We’re starting to see a rise in use of the phrase “sovereign immunity” over the past few days, since Attorney General Barr decided to try to use it to make a defamation case against Trump go away.
Really; that’s not a joke.
The basic idea is that if Barr can convince a court that the President insulting a writer who’s accused him of having raped her years before he became President is a job-related activity for the Presidency, then they can convert that case from being against him to being against the government.
Since he’s just an employee doing his job, ya’ know?
And the doctrine of sovereign immunity means that the State gets to decide whether it’s subject to legal actions.
And then the lawsuit magically disappears.
This is clearly insane.
But it might actually turn out to be legal.
Because the judicial branch in the United States decided long ago to create “sovereign immunity”, which allows them to dismiss any case against the government unless there is a law specifically stating that the government is subject to judicial action on that matter.
The judiciary here is so lazy.
The thinking here seems to be that:
- the State is sovereign
- so the authority of law originates from the State
- and if the State had wanted to be bound by a law it would have said so
- but if it didn’t say so explicitly it must not be
We can see in the current foolishness with Barr that this leads to absurd results, but even on its own terms it’s bad thinking.
Because the State is not the root of sovereignty.
One of the foundational ideas in the United States is that sovereign legitimacy derives from the collective consent of the citizenry, not from the State itself; the State derives its legitimacy and therefore sovereignty from the consent of its people.
The authority of law in the United States originates in the consent of the citizens; the State is itself a derived authority.
Which means the State is not sovereign, and should absolutely not have any presumption of immunity from its own laws.
Which is good, because the very idea of sovereign immunity is deeply authoritarian and anti-democracy.
Because, much like “standing” (which is the other major way the judiciary here tries to get out of doing its job), this means that no one is in a position to force the State to obey its own laws.
And that never ends well.