Can Congress Simply Avoid the Quid-Pro-Quo Issue by Reasserting Sovereign Immunity?
One might argue that the constitutional argument would work with respect to a liability cap for, say, the airlines, but not the City. Why? Because governmental entities, unlike private corporations, once enjoyed sovereign immunity from any and all awards of damages. After World War II, Congress waived some of that immunity via the Federal Tort Claims Act (FTCA). One might think that Congress could reverse the waiver any time it wanted, making any allowance of governmental liability in federal statutes a matter of grace, not a matter of right. But wait a minute. Congress has the power to waive and reinstate federal sovereign immunity. Here, we’re talking about New York’s sovereign immunity, not the federal government’s. Moreover, under our constitutional federalism, it seems that only Albany – not Congress – ought to have the right to say whether New York City or New York State may be sued. And thus far, Albany has not sought to cut off the respiratory plaintiffs’ right to sue via a New
