The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework, which assumes that (1) the Constitution fixed a relationship between the sovereign people and their proxy national government; (2) the terms of that relationship necessarily constrain and guide how the national government can act; and (3) those terms allow each branch of the national government to act as proxy sovereign for the people, with equal authority but with different responsibilities and constraints.
The proxy-sovereign framework suggests that federal sovereign immunity jurisprudence wrongly entrusts Congress to act alone as sovereign, when the executive and the judiciary also have proxy sovereign powers and roles. A more faithful federal sovereign immunity doctrine would allow each branch of the national government to exercise its proxy-sovereign authority to waive immunity in accordance with that branch’s constitutional design. This new, more constitutionally faithful configuration of the federal sovereign immunity waiver power better supports features of current immunity jurisprudence, requires some changes to current immunity practice, and ameliorates the commonly criticized feature of sovereign immunity—that federal sovereign immunity is a government defense virtually impenetrable by the people.
- sovereign immunity,
- federal sovereign immunity,
- separation of powers
Available at: http://works.bepress.com/sarah_brinton/1/