A curious case about to be decided by the Supreme Court of Georgia could have profound implications for constitutional government in the United States.
In 2012, the state legislature passed a so-called “fetal pain law,” which bans abortions after 20 weeks and grants district attorneys access to patients’ medical records. Three doctors promptly filed a lawsuit against the state, arguing that the law violates individuals’ privacy rights under the state constitution. Claiming “sovereign immunity” from litigation, officials in the state argued that its legislature cannot be sued by citizens who claim they have been harmed by its unconstitutional laws. The case—Lathrop v. Deal—has taken five years to wind through the Georgia court system. In the process it has created some unlikely alliances among special interest groups—including a pro-gun group and human rights organizations—and sparked an intense debate about state immunity from citizens’ lawsuits.
While many states have enacted legislation barring or capping damages claims against states, Georgia’s case is vexing in that the doctors are not seeking money but relief from an unconstitutional law. The central question at stake has its roots in a 1991 amendment to Georgia’s constitution, which made the legislature responsible for waiving sovereign immunity for the state, its agencies, and its officials. That means state officials cannot be sued except under especially egregious circumstances—if they neglect their ministerial duties or “act with malice.” Yet the issue in this case, the appellants argue, is not that state officials refuse to enforce a statute. It’s that they are currently enforcing an unconstitutional one.
And that’s exactly the rub. The doctors and their lawyers argue that if the principle of sovereign immunity applies in this case, the state’s system of checks and balances will collapse. During oral arguments before the Supreme Court in January, Don Samuel, a lawyer for the appellants, said it would be “an astounding proposition” for the justices to “single out this state as the only state in the entire country in which the Bill of Rights is subservient to the whims of the legislature.” The court has set for itself a deadline of July 2 to hand down a decision in the case.
The principle of sovereign immunity in the United States is a vestige of the English common-law system. It is derived from the legal maxim, Rex non potest peccare: the king can do no wrong.
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In American jurisprudence, however, sovereign immunity has been less about defending an infallible sovereign and more about protecting the public purse.
One of the first major cases in the Supreme Court’s history, Chisolm v Georgia, was a rejection of sovereign immunity. The year was 1793, and the newly independent nation had racked up a daunting bill for revolutionary war debts. South Carolina’s Alexander Chisolm, the executor of Captain Robert Farquhar’s estate, successfully sued Georgia for failing to pay for supplies the captain had sold the state during the war. Georgia argued it was a sovereign entity that could not be sued without its consent, but the court rejected that argument. Failing to find any existence of a sovereign entity in the country’s new Constitution, one justice wrote, “The sovereign, when traced to his source, must be found in the man.” According to the Court, the American people were sovereign—not the states, and not the federal government.
Not long after this ruling, fearing that the federal government would encroach on states’ rights and order them to pay out other debts incurred during the war, 12 of the existing 15 states ratified the 11th Amendment to the Constitution—the first after the Bill of Rights—which made the states immune from suits by citizens of other states. The amendment reversed the Chisholm decision, but it was notably silent on the question of citizens suing their own states. This silence has sparked intense debate in courts and in academia about the extent to which sovereign immunity exists in US law—including whether it exists at all.
Contributing to this debate is the fact that the United States Constitution did not explicitly provide for immunity for the federal or state governments, and its application varies within states based on their respective laws and constitutions. But some of the founders did leave a few hints as to how they believed the idea of sovereign immunity fit within the republican framework of government they were creating.
“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,” Alexander Hamilton wrote in Federalist No. 81.
Justice Anthony Kennedy invoked Hamilton’s rationale in the 1999 Supreme Court case Alden v. Maine, which decided by a slim margin that Congress could not override a state’s sovereign immunity. Allowing them to do so, Kennedy ruled, “could create staggering burdens” for the states and alter the distribution of power between the federal and state governments which was “not contemplated by our constitutional design.”
Sovereign immunity at the federal level has thus been invoked to preserve the balance of power between the federal and state governments, while ensuring neither has to empty its pockets to settle burdensome lawsuits. This might seem to apply to the current issue in the Georgia, but in fact it does not: The doctors’ case does not deal with monetary damages or a dispute based on federal law. Rather it deals with a law that allegedly violates the state constitution. That’s what makes the state’s argument so troublesome for anyone affected by laws the state may pass in the future.
Generally speaking, there are few exceptions to state sovereign immunity unless the state decides to waive it. Citizens can bypass this prohibition by suing specific government officials, rather than the state itself, for enforcing an unconstitutional law. The doctors are therefore suing the district attorneys and the governor—as representatives of the state—for enforcing Georgia’s abortion law. But the state’s officials argue that the 1991 constitutional amendment precludes even this option, citing a 2014 Georgia Supreme Court case that set limits on the extent to which citizens can sue government employees in their official capacities. That case, however, did not deal with alleged constitutional violations.
If citizens can’t sue state officials, “there’s no way to keep an unconstitutional law from going into effect,” says Erwin Chemerinsky, a constitutional lawyer and dean of the University of California, Irvine, School of Law. While Georgia’s case may appear to be an extreme application of the doctrine, he believes sovereign immunity has gone too far even on the federal level. Sovereign immunity “means you’re protecting the state as an institution over people that have been injured by the state,” Chemerinsky says.
At the end of the 20th century, several US Supreme Court cases grappled with the issue of states’ sovereign immunity and affirmed the principle by slim margins. As in Alden v. Maine, the decisions were split on ideological lines, with the Court’s more conservative justices supporting states’ sovereign immunity. The cases relied on the 11th Amendment for evidence of sovereign immunity, but the amendment’s silence on citizens suing their states in federal courts prompted harsh critiques from the Court’s more liberal justices. As Justice Souter wrote in a dissenting opinion, “The generalized principle of immunity that today’s majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed.” His dissent questions the very foundations of sovereign immunity, reminding the court that Hamilton’s Federalist No. 81 and other “isolated statements by the Framers” are not sufficient legal arguments.
The divided opinions among academics and judges on the question of sovereign immunity illustrates how this vestigial concept evolved at the federal level. But unlike the United States, Georgia’s sovereign immunity has been enshrined in its own constitution since 1991. But if that provision extends as far as the state now claims, the Georgia constitution will be little more than a set of suggestions for lawmakers to follow.
Georgia is not the only state to have encountered this brazen claim of immunity against citizen lawsuits that challenge the constitutionality of a law. Other states’ supreme courts have repeatedly held that sovereign immunity does not bar constitutional challenges. In a 2013 case in Kentucky, cited by the appellants in Georgia, one justice explained, “To hold that the state has immunity from judicial review of the constitutionality of its actions would be tantamount to a grant of arbitrary authority superseding the constitution, which no law or public official may have.”
If Georgia’s Supreme Court sides with the state, all Georgians will be left with little recourse to hold their legislature accountable for laws that violate their constitutional rights. This looming possibility prompted groups on both sides of the aisle to come out in opposition to Georgia’s claim of sovereign immunity in the case of the abortion law. Organizations as ideologically varied as the Southern Center for Human Rights, the Anti-Defamation League, GeorgiaCarry.org, and the Goldwater Institute filed a joint brief supporting the appellants.
“The state’s argument is the courthouse doors should be shut for anyone who wants to enforce the Georgia constitution unless the legislature says it’s okay,” says Jim Manley, lawyer at the Goldwater Institute, a libertarian think tank that files litigation all over the country. It has ongoing cases in other states challenging laws on constitutional grounds, but Manley says he has never encountered a state claiming immunity to the extent that Georgia is.
One purported “remedy” for the doctors who wish to overturn the abortion law is simply to break it and then argue for its unconstitutionally during their defense at trial. But if that’s the only remedy for challenging constitutional claims, exercising constitutional rights in Georgia would be risky business.
“[If] after countless violations of the statute, the state then decides to come after you, the stakes are much higher,” says Manley. In the meantime, Georgians would be operating under “a cloud of uncertainty that creates a chilling effect on constitutional rights.”
The doctors of Georgia are thus left in a bind. They could try their suit in federal court, as the state suggested during oral arguments before the state Supreme Court. The irony of that suggestion was not lost on one justice, who asked the state lawyer, “So your theory is that Georgians who put rights in the Georgia constitution understood that those rights would only be enforceable in Yankee courts?”
Although the Georgia case does not threaten to expand the doctrine of sovereign immunity on a federal level, it shows how much is at stake when sovereign immunity is invoked to counter constitutional claims at a state level. If the court sides with the appellants, they will at least have the chance to prove their constitutional claims in court.
But if the court rules for the state, Georgians will be left with two unappetizing options: push for a constitutional amendment, or for a new statute in the legislature that would change the way sovereign immunity is used. The former is a high bar, and the latter would require a willing general assembly. Barring those two outcomes, the legislature of Georgia will be able to pass and enforce whatever laws they want to, secure in their confidence that the constitutionality of such laws will not come under challenge by any citizen in the state.
