Evening star., 1946-05-27
Letters to The Star
The Citizens Diminishing Right

to Sue the Government
To the Editor of The Star:
In his column in Fridays Star, David
Lawrence, writing on the Presidents
failure to enforce the law in the present
economic emergency and the almost
limitless damage entailed, says: But
the last word has not been spoken. The
citizens damaged by the strike have
a right to redress in the courts. They
can sue for damages. They can sue
the Government for failure to enforce
the law. The taxpayers of the country
may some day have to pay the bill for
damages which President Truman by
his neglect of duty unwittingly al
lowed"
Here Mr.. Lawrence, usually excep-
tionally well informed and accurate,
went off the deep end. No citizen can
sue the Government except with its
consent granted by Congress. Such
consent as established by organic law
is narrow one. In general, and so
far as pertinent here, Congress has
consented to suit against the United
States only in the Court of Claims and
only in actions for breaches of Gov
ernment contracts. The Government
cannot be sued in tort; that is, it can
not be sued for wrongs, injuries and
neglects committed by officers and
agents of the Government.
The grant of consent is very restricted
and the tendency is toward further
restriction. Though granted by Con-
gress 1t is, in effect, being whitfield
away by the executive branch, process
that has been greatly accelerated over
the past 10 years. Some of the great
contracting executive departments print
in their contract forms stipulations
that all questions both of law and fact
arising under the contract shall be
decided finally and conclusively by the
contracting officers, stipulation which
in effect deprives the Court of Claims
of its jurisdiction. Up to some months
ago the Court of Claims made many
efforts to ameliorate, by construction,
the harshness of such a provision and
to protect its own jurisdiction. Such
efforts met with the antagonism of
the Department of Justice, and upon
review at the departments request the
Supreme Court habitually has upheld
the departments contentious and re-
versed the lower court, exhibiting upon
occasion little patience. The Supreme
Court, with some justices dissenting,
sees great virtue in the stipulation, and
adopts as its rough rule of decision that
the contractor signed the stipulation
and that ends the matter, with no
reference to the fact that the stipula-
ton is in printed form, and bidder,
even if he notices it, has to take it as
is or not at all or to the further fact
that it supersedes the jurisdiction of
the Court of Claims as established by
Congress.
The recent trend in our Govern
ment obviously is toward an enlarge
ment Of executive power. Such stipula-
tions involve, to a material extent, the
age-old choice between government by
law and government of man, between
legal processes and personal power,
pride, caprice. The swing now is GER
tainly toward the latter. 1t may well
be that that choice has contributed to
the present dire situation. We will be
governed either by law or by mere
men, who, each according to his ma
ture and purpose, will act vigorously
or timidly or not at all.
cAHF1Try AHrcryy