Can We Sue the Government To Prevent More Shutdowns?
Congress passed a budget resolution last week to end the 16-day shutdown, bring federal employees back to work and get the government up and running again. The consequences of the shutdown were severe, with an estimated $24 billion lost from the economy which will result in stalled growth and slower job creation in an economy that is still recovering from the recession.
However, the resolution only funds operations until Jan. 15, meaning we could be in for a sequel in three short months. Could the people of the country file a lawsuit against Congress to stop the government from shutting down again? In a word, no.
Even if citizens are directly harmed by the shutdown, or by a law for that matter, losing money or losing their jobs entirely, there’s no way to bring a lawsuit unless there is a constitutional violation.
Under most circumstances the federal government and its officials cannot be sued for damages for carrying out their duties under the principal of sovereign immunity. There are certain exceptions but they don’t have anything to do with how Congress operates (or fails to operate) the government.
The concept of federal sovereign immunity itself is not enmeshed in the Constitution, notes Vicki C. Jackson, currently a law professor at Harvard University, in a 2003 paper for Georgetown Law titled “Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence.” In fact, she points out, some scholars believe that the rights enumerated in the Bill of Rights, and particularly the First Amendment right to petition, should allow torts to come against the federal government without its consent.
“Yet such accounts, persuasive as they may be on how the Constitution should have been interpreted, are faced with the remarkable staying power of the idea of federal sovereign immunity,” Jackson writes.
Remarkable Staying Power
Lawsuits can be and are frequently brought against federal officials, but those consist of challenges to a law’s constitutionality — in the landmark Obamacare Supreme Court case, for example, a business federation named Kathleen Sebelius, secretary of the Department of Health and Human Services, in its lawsuit because she headed the office in charge of implementing the law. The business organizations was arguing that the health reform’s individual mandate to buy insurance was not authorized by the Constitution, among other claims.
There was one recent example of a lawsuit against Congress, but it barely got out of the starting gate. Last year the nonprofit Common Cause, along with several members of the House of Representatives, took the highly unusual step of filing a lawsuit against the Senate, arguing that its use of the filibuster violates the Constitution because it defies the principle of majority rule.
Named as plaintiffs in the suit were three undocumented immigrants who claimed they were harmed by the practice because Senate Republicans were filibustering a vote on a bill that could have provided them with a path to citizenship. The House members also argued that their votes were rendered meaningless by the Senate’s obstructionist tactics.
The lawsuit never got a full airing in court because a judge dismissed it for lack of standing by the plaintiffs, and further criticized it for asking the judicial branch to overstep its bounds by weighing in on internal Senate rules in what it deemed would be a violation of the separation of powers.
In our hypothetical shutdown lawsuit, technically the government did not close because of an act of Congress, but because Congress failed to act to pass a budget resolution to fund operations. Even in the event that a court could somehow intervene in Congress’ internal procedures and force a vote on a budget package, members could still vote against it and keep the money spigot turned off.
In any case, citizens who don’t like the job that their elected officials are doing have a much easier and more straightforward way to intervene: Vote them out of office.