Sovereign Immunity in a Constitutional Government: The Federal Employment Discrimination Cases.

Very early in our history we took steps to insure that the.rule of law, as expressed in the Constitution, would prevail over the mortals who run our government. Yet even as the concepts of rule of law and judicial review came into ascendancy, we also harbored the sovereign immunity doctrine as a restraint on judicial power and as an apparent repudiation of the rule of law. The inherent antagonism between the rule of law and the sovereign immunity doctrine has produced much mischief in our courts...this Article will argue that the sovereign immunity doctrine is not anticonstitutional, but rather reflects the Constitution's allocation of power among the three branches of government. Section I is devoted to an intensive consideration of one area of the law-employment discrimination suits against federal officers-where application of the sovereign immunity doctrine has generated considerable confusion and attendant injustice. Sections II and III will develop the separation of powers rationale for sovereign immunity, showing how the immunity principles adopted by the Supreme Court implicitly define the decisionmaking powers of the separate branches.