The Appropriations Power and Sovereign Immunity
Reprinted with permission of Michigan Law Review.
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English common-law decisions on sovereign immunity. After (and in part because of) the Bankers’ Case, settling claims against the Crown became a function of Parliament, swept up within its newly won powers over finance and appropriations. After examining comparable developments in the American colonies and during the Confederation period and the formation of the Constitution, the Article demonstrates that the Appropriations Clause embedded in the Constitution the principle of congressional supremacy - and a resulting lack of judicial power - over monetary claims against the United States, a point recognized by early cases and commentators. As such, the Appropriations Clause provides a textual basis for the federal government’s immunity from suits on claims seeking money damages.