"Something Called 'Sovereign Immunity'!"

My better judgment counseled against writing this post, because I usually don’t find that defending the Obama administration from rabid, ignorant leftists is a productive use of my time.  However, my colleagues have prevailed upon me to address it, and so address it I shall.  The background here is relatively technical and involves the oft-discussed “warrantless wiretapping” program implemented by the George W. Bush administration.  Obama is apparently now defending it, causing his least-informed supporters to lose their marbles.  Keith Olbermann provides us with a representative sample:

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“Something called ‘sovereign immunity'”? Let me break this down for you, Keith, in terms that you will understand.  What you just said was the sportscaster equivalent of “Today, David Ortiz hit a ball with something called a baseball bat.”

For a take that sounds more informed, but in reality is not, check out Glenns Greenwald.  Much of the uproar centers around the Obama administration’s assertion of “sovereign immunity” as a defense to the lawsuits over the surveillance program.  Check out this clueless law professor they dug up who expresses surprise that even a law student would suggest that the government is sovereignly immune from suit:


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It is pretended by these bloviating blowhards that the assertion of sovereign immunity as a defense is either a) some sort of radical new power grab by the Obama administration, or b) an antiquated defense that is no longer viable.  In reality, it is neither.  The notion that the U.S. Government is sovereignly immune from suit absent its consent is in reality one of the most ancient concepts in our jurisdprudence, and at the same time still a very much viable rule of law.  See, e.g., FDIC v. Meyer for example. Any lawyer who has ever either contemplated suing the government or who has represented the government knows that sovereign immunity is the first hurdle a plaintiff suing the government always must clear.  It is, as the Court noted in FDIC v. Meyer, a jurisdictional issue, and absent a statutory waiver of sovereign immunity, the U.S. Government cannot be sued, period. 

Now, this is not rocket science.  Any lawyer of even marginal competence is aware, in the deep recesses of his mind, of the mantra “the government is sovereignly immune from suit.”  I have no idea what Turley and Greenwald, who profess themselves to be “experts” in Constitutional law, are playing at when they suggest that this is some radical or newfangled idea.

As it happens, the Federal Government has waived sovereign immunity for a relatively broad array of suits.  I haven’t the foggiest whether the suits of these particular plaintiffs fit within that waiver; and I haven’t the time to investigate as I suspect it’s a rather nuanced question.  But the fact that government lawyers are arguing that a plaintiff’s lawsuit falls outside the ambit of a statutory waiver of sovereign immunity is dispositive of nothing more nor less than government lawyers displaying basic competence in their job.  That may or may not be shocking; it is not evidence of a nefarious conspiracy to suppress civil rights.

The only angle that I can figure that these people are playing is that they are trying to help Obama by providing him with hysterical leftist morons that he can ignore in an attempt to appear “reasonable” and “centrist.”  Of course, those who are more optimistic about human nature generally (like our own beloved Moe Lane) are of the opinion that these people really believe what they are saying here, in which case, I have to ask:  Aren’t you glad you spent so much time and money getting this guy elected so that you wouldn’t have to worry about this stuff anymore?