During the campaign for the midterm elections, we’ve heard some seriously incendiary rhetoric from Republican leaders, including Donald Trump, against the Democratic candidate for the senate seat of Michigan, Abdul El-Sayed.
The US president has called El-Sayed a “jihadist” and a member of the Muslim Brotherhood, a designated foreign terrorist organisation under US law.
There is no evidence to support these claims. But the nature of the US president’s remarks suggests an intent to harm El-Sayed’s reputation among Michigan voters.
In many circumstances, El-Sayed would have a strong claim for defamation in relation to these statements. But it’s unlikely that a court could consider a case against the president or other members of the federal government. This is due to the US Supreme Court’s doctrine of sovereign immunity, which bars defamation claims against federal employees.
In its most basic form, immunity means exemption from legal process. In the US legal framework, sovereign immunity is based on Crown immunity. This is a relic of English common law grounded in the principle that “the king can do no wrong”. It still exists in the UK, in that the reigning monarch cannot be sued for defamation. But the Crown – meaning the government and its servants – certainly can, under the Crown Proceedings Act of 1947.
But the US Supreme Court embraced the concept as doctrine – applicable to the federal government – in the 19th century. Congress codified the doctrine in the 1940s.
Sovereign immunity, as understood by the Supreme Court and reflected in federal law, means that the federal government “may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction”. The US has waived sovereign immunity in some specific cases, but it retains this immunity for defamation claims.
The way this works under federal law is that the Department of Justice (DoJ) intervenes in a lawsuit against a federal employee sued for defamation by filing a certification that the employee was acting within the scope of their employment at the relevant time. When this happens, the case is removed to federal court, the employee is dismissed from the action, and the US is substituted in as the sole defendant.
Because the US has not waived sovereign immunity for defamation, the case is then dismissed, because courts lack the legal authority to hear the case.
To date, the Supreme Court has yet to rule on the question of whether members of Congress or the president are federal “employees” for the purposes of sovereign immunity. But the federal circuit courts that have ruled on this question hold that legislators are protected. And one federal circuit has expressly held that the president also enjoys such protection.
These courts have also adopted a broad interpretation of sovereign immunity in the context of defamatory comments made by federal legislators on social media. They have held that posting on social media is within the scope of their employment. It is judged to fit within the “wide range of legitimate ‘errands’ performed for constituents” that are “calculated to serve the interests of … constituents by informing them of Congress members’ views regarding a topical issue”.
What this means in practice is that members of Congress, and potentially the president, are above the law when it comes to defamation. And they remain so even when what they say may mislead the electorate regarding issues that impact how people vote.
This highlights the paradox of sovereign immunity. In a democracy founded on the principle that the people are the sovereign, sovereign immunity permits agents of the government – those who serve the people – to evade liability for legal wrongs committed against these very people.
So regardless of the merits of a claim, sovereign immunity bars the courts from evaluating it. This effectively shields federal employees from the laws that apply to everyone else.
Bad for American democracy
One of the most obvious problems with sovereign immunity is that it is incompatible with the primary tenet of the American constitutional framework that no one is above the law. And it’s particularly perplexing that the Supreme Court derived sovereign immunity directly from the British notion of Crown immunity, given that the US was founded on the express rejection of the English monarchy.
Criticism of sovereign immunity by judges is a common theme in this context, particularly its origins in Crown immunity. As noted by a federal judge in 1954, while the US draws much from the British on the subject of immunity, “In Britain the government – the Crown and Parliament – is the sovereign” and in the American system, “the people are the initial and also the residual sovereign”. He concluded that: “After some variations the Supreme Court has in recent years declined to gel the basic theory of sovereignty in our system.”
And as one federal judge highlighted in 2011: “Two hundred and thirty-five years after we rid ourselves of King George III and his despotic ascendancy over colonial America, we cling to a doctrine that was originally based on the Medieval notion that ‘the King can do no wrong’.”
The Supreme Court’s decision to cling to the doctrine of sovereign immunity has resulted in a bleak reality in the current political climate for Americans. “We the people” have little or no recourse against defamatory attacks by those tasked with upholding the laws of the US and the federal Constitution.
Eliza Bechtold does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.