Can the United States Claim Sovereign Immunity Against the Bill of Rights?

Date: January 10, 2018

In our last post we argued that the Supreme Court should open federal court house doors for takings claims against state and local governments. In another pending case, the Supreme Court could also loosen restrictions on where takings claims may be brought against federal actors. Currently the Tucker Act requires that takings claims for more than $10,000 must be brought in the Court of Federal Claims in Washington D.C. That requirement is anomalous because it often forces an aggrieved property owner to choose between advancing a takings claim in the Court of Federal Claims and pursuing other potential claims in another federal district court—a catch 22 in many cases. Brott v. United States now asks whether the Constitution even permits a takings claim to be brought the Court of Federal Claims.

Specifically, the Brott petition argues that because the Court of Federal Claims is an Article I Court, landowners should not be required to bring their takings claims in that venue. Instead, the aggrieved landowners argue that they are entitled to bring their claim as an original matter in an Article III district court. But the Brott petition raises an additional question—one of even more profound importance: whether landowners should be allowed a right to jury trial. In the decision below, the Sixth Circuit Court of Appeals rejected Brott’s argument that landowners are entitled to a jury trial. The Court of Appeals held that the Seventh Amendment right to a jury trial simply has no application against the federal government because the United States has absolute sovereign immunity from lawsuits.

The Sixth Circuit rested its decision on a long-line of cases holding that Seventh Amendment rights do not attach in suits against the United State. But all those cases concerned statutory claims—not constitutional rights. As a matter of first principles, the right to prosecute a constitutional claim derives not from an act of legislative grace, but from the Constitution itself. As the Supreme Court said in Martin v. Hunter’s Lessee, the lower courts must be authorized to hear cases concerning federal rights. Moreover, as a matter of originalism, the historical record suggests strongly that the revolutionary generation viewed the Seventh Amendment as a bulwark against despotic government. It is therefore inconceivable to think that the federal government should be allowed to claim immunity against the Seventh Amendment.

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