State sovereign immunity is a bedrock principle of American federalism, shielding states from most lawsuits in federal court without their consent. Rooted in the Eleventh Amendment and longstanding common law, this doctrine preserves the autonomy of state governments and protects their treasuries from private claims. Yet when public health emergencies arise—such as pandemics, natural disasters, or bioterrorism events—states must act swiftly to protect their populations. Emergency measures like quarantine orders, vaccine mandates, and travel restrictions inevitably generate legal disputes. The tension between sovereign immunity and the need for accountability during crises raises fundamental questions: Can individuals sue a state for violating their rights during a public health emergency? When does the state's immunity yield to federal law or constitutional claims? This article explores the complex interplay between state sovereign immunity and public health emergencies, examining the doctrine's origins, exceptions, and real-world application during the COVID-19 pandemic and other crises.

The Constitutional Foundation of State Sovereign Immunity

State sovereign immunity traces its roots to English common law, where the Crown could not be sued without its consent. The framers of the U.S. Constitution incorporated this principle, and it was reinforced by the Eleventh Amendment, ratified in 1795. The amendment arose directly from the Supreme Court's decision in Chisholm v. Georgia (1793), where the Court allowed a private citizen to sue Georgia for unpaid debts. Outraged states quickly pushed for a constitutional amendment to overturn the ruling. The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Over time, the Supreme Court has interpreted the amendment broadly. In Hans v. Louisiana (1890), the Court held that the amendment also bars suits against a state by its own citizens, even though the text does not explicitly say so. Later decisions, such as Alden v. Maine (1999), extended sovereign immunity to state court suits as well, reasoning that the Constitution's structure preserves state sovereignty from private damage actions. Today, state sovereign immunity is a constitutional shield that protects states from most private lawsuits seeking money damages, unless the state consents or Congress validly abrogates that immunity under its enforcement powers.

Scope and Exceptions to Sovereign Immunity

Despite its broad protections, sovereign immunity is not absolute. Several key exceptions allow private parties to challenge state action, particularly when constitutional rights are at stake or when Congress has spoken clearly. Understanding these exceptions is crucial for public health emergencies, where states may overstep constitutional boundaries.

The Ex Parte Young Doctrine

One of the most important exceptions is the Ex parte Young doctrine, established by the Supreme Court in 1908. Under this doctrine, private individuals can sue state officials in federal court for injunctive or declaratory relief to stop ongoing violations of federal law, including the Constitution. The fiction is that a state official acting unlawfully is not acting on behalf of the state and thus does not enjoy sovereign immunity. This exception does not allow damages from the state treasury, but it permits plaintiffs to block enforcement of unconstitutional laws. During public health emergencies, the Ex parte Young doctrine has been used to challenge quarantine orders, vaccine mandates, and business closures. For example, in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), religious organizations sued New York state officials to enjoin COVID-19 capacity restrictions, and the Supreme Court granted relief, citing free exercise violations.

Congressional Abrogation

Congress may abrogate state sovereign immunity when it acts pursuant to its enforcement powers under Section 5 of the Fourteenth Amendment. To do so, Congress must (1) unequivocally express its intent to abrogate immunity and (2) act within the scope of its constitutional authority. In the context of public health, the most prominent example is the Public Readiness and Emergency Preparedness (PREP) Act of 2005. The PREP Act provides immunity from liability for claims of loss caused by covered countermeasures (e.g., vaccines, drugs, devices) during a public health emergency. It also confers immunity on manufacturers, distributors, and program planners, but it does not automatically waive state sovereign immunity for states that act as program planners. However, the PREP Act includes a waiver of sovereign immunity for actions brought against the United States in limited circumstances. More broadly, the PREP Act preempts state law and provides a federal cause of action for willful misconduct, but it does not create a general waiver of state sovereign immunity. Courts have grappled with whether the PREP Act abrogates state immunity under the Fourteenth Amendment, with mixed results. In Magliulo v. CVS Caremark (2021), a federal district court held that the PREP Act did not validly abrogate state sovereign immunity because it was not enacted under Section 5 of the Fourteenth Amendment.

States can expressly consent to be sued, either through a statute or by participating in certain federal programs. Many states have tort claims acts that waive sovereign immunity for negligence claims within certain limits. During public health emergencies, states sometimes waive immunity temporarily to encourage cooperation with emergency measures or to facilitate compensation for injuries. For example, several states enacted COVID-19 liability shields that limited liability for healthcare providers and businesses, but these shields often preserved some avenues for claims of gross negligence or willful misconduct. Consent may also be implied when a state voluntarily removes a case to federal court (e.g., under the "voluntary invocation" doctrine), but that is limited.

Public Health Emergencies and State Action

Public health emergencies test the limits of government power and individual liberty. The seminal case is Jacobson v. Massachusetts (1905), in which the Supreme Court upheld a city's mandatory smallpox vaccination ordinance against a due process challenge. The Court recognized that states have broad police powers to protect public health, subject to reasonableness and necessity. That principle has endured for over a century and was frequently invoked during the COVID-19 pandemic to defend mask mandates, business closures, and school orders.

However, states are not immune from constitutional scrutiny. The Jacobson framework requires that emergency measures have a "real or substantial relation" to public health and not be "a plain, palpable invasion of rights secured by the fundamental law." Sovereign immunity can shield states from damages for such invasions, but it does not bar injunctive relief under Ex parte Young. Thus, during the pandemic, a torrent of lawsuits against state officials sought to enjoin enforcement of public health orders on constitutional grounds—free exercise of religion, freedom of assembly, equal protection, and due process. Many succeeded, as in Tandon v. Newsom (2021), where the Supreme Court blocked California's ban on in-home worship gatherings when comparable secular activities were permitted.

Sovereign Immunity in the COVID-19 Pandemic

The COVID-19 pandemic provided a real-world laboratory for the intersection of sovereign immunity and public health law. States enacted unprecedented emergency orders, prompting hundreds of lawsuits. Three key areas illustrate the legal dynamics.

Lawsuits Against State Officials

Most suits challenging COVID-19 orders named state governors, health directors, or local officials as defendants, seeking injunctive relief. Under Ex parte Young, these suits proceeded if they alleged ongoing violations of federal law. For example, businesses challenging closure orders argued that they were denied equal protection when similar businesses remained open. Many courts applied the Jacobson standard and, depending on the factual record, either upheld or struck down the orders. Sovereign immunity did not bar these actions because they sought prospective relief, not damages from the state treasury. However, when plaintiffs sought damages for alleged constitutional violations, sovereign immunity generally blocked the claims. In Brown v. Louisiana (2021), the court dismissed damage claims against the state for enforcing COVID-19 protocols, as the state had not consented to suit.

PREP Act Immunity for Vaccine Manufacturers and Providers

The PREP Act granted broad immunity to covered persons—vaccine manufacturers, drug companies, and certain healthcare providers—for losses arising from administration of COVID-19 countermeasures. This immunity extends to state-run vaccination programs that are "program planners" under the Act. However, the Act does not waive sovereign immunity for states themselves unless they are sued under the Act's narrow willful misconduct exception, which itself requires clear evidence. In practice, most courts dismissed claims against state entities for injuries allegedly caused by vaccines, citing PREP Act immunity and the state's sovereign immunity as separate bars. For instance, in Kehler v. Sandoz, Inc. (2022), the court held that the PREP Act preempted state law claims and that state sovereign immunity also shielded the state from suit in federal court.

Lawsuits Against States for Emergency Orders

Some plaintiffs sued states directly for damages caused by lockdowns, school closures, or restrictions on business. These suits usually failed because of sovereign immunity. For example, in Horne v. Georgia (2021), a group of small business owners sued Georgia for lost revenue due to shelter-in-place orders. The state invoked sovereign immunity, and the court dismissed the claims, noting that the state had not consented to such suits and that Congress had not validly abrogated immunity under the Fourteenth Amendment. Similarly, parents challenging school closures for violating state law faced the immunity barrier, as most state tort claims acts do not waive immunity for discretionary policy decisions during emergencies.

Balancing Federalism and Public Health

The doctrine of state sovereign immunity reflects a fundamental choice in American federalism: states should be able to govern without the constant threat of private lawsuits that could drain public resources and chill aggressive action during crises. Yet absolute immunity could leave individuals without any remedy when states violate constitutional rights or cause compensable harm. The balance between sovereignty and accountability is struck through the exceptions outlined above, but tensions persist.

During public health emergencies, policymakers must weigh several factors. On one hand, sovereign immunity allows states to act decisively—issuing quarantine orders, procuring vaccines, and deploying resources—without fear of endless litigation. On the other hand, individuals who suffer injury due to state misconduct may have no recourse for damages. The legal system relies on injunctive relief and criminal prosecution (e.g., of officials who knowingly violate constitutional rights) to fill the gap, but these remedies are imperfect.

Legislative responses have been proposed to clarify the scope of immunity during emergencies. For example, the Public Health Emergency Response Act (PHERA) introduced in Congress would create a federal cause of action against states for violations of certain public health rights. However, such a law would need to clearly abrogate state sovereign immunity under Section 5 of the Fourteenth Amendment, a heavy constitutional lift. States themselves have passed liability shields during emergencies, but these vary widely. Some, like New York's, protected healthcare facilities and providers but allowed actions for gross negligence. Others, like Texas's, provided more sweeping immunity to businesses and schools. The patchwork of state laws creates uncertainty and may lead to forum-shopping.

Courts have also refined the balance. In Shelby County v. Holder (2013), the Supreme Court cautioned against federal overreach into state sovereignty, a sentiment that resonates in sovereign immunity jurisprudence. Yet the Court has also recognized that constitutional rights must be protected, even during emergencies. In South Bay United Pentecostal Church v. Newsom (2020), the Court denied injunctive relief initially but later found some restrictions impermissible. The message is clear: sovereign immunity is strong, but it does not immunize state officials from suits for constitutional violations—at least for injunctive relief.

External resources provide deeper analysis. For a comprehensive overview of the Eleventh Amendment and its exceptions, see Cornell Legal Information Institute's guide. The CDC's Public Health Emergency Preparedness page outlines federal and state responsibilities. The Jacobson v. Massachusetts decision itself is available at Justia. For a law review perspective on sovereign immunity and COVID-19, see this article from the Journal of Law and the Biosciences.

Conclusion

State sovereign immunity remains a fundamental protector of state autonomy, especially during emergencies when governments must act quickly and decisively. The doctrine allows states to implement public health measures without the chilling effect of constant litigation. However, the exceptions—particularly the Ex parte Young doctrine—ensure that individuals can seek injunctive relief when constitutional rights are violated. The COVID-19 pandemic demonstrated both the value of immunity and its potential to leave injured parties without compensation. As new public health threats emerge, the legal framework will continue to evolve, balancing the need for swift state action with the promise of accountability. Ultimately, the interplay between sovereign immunity and public health law reflects the enduring tension between federalism and individual rights in the American constitutional system.