Immunities from suit, whether for governments or government officials, occupy a semi-sacred place in our jurisprudence. Trumpeting sovereign immunity, state and federal governments have long asserted that they are not subject to suit unless they have consented, and the courts have supported them. The U.S. Supreme Court has also created common law immunities for government officials and municipalities. Both kinds of immunity rest on a pervasive misunderstanding of English legal history and a convenient disinclination to consider the distinctive history and political philosophy that underlies the federal government. This Article does not examine the nuances of the official and municipal immunity doctrines, but rather questions their legitimacy in light of constitutional supremacy. It focuses on immunity of executive department officials and municipalities, but casts some doubt on judicial immunity as well.
Donald L. Doernberg, Taking Supremacy Seriously: The Contrariety of Official Immunities, 80 Fordham L. Rev. 443 (2011)