Live After Quit

Sovereign Immunity Is Antilaw: The State Must Make Restitution to Its Victims

The doctrine of sovereign immunity1 is the antithesis of libertarianism.2 Immunity from the consequences of its actions makes the state (i.e., those who work for it) so very dangerous. A private party who causes manifest measurable harm to others can be sued, if not prosecuted, for that harm. Sovereign immunity short-circuits this vital feedback mechanism that provides strong incentives to refrain from further such harm. To the extent that state agents cannot be sued, and may even be rewarded, for bad behavior, they will continue to harm their citizens with impunity. The removal of sovereign immunity is necessary if no one is to be “above the law.”

Currently, in the unlikely case that someone does successfully “fight city hall,” the guilty parties are seldom the ones who pay. As a case in point, the $27 million settlement paid to the family of George Floyd came not from the pocket of the police officer the court ruled guilty of Floyd’s death3 or the police high command that authorized the restraint technique applied with deadly result, but rather from the Minneapolis taxpayers, none of whose knees were on Floyd’s neck.4

Since the officer in question presumably did not have $27 million with which to pay such a settlement, removing sovereign immunity would require all those working on behalf of the government to carry liability insurance. If physicians must carry malpractice insurance and employees in fields ranging from banking to janitorial services must be bonded, for what reason should government officials be spared such requisites? While these insurance costs would likely discourage many people from seeking government employment, anyone who considers our current government to be too large and powerful would consider this outcome desirable.

What makes ending immunity necessary is that the cash nexus so characteristic of private economic transactions is not present in the public sector. In the private sector, if I am not satisfied with a product I purchase, I have several options: seeking a refund, exchanging my defective product for a nondefective one, or ceasing to do business with those merchants and dissuading as many people as I can from transacting with them as well. Those potential consequences are likely to bring most businesses in line. This option is basically not available in any meaningful way for government-provided services, since we are forced to pay through taxation for what government provides regardless of whether we are satisfied with it or not, or even whether we use it or not.

Let’s look at what is universally seen as the most important function of the government—protection of life and property. In the spring and summer of 2020, mayors of dozens of large American cities failed to fulfill this most important function, ordering their police to stand down as people rioted, causing dozens of deaths and billions of dollars in property damage. In New York City, for instance, “not only did the city brutalize protesters exercising their First Amendment right to assemble, but it also stood by as throngs of nonpolitical actors rampaged the city’s storefronts.”5 Risks to residents and property damage in and around protests paled in comparison to the widespread looting in New York, yet the police responses to nonideological rioting were markedly slower. Would then mayor Bill de Blasio and his police commissioner have been so derelict in their most important duty had they known they would have had to pay damages out of their own pockets?6

A second example highlights the governmental response to covid-19. Had key public-health officials, governors, and mayors not been immune from liability for the consequences of their policies, we might not have seen them arrogantly stand between doctors and their patients by suppressing legally approved drugs such as ivermectin and thus increase the number of deaths and hospitalizations caused by a virus spawned in US government–funded labs.7 Nor would they have severed people from their means of sustenance through lockdown policies based much more on politics than on science. They are at least as guilty of malpractice as any doctors successfully sued for their errors.

Finally, the state has managed to confer its own sovereign immunity on private-sector actors. Traditionally, companies could be sued for irreversible harms caused by their defective products. For example, Vioxx, a pain-relief and anti-inflammatory drug produced by Merck, was found to have played a role in causing twenty-seven thousand heart attacks. Merck was sued and settled for $4.85 billion (roughly 12 percent of its annual revenue). This result was consistent with the principle that those who harm others have to compensate their victims.

This principle appears to have been completely jettisoned with regard to vaccine manufacturers. Breaking the link between causing harm and making restitution has been enshrined in law by the 1986 National Childhood Vaccine Injury Act (NCVIA). While claiming that one of its goals is to “ensure the production and procurement of safe and effective vaccines,” the act’s provision that “no vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death” does not exactly create incentives conducive to that outcome. We want to incentivize the production not of any and all vaccines, but of safe and effective vaccines. If manufacturers make vaccines that are unprofitable because of the insurance premiums that must be paid to cover the liability for those injured by those vaccines, then those particular vaccines have failed the market test. For that reason, polio-vaccine pioneer Dr. Albert Sabin, who cannot be dismissed by any honest and sane person as an “antivaxxer,” opposed laws like the NCVIA. In the words of economist Barry Brownstein, “the best way to ensure vaccine safety is to expose pharmaceutical companies to the full costs of any mistake and not let any company without proper insurance near a human body.”8

This principle that no one should be above the law applies universally. If car manufacturers are held liable for faulty cars that lead to excess injuries and deaths, you will get fewer cars, but safer cars. If vaccine manufacturers are held liable for faulty vaccines that lead to injuries and deaths, you will get fewer vaccines, but safer vaccines. And if those charged with enacting and enforcing laws can be held liable for failure to protect and violation of rights, you will get fewer laws, but more rights.

While the principle is clear, the problem is the implementation. Now there is the need for libertarian legal scholars to develop ways of implementing these principles. This will not be simple, as many cases will be far from black and white. In addition, we will need many more judges who have internalized this principle than are likely to be turned out by our law schools in their current state. Nonetheless, even imperfect implementation should prove far superior to the current situation of nearly total government immunity. If we can accomplish that, we can begin the process of undoing at least a century of damage state that actors not bound by law have done to this country.

1. “The legal doctrine of sovereign immunity provides a ruling government body with the option to choose immunity from civil lawsuits or criminal prosecution. This means no person can sue the government without having the government’s consent to do so.” “What Is Sovereign Immunity?,” Feldman and Feldman, July 8, 2020, https://feldman.law/news/what-is-sovereign-immunity/. 2. As Erwin Chemerinsky states in his authoritative takedown of this doctrine on constitutional grounds, “The principle of sovereign immunity is derived from English law, which assumed that ‘the King can do no wrong’…. A doctrine derived from the premise that ‘the King can do no wrong’ deserves no place in American law.” 3. Obviously, the prison sentence entailed by that guilty verdict did extract some accountability from the officer in question and from other officers in similar situations. 4. Shifting liability from entire states to individual employees removes what Chemerisnky sees as the most common argument in favor of sovereign immunity in recent cases before the Supreme Court, one which he does not see as a good enough argument, in any event. 5. Clearly many of the rioters were opportunists, but in contrast to Bolger, I saw a great deal of evidence that political motives were in play here too. 6. Indeed, several judicial precedents specifically deny the existence of police responsibility to protect specific property and lives. See Warren v. DC, DeShaney v. Winnebago, and Town of Castle Rock v. Gonzales, the last two of which are discussed in a 2018 article by Ryan McMaken. 7. Any drug approved for use by the FDA for any condition can legally be used at physicians’ discretion to treat any other condition they deem it useful for in their professional opinion. This is known as “off-label use.” Applying the results of a Brazilian study to the latest CDC data (79,696,994 total cases reported, 4,580,996 total new hospital admissions and 972,550 total deaths reported as of March 23, 2022), suggests that as many as 700,000 US deaths could be attributed to suppression of ivermectin use. 8. This quote is a rewriting of libertarian law professor Richard A. Epstein’s application of this principle to the petroleum industry.