Immunity

Im·mune
/iˈmyo͞on/

adjective
1. totally or partially resistant to a particular infectious disease or pathogen.
"they were naturally immune to hepatitis B"

2. protected or exempt, especially from an obligation or the effects of something.
"they are immune from legal action"

Sometimes the law does not apply.

Definition

- Legal Immunity: 

Legal immunity, or immunity from prosecution, is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases. Such legal immunity may be from criminal prosecution, or from civil liability (being subject of lawsuit), or both. The most notable forms of legal immunity are parliamentary immunity and witness immunity.

- Immunity: 

Immunity refers to legal protection that exempts a person from liability, punishment, or legal action that would otherwise apply. Immunity can be granted in various contexts, including criminal and civil cases, administrative proceedings, and legislative inquiries. For example, see "immunity from prosecution"

The concept of immunity has its roots in the common law, but it has been codified in various statutes and legal codes. For example, the U.S. Constitution's Supremacy Clause grants immunity to federal officials performing their official duties.

See also: Diplomatic immunity; Qualified Immunity; Sovereign immunity

Types: 

Absolute immunity, a type of immunity for government officials that confers total immunity when acting in the course of their duties

Amnesty law, a law that provides immunity for past crimes

Charitable immunity, immunity from liability granted to charities in many countries from the 19th century to the mid-20th century

Diplomatic immunity, agreement between sovereign governments to exclude diplomats from local laws

Immunity from prosecution (international law), exclusion of governments or their officials from prosecution under international law

Judicial immunity, immunity of a judge or magistrate in the course of their official duties

Parliamentary immunity, immunity granted to elected officials during their tenure and in the course of their duties

Qualified immunity, in the United States, immunity of individuals performing tasks as part of the government's actions

Sovereign immunity, the prevention of lawsuits or prosecution against rulers or governments without their given consent

Sovereign immunity in the United States, the legal privilege by which the American federal, state, and tribal governments cannot be sued

Spousal privilege, also called spousal immunity, protects a spouse from testifying against the defendant

State immunity, principle of international law that the government of a state is not amenable before the courts of another state

Witness immunity, immunity granted to a witness in exchange for testimony



________

ArtII.S3.5 Presidential Immunity

ArtII.S3.5.1 Presidential Immunity to Suits and Official Conduct

ArtII.S3.5.2 Presidential Immunity to Suits and Unofficial Conduct

ArtII.S3.5.3 Qualified Immunity Doctrine

The "fundamental principle of equal sovereignty among the states"

Some Justice Steven's remarks in the story below touch on points made in 2305. As we look through the principles embedded in the original document as ratified, not as amended, we've noted that there's very little about equality. And there wouldn't be until after the Civil War and the inclusion of the 14th Amendment.

But its argued that while there was no recognition of the equality of the people, there is one of the states, largely because they each have equal representation in the Senate. At least that's what the majority of court in the Shelby decision argued, and Steven says it formed the basis of their decision.

He disagrees with that argument and says the Constitution did not create equal sovereignty because the 3/5ths compromise tipped the balance of power towards the slave states - he calls it the slave bonus. While the states are still sovereign entities, they are not equal:

The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.

The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War. It was after the war that Section 2 of the Fourteenth Amendment, passed in 1868, put an end to the slave bonus. When the Fifteenth Amendment was ratified in 1870 during the Grant administration, the size of the southern states’ congressional delegations was governed by the number of citizens eligible to vote. Since that number included blacks as well as whites, during Reconstruction those states were no longer overrepresented in either Congress or the Electoral College.

Note that he points out that one of the Civil War amendments was responsible for ending the slave bonus and providing equality to the states under the Constitution. That fits one of the basic arguments we make in class - at least in 2305.

This is also a question that touches heavily on items we hit in 2306 when we discussed the role of states in the constitutional system. Does the Constitution guarantee that they be treated equally? There is no explicit language making that case.

Here's more on equal sovereignty:

- Chief Justice Robert's Paean to . . .
- How did we get the principle of equal sovereignty . . .
- Do the states have the right to be treated equally?
- Blue states should get a refund under equal sovereignty.
- The Dignity of the South.

Can anyone explain "congruent and proportional" to me?

A good question from a 2301 student wrestling with this week's question on Coleman v. Maryland. The plurality decision in the case refers to this rule in its decision that Coleman's suit against Maryland - in federal courts - could not go forward. I'll try to provide a reasonable answer below. I also advise that you read the following article in the NYT for background.

First, "congruent" means the same as, and "proportional" means corresponding to. Here's a specific definition of the test from Wikipedia: "all legislation enacted under section 5 of the Fourteenth Amendment must be "congruent and proportional" to the unconstitutional harm it seeks to remedy." Congress can't create a right and use its enforcement powers to impose it on the states. Remember that the 14th Amendment provides the national government the ability to negate state actions that deny equal protection to "persons within its jurisdiction." Section 5 states the following: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." For more info here read: Congressional Power of Enforcement.

As I understand it, the congruent and proportional test is a way to determine what enforecement mechanisms are and are not appropriate. Recently, it has been used often to determine whether civil remedies (lawsuits against the states in federal courts) are appropriate given the violation claimed by a litigant. Was someone denied a constitutional right - if so the suit goes forward - if not the suit is denied. So this test is tightly connected to the question of state sovereign immunity.

The lawsuit under review in US v. Morrison failed the test and was denied, but those reviewed in Tennessee v. Lane and Nevada v. Hibbs passed it, so they were upheld.


Second, this is an example of test that the Supreme Court establishes from time to time to not only justify a specific decision, but to it in a way that provides a (possible) guideline for future courts to rule on similiar cases. Other examples include the separate but equal doctrine, and the Lemon Test. If you feel ambitious you may want to read through this argument that the court is increasingly reluctant to establish such tests, and a comment here.

Third, the congruent and proportional test was established in the case of City of Boerne v. Flores. As it turns out - fortuitously - Boerne was a reaction to the passage of the Religious Freedom Restoration Act, which itself was passed in reaction to the Smith case we discussed earlier regarding peyote. This was the subject of a previous written assignment as you well know (or should know). RFRA attempted to revive a still different test - the Sherbert Test - which among other things stated that a compelling state interest must be furthered whenever a sincere religious belief is violated by the government.

The decision in Smith changed this rule and made religious liberty subject to generally applicable laws. In RFRA, Congress attempted to revive the more stringent standard, but the Boerne case allowed the court to strike that down - and in doing so they reminded Congress that the power to interpret the Constitution belongs to the court.


Finally, this test is controversial. Not everyone on the Supreme Court abides by it, or has the same attitude towards what rights may or may not exist beyond those that are clearly listed in the Constitution. In this case the question has to do with the extent of gender discrimination. This is a topic I hope 2301s are very familiar with by now.

I hope this review helps. Don't get too bogged down in this nuance as you complete the assignment.

Feeling ambitious? Read this: Congruence and Proportionality for Congressional Enforcement Powers: Cosmetic Change or Velvet Revolution?

Supreme Court tosses out lawsuit against Maryland based on Family and Medical Leave Act - Cites State Sovereign Immunity

The case is Coleman v. Maryland Court of Appeals.

From ScotusBlog: "Justice Kennedy, the Chief Justice, Justice Thomas and Justice Alito hold that suits against the states under the self-care provision of the Family and Medical Leave Act are barred by sovereign immunity."
The Washington Post points out that in addition to the general question whether the national government can authorize lawsuits against the states, was the issue about how this ruling affected women particularly, since they are more likely to need to spend time from work following child birth:

Ginsburg said the majority missed the point that the act in its entirety shields women from discrimination.

“The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determined, was not to order leaves for women only, for that would deter employers from hiring them,” said Ginsburg, who was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

“Instead, Congress adopted leave polices from which all could benefit.”

Ginsburg, who had a reputation as a women’s rights advocate before she joined the court, pointed out that Tuesday’s decision affects only government employers and that the act still “applies, undiluted, in the private sector.”

This fits this week's 2301 subject matter perfectly. It touches both on civil rights - as related to gender - and the constitutionality of the principle enforcement mechanism the lawsuit - especially the lawsuit in federal court against the offending state. It also fits previous discussions of federalism. The principle consequence of this decision is a limit on the applicability of the Family and Medical Leave Act.

How to Sue the State of Texas

In 2301, in several lectures - notable federalism and civil rights, we discussed state sovereign immunity and the concept that a state has to allow itself to be sued in order for that to be allowed as a remedy. Here's an example from Burka Blog:

The former Texas Teach coach has retained Capital Alliance, formerly known as the Eppstein Group, to oversee the filing and passage of a bill giving Leach permission to sue the state. Bryan Eppstein confirmed the facts to me in an interview earlier today.The suit is the result of what Leach has contended is a wrongful termination of his contract by Texas Tech following his suspension and subequent firing in December 2010.


Burka's post goes on to point out the part of the Texas Code that details the procedure for such bills.

FYI in case you ever need it.

Will States be Allowed to go Bankrupt?

Something for 2301s especially to chew on, especially as we begin to discuss the Constitution. This is a consequence of both the recent economic downturn and the bloated pension plans some states have designed for state workers. The question now is how states can deal with the position this has placed them in. It raises interesting constitutional questions.

From the NYT:

Policy makers are working behind the scenes to come up with a way to let states declare bankruptcy and get out from under crushing debts, including the pensions they have promised to retired public workers.

Unlike cities, the states are barred from seeking protection in federal bankruptcy court. Any effort to change that status would have to clear high constitutional hurdles because the states are considered sovereign.

But proponents say some states are so burdened that the only feasible way out may be bankruptcy, giving Illinois, for example, the opportunity to do what General Motors did with the federal government’s aid.

Secession

This might be worth chewing over next semester when we discuss federalism. Secession continues to be on the minds of some.

From Edward Tenner:

. . . Breaking up is on the minds of some Americans, too, and not only the Alaskans we read about during the 2008 campaign. The Chronicle of Higher Education has just spotlighted a less familiar society of academic Southern traditionalists. The 64-member Abbeville Institute, founded in 2003 by the Emory University philosophy professor Donald W. Livingston and named for the original home of the statesman and political theorist John C. Calhoun, is about to hold a public conference on two of Calhoun's own themes, secession and nullification. And the speaker list leaves little doubt about what side they're on.

Among the speakers are the professed neo-Luddite Kirkpatrick Sale and the emeritus economics professor Thomas Naylor, advocates of the Second Vermont Republic, a movement admiring the New England secessionism of the early nineteenth century.

The Vermont separatists don't tell the full story of New England intellectuals and secession. Take Yale President Timothy Dwight, John C. Calhoun's mentor. The Web site Yale, Slavery & Abolition quotes him on separation (and justifying slavery):

The evils of disunion would be so great, that nothing like an advantage which appears to be promised by it, is worthy of a moment's regard. Dissolution would involve so many calamities, that it would be childish to weigh it against a few questions of local interest, which are as nothing when put in contrast to it.

And Abbeville's hero, Calhoun himself, began his political life as a nationalist, and turned to nullification and secession ideas only beginning in the late 1820s.The Abbeville conference still is a good thing, because it focuses attention on a growing and--on balance--disturbing trend. But the issue is a complex one involving environment and security issues as well as political theory; look especially at the map on the Georgia-South Ossetia conflict. Secession is too important a subject to be left to the secessionists.

State Sovereign Immunity

We'll conclude this week's 2301 lecture with a discussion of state sovereign immunity, a controversial topic which holds that states are sovereign entities and are immune from being sued unless they agree to it. This includes the national government allowing citizens from a state suing that state in a national court -- which is the way laws such as the Civil Rights Act of 1964 are enforced.

Here are useful links:

- Wikipedia: Sovereign Immunity in the United States.
- US Supreme Court Center: State Sovereign Immunity.
- Wikipedia: The Eleventh Amendment.
- State Sovereign Immunity and Protection of Intellectual Property.
- Oyez: Alden v. Maine.

Its Good to be Sovereign

It keeps those pesky lawsuits at bay.