Bureaucracy that Kills: Federal Sovereign Immunity and the Discretionary Function Exception

Abstract

Political scientists normally discuss sovereign immunity in the context of international law and relations. The domestic effects of sovereign immunity are almost never examined, even though those effects are profound and implicate a range of issues of interest to political scientists. The Federal Tort Claims Act (FCTA) (1946) is a main waiver of federal sovereign immunity and is designed to allow people injured by government employees to sue for money damages. The FTCA has a number of exceptions, the most prominent of which is known as the “discretionary function exception.” This exception retains sovereign immunity for the United States when a federal employee acts “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty…whether or not the discretion involved be abused.” This simple exception expanded into a comprehensive tool of government that now confounds justice and federal governmental accountability.