The Rehnquist Court’s so-called “Federalism Revolution” has received no shortage of scholarly attention. Under the conventional narrative, the Court pushed back against the encroaching tide of federal power in three spheres: it limited the scope of Congress’s Commerce Clause authority, struck down laws infringing upon state sovereignty under the Tenth Amendment, and expanded the doctrine of state sovereign immunity to curtail federal power to subject unwilling states to private lawsuits. Yet in late 2010, the Court issued a decision that confirms the muted impact of the Rehnquist Court’s rulings in the last of the three spheres. In Sossamon v. Texas, the Court acknowledged that even though state sovereign immunity prevents Congress from unilaterally subjecting states to private suits without their consent, Congress retains substantial power to purchase the states’ consent under the Spending Clause.
The Court in Sossamon proceeded to disallow a private damages action against Texas on different grounds, however. The Court held that even though the state had consented to be sued as a condition of its acceptance of certain federal funds, such a general waiver of immunity from suit was not enough to allow a damages action to proceed because the state had not expressly consented to be sued for monetary relief.
This “double immunity” requirement—that a sovereign must not only waive its immunity expressly from suit but also from monetary claims—is of recent and undocumented vintage. Yet already it has had an enormous impact, barring private litigants from obtaining remedies for injuries visited upon them by a sovereign defendant even though the sovereign has already agreed to be sued. The rule’s impact is trans-substantive too, insulating state and federal sovereign entities alike from monetary judgments in a wide spectrum of cases involving religious liberties, discrimination on the basis of disability, statutory privacy rights, and government destruction of private property. This Article explores the origins and effects of the Court’s double immunity rule, and ultimately proposes a new approach to determining whether a private party may sue a sovereign for monetary relief.