6 ms·

> It would mean that you're not allowed to challenge the government in court. IANAL, but is it not true that you can only sue the government to the extent that

> It would mean that you're not allowed to challenge the government in court. IANAL, but is it not true that you can only sue the government to the extent that it lets you? Can a lawyer chime in on the extent of sovereign immunity?

DannyBee 14y ago
You can generally only sue the government to the degree it lets you. In the US, there are various torts acts, etc. There are exceptions to sovereign immunity, but it's not worth getting into. In practice, when it comes to constitutional rights, this doesn't matter as much as you think, because the government will sue you if they really care. IE they file criminal or civil charges against you for something you are not doing because you believe it to be unconstitutional.
white_devil 14y ago
> IANAL, but is it not true that you can only sue the government to the extent that it lets you? It doesn't really matter what laws say about that. Your only recourse against wrongdoing by the government is the justice system run by the very same government. It's certainly within its power to decide not to punish itself. This is perhaps something to think about.
- rayiner 14y ago
  The government isn't a monolithic entity. It's composed of people who have often differing interests to each other. The justice system is run by the government, but that didn't stop e.g. the Supreme Court from ordering the bush administration to give process to the Guantanamo prisoners (and the administration complied!)
  - unclebucknasty 14y ago
    Yeah, and of course this is just fundamental separation of powers by design, else the government would be exactly a monolithic entity. But, then this type of victory seems rare these days, as the Executive has grabbed so much power since 9/11. Seems the balance has been upset.
    - rayiner 14y ago
      The "power grab" since 9/11 is mostly imagined. There is very little the President can do now that he couldn't in 1970, and as a practical matter he can do a lot less than he could in 1955.
      - unclebucknasty 14y ago
        Not true. In fact, that's a pretty astounding statement. Executive power has expanded greatly since 9/11. The PATRIOT Act alone vastly expanded law enforcement capabilities. Law enforcement, of course, being of the Executive and including the DOJ. In fact this thread likely wouldn't need to exist if not for the expansion of NSL under the PATRIOT Act. Many of the rights that we ceded as citizens were given over directly to the Executive. Remember, the Executive branch is more than just the President, but includes all departments under his purview. I think if there is a myth it is among those who believe that nothing has changed simply because some of these mechanisms (such as NSL and FISA) did exist prior to 9/11. But, in addition to new powers, it is the expansion, interpretation, and application of existing powers that have also represented a large share of the power grab. This started with Bush after 9/11 with his adherence to the theory of the strong unitary executive. This is when we began to see the letters of his attorneys, which re-interpreted existing powers much more broadly and sought to justify unprecedented Executive actions retroactively. That there was never a trial indicates that they were, in fact, successful in their claims to additional power. Of course one can also point to launching pre-emptive wars as an unprecedented power grab--perhaps of the highest order. And, essentially, these powers continue to expand under Obama, up to and including the remarkable justification of drone strikes on American citizens.
        rayiner 14y ago
        This is mostly just "truthy." In reality, federal surveillance was dramatically higher during the Cold War (modulo improved technology), and the idea of the strong unitary executive dates to the founding of the republic. Stuff that you claim is "unprecedented" is anything but. The concept of "preemptive war" has no real distinguishing characteristic in an American history full of military interventions absent direct attack. There is nothing "remarkable" about the justifications for drone strikes against ostensible American citizens who have taken up arms against the U.S. and are not on U.S. soil. Skirting along a murky and untested line? Sure, but not "remarkable." There is no consensus among legal scholars on the issue, and it is not without precedent (there are records, of various reliability, of Americans who fought for the Nazis and were killed in the war).
rayiner 14y ago
That's true, but: 1) that doesn't prevent you from asserting defenses if you are sued; 2) the government's actions can effect a waiver of immunity in specific cases; 3) the government has waived immunity by statute in a very broad range of situations; 4) it doesn't stop you from suing government officials in their personal capacity. For example, if the government breaches a contract with you, you can sue it because the government has broadly waived immunity in contracts cases. You can sue federal agencies for their actions under the Administrative Procedure Act. As an example of (4) see: Bivens v. Six Unknown Named FBI Agents. Also, habeas corpus offers a way to challenge actions that result in detention without needing to sue the government per se.

DannyBee 14y ago

You can generally only sue the government to the degree it lets you. In the US, there are various torts acts, etc. There are exceptions to sovereign immunity, but it's not worth getting into. In practice, when it comes to constitutional rights, this doesn't matter as much as you think, because the government will sue you if they really care. IE they file criminal or civil charges against you for something you are not doing because you believe it to be unconstitutional.

white_devil 14y ago

> IANAL, but is it not true that you can only sue the government to the extent that it lets you? It doesn't really matter what laws say about that. Your only recourse against wrongdoing by the government is the justice system run by the very same government. It's certainly within its power to decide not to punish itself. This is perhaps something to think about.

rayiner 14y ago
The government isn't a monolithic entity. It's composed of people who have often differing interests to each other. The justice system is run by the government, but that didn't stop e.g. the Supreme Court from ordering the bush administration to give process to the Guantanamo prisoners (and the administration complied!)
- unclebucknasty 14y ago
  Yeah, and of course this is just fundamental separation of powers by design, else the government would be exactly a monolithic entity. But, then this type of victory seems rare these days, as the Executive has grabbed so much power since 9/11. Seems the balance has been upset.
  - rayiner 14y ago
    The "power grab" since 9/11 is mostly imagined. There is very little the President can do now that he couldn't in 1970, and as a practical matter he can do a lot less than he could in 1955.
    - unclebucknasty 14y ago
      Not true. In fact, that's a pretty astounding statement. Executive power has expanded greatly since 9/11. The PATRIOT Act alone vastly expanded law enforcement capabilities. Law enforcement, of course, being of the Executive and including the DOJ. In fact this thread likely wouldn't need to exist if not for the expansion of NSL under the PATRIOT Act. Many of the rights that we ceded as citizens were given over directly to the Executive. Remember, the Executive branch is more than just the President, but includes all departments under his purview. I think if there is a myth it is among those who believe that nothing has changed simply because some of these mechanisms (such as NSL and FISA) did exist prior to 9/11. But, in addition to new powers, it is the expansion, interpretation, and application of existing powers that have also represented a large share of the power grab. This started with Bush after 9/11 with his adherence to the theory of the strong unitary executive. This is when we began to see the letters of his attorneys, which re-interpreted existing powers much more broadly and sought to justify unprecedented Executive actions retroactively. That there was never a trial indicates that they were, in fact, successful in their claims to additional power. Of course one can also point to launching pre-emptive wars as an unprecedented power grab--perhaps of the highest order. And, essentially, these powers continue to expand under Obama, up to and including the remarkable justification of drone strikes on American citizens.
      - rayiner 14y ago
        This is mostly just "truthy." In reality, federal surveillance was dramatically higher during the Cold War (modulo improved technology), and the idea of the strong unitary executive dates to the founding of the republic. Stuff that you claim is "unprecedented" is anything but. The concept of "preemptive war" has no real distinguishing characteristic in an American history full of military interventions absent direct attack. There is nothing "remarkable" about the justifications for drone strikes against ostensible American citizens who have taken up arms against the U.S. and are not on U.S. soil. Skirting along a murky and untested line? Sure, but not "remarkable." There is no consensus among legal scholars on the issue, and it is not without precedent (there are records, of various reliability, of Americans who fought for the Nazis and were killed in the war).

rayiner 14y ago

That's true, but: 1) that doesn't prevent you from asserting defenses if you are sued; 2) the government's actions can effect a waiver of immunity in specific cases; 3) the government has waived immunity by statute in a very broad range of situations; 4) it doesn't stop you from suing government officials in their personal capacity. For example, if the government breaches a contract with you, you can sue it because the government has broadly waived immunity in contracts cases. You can sue federal agencies for their actions under the Administrative Procedure Act. As an example of (4) see: Bivens v. Six Unknown Named FBI Agents. Also, habeas corpus offers a way to challenge actions that result in detention without needing to sue the government per se.