Can Congress Force Citizens to Waive their Constitutional Rights?

Date: July 30, 2017

In a recent troubling decision, the Sixth Circuit Federal Court of Appeals ruled—quite controversially—that the Seventh Amendment’s guarantee of a right to a jury trial has no application against the United States. This is remarkable proposition since the revolutionary generation viewed the right to a trial by jury as an essential protection against despotic government. To be sure, they saw this ancient right as providing a means of checking abusive government power. In fact, one of the chief grievances leading to the Revolutionary War was Parliament’s repeated enactment of legislation abrogating the common law right to a jury trial. As such, it is unthinkable that the revolutionary generation would have ratified the Bill of Rights on the understanding that the Seventh Amendment would not apply in cases against the federal government.

Yet that is precisely what the Sixth Circuit said in Brott v. United States. And still even more troubling, the Sixth Circuit held that the United States can claim absolute immunity against any lawsuit absent an express waiver of “sovereign immunity” through an act of Congress. But that simply cannot be true in a case where a litigant seeks vindication of constitutionally protected rights. Specifically, in Brott, landowners seek just compensation for a taking of their property under the Fifth Amendment. And the Supreme Court has repeatedly affirmed that the Fifth Amendment’s guarantee against uncompensated takings is a self-executing right—meaning that an owner is entitled to proceed in an action seeking just compensation, regardless of whether Congress has authorized the lawsuit. And as NFIB Small Business Legal Center recently argued in an amicus brief urging the Sixth Circuit to rehear this case en banc, our fundamental constitutional rights cannot be made subject to an act of legislative grace—for that would defeat the entire premise of our constitutional system.

Moreover, our amicus brief urges the Sixth Circuit to reconsider because it is inconceivable that government could manipulate our constitutional rights out of existence by requiring waiver of important rights as a condition of seeking judicial review. As such, the initial three judge panel decision in this case is truly disconcerting, for it suggests that the federal government may bar the court house doors for anyone wishing to maintain their constitutional rights. And that simply cannot be. As they say, for every right there must be a remedy—which means small business owners should have an unconditional right to vindicate their rights in court.

In any event, this seems like a case that may be destined for the Supreme Court. It certainly raises a deeply important question of constitutional law. For more commentary, check out this post discussing our earlier filing.

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