Administrative Law Assignment: Sovereign Immunity and Fifth Amendment

This assignment solution addresses key concepts in Administrative Law, specifically focusing on the Fifth Amendment and the principle of sovereign immunity. The solution examines the implications of the Fifth Amendment, including the right against self-incrimination and the concept of immunity, including transactional and use/derivative use immunity. It also provides an overview of sovereign immunity, its origins in English common law, and its application in the US legal system at federal, state, and local levels. The document differentiates between absolute and qualified immunity, and notes that sovereign immunity does not shield the state from all lawsuits, particularly those alleging violations of federal law. This assignment is designed to provide a comprehensive understanding of these critical legal principles.

Running head: ADMINISTRATIVE LAW
Administrative Law
Name of the Student
Name of the University
Author Note

1ADMINISTRATIVE LAW
Question 1
The Fifth Amendment gives the constitutional right to people to be protected from
self-incrimination. However, on the grant of an immunity, people can be made to testify
against themselves or another. The prosecutor can decline one’s right under the Fifth
Amendment by granting him an immunity from prosecution in exchange of his testimony.
Immunity can be Transactional as well as Use and derivative use immunity. However in
Kastigar v. United States, 406 U.S. 441 (1972), it was argued by the Supreme Court as to
issue of the type of immunity for compelling the witness to testify and that the use and
derivative use immunity would be sufficient in most cases (McMahon, 2017).
a) Transactional immunity
By way of transactional immunity, the witness is given a complete protection from
prosecution pertaining to the matters that are included in the testimony of immunity.
Although it gives ‘total’ protection to the witness, it does not restraint the prosecutor from
bringing charges against the witness regarding matters that are not included in the immunized
testimony.
b) Use and Derivative Use Immunity
Use and Derivative Use Testimony puts a restraint on the prosecution to use the
statement of the witness or an evidence derived out of such statement in a criminal
proceeding, against the witness. However, the grant of use and derivative use immunity does
not restraint a prosecutor from looking for additional information and evidences against the
witness for a later use. While giving testimony, if a witness indicates of committing or being
involved in a criminal act, the prosecution shall have the scope to find out independent
evidences of such criminal act from any other source and shall be liable to begin a criminal
proceeding against such witness.

2ADMINISTRATIVE LAW
Question 2
In US legal system, the principle of sovereign immunity has been derived from the
English common law maxim ‘rex non potest peccare’ which means that the sovereign cannot
do a wrong. The doctrine of Sovereign immunity refers to the immunity of the government
from being held liable for a legal wrong and are immune from criminal as well as civil
prosecutions (Feller & Frey, 2017). The federal, state and tribal government in the United
States enjoy this immunity from lawsuits while the local governments are immuned against
certain kind of lawsuits only, tort lawsuits in particular. Sovereign immunity is:
a) Absolute immunity
Absolute immunity is applied to a government personnel against being sued for an
alleged wrongful act. It applies even when such person has acted in bad faith (Gross, 2017).
b) Qualified immunity
Qualified immunity is applicable to government personnel as a shield against liability
only when certain criteria is met as directed by the statute (Gross, 2017).
However, Sovereign immunity does not stop an aggrieved party to sue the state if an
officer of the state has been violating his duty, thereby breaching the federal law. In addition,
sovereign immunity does not apply to a situation where a state is being sued by another state.

3ADMINISTRATIVE LAW
References
Feller, U., & Frey, M. (2017). Sovereign Immunity. Int'l Fin. L. Rev., 36, 62.
Fifth Amendment to the U.S. Constitution.
Gross, J. P. (2017). Qualified Immunity and the Use of Force: Making the Reckless into the
Reasonable. Ala. CR & CLL Rev., 8, 67.
Kastigar v. United States 406 U.S. 441 (1972)
McMahon, R. (2017). Kastigar v. United States: The Immunity Standard Redefined. The
Catholic Lawyer, 18(4), 10.