immunity, the Court held divided opinions, but ultimately held that no, Congress’ constitutional powers could not be used to abrogate a state’s sovereign immunity. Specifically, the Court noted, the Constitution spells out the fact that, despite the federal government reigning supreme, the states still enjoy sovereign immunity.

In the Court’s own words, they wrote:

“Congress cannot abrogate States’ sovereign immunity in federal court; were the rule different here, the National Government would wield greater power in state courts than in federal courts. This anomaly cannot be explained by reference to the state courts’ special role in the constitutional design. It would be unprecedented to infer from the fact that Congress may declare federal law binding and enforceable in state courts the further principle that Congress’ authority to pursue federal objectives through state courts exceeds not only its power to press other branches of the State into its service but also its control over federal courts.

The constitutional provisions upon which this Court has relied in finding state courts peculiarly amendable to federal command, moreover, do not distinguish those courts from the Federal Judiciary. No constitutional precept would admit of a congressional power to require state courts to entertain federal suits which are not within the United States’ judicial power and could not be heard in federal courts.”

Related Legal Terms and Issues

  • Breach of Contract – A violation of contract through failure to perform, or through interference with the performance of the contractual obligations.
  • Jurisdiction – A territory in which the court has the right, power, and authority to administer justice by hearing and resolving conflicts.