Rule of Law

RELEASE: Kirtz Argument Reveals Tension Between Expansive Application of Sovereign Immunity Canon and Honest Textualism

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Department of Agriculture Rural Development Rural Housing Service v. Kirtz, a case in which the Court is considering whether private individuals can sue the federal government for violating the Fair Credit Reporting Act, Constitutional Accountability Center Appellate Counsel Miriam Becker-Cohen issued the following reaction:

This morning’s argument revealed the tension between the government’s strained interpretation of the Fair Credit Reporting Act and the Supreme Court’s repeated admonition that Congress does not have to use “magic words” to waive the federal government’s immunity from suit.

Although the Act clearly waives sovereign immunity, imposing liability on any “person” and defining “person” to include “any . . . government or governmental subdivision or agency,” the government argued that it should nonetheless win because the sovereign immunity canon puts the thumb on the scale in favor of the government when statutes are ambiguous regarding whether immunity has been waived.

But as we explained in our amicus brief, the sovereign immunity canon does not alter the Court’s approach to statutory interpretation in the first place. Rather, as Justice Gorsuch pointed out, the “first step” to interpreting a statutory waiver of sovereign immunity is to ascertain what the statutory provisions “mean.” Where, as in the Fair Credit Reporting Act, there is no ambiguity, the sovereign immunity canon simply has no role to play.

The result here thus should be simple: Congress waived sovereign immunity, and private individuals who allege that the federal government has violated the Fair Credit Reporting Act should get their day in court.



Case page in Department of Agriculture Rural Development Rural Housing Service v. Kirtz:


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