Tidmarsh and Figley on The Appropriations Power and Sovereign Immunity

The Appropriations Power and Sovereign Immunity is a new article by Jay Tidmarsh, Notre Dame Law School and Paul Figley, Washington College of Law, American University. It will appear in the Michigan Law Review (2009). Here's the abstract:

Historical discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence -- or non-existence -- of sovereign immunity begin with the English and American common-law doctrines of sovereign immunity, and ask whether the founding period altered that doctrine. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690-1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English common-law decisions on sovereign immunity. After (and in part because of) the Bankers' Case, settling claims against the Crown became a function for Parliament, swept up within its newly won powers over finance and appropriations. The principle of legislative supremacy over appropriations effectively replaced the principle of common-law sovereign immunity. Examining the salience of this thesis for the American colonies, the Confederation, and the formation of the Constitution, the article demonstrates that the Appropriations Clause of the Constitution embedded a principle of congressional supremacy over the handling of monetary claims against the United States. The view that the Appropriations Clause prevented judicial determination of monetary claims against the United States was shared in early cases and by early commentators, whose views have since disappeared in discussions over the scope of sovereign immunity.