CONGRESS’ POWER TO ENFORCE 13TH, 14TH & 15TH
AMENDMENTS
AND LIMITATION IMPOSED BY THE 11th AMENDMENT
Goals:
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Effect of 11th A on scope of Congress’ power to “enforce”
civil war amendment rights (equal protection, due
process, badges of slavery, voting discrimination)
learn limits imposed by 11th A & exceptions
Exceptions include: Congressional authorization of suits
against state otherwise barred by 11th A
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Considerations of federalism… Congress’ power to authorize
suits against States in Federal Court to remedy violations of 13,
14, 15th A implicates Federal-State relationship and relative
powers
Brief History of 11th A
Relevant Constitutional Text
Article III, Sec.2  Judicial Power shall
extend…to controversies between…a State
and Citizens of another State…
Chisholm court so bold, follows the text
allows suit against South Carolina by
citizen of Georgia in Federal Court
11th A Adopted very quickly
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The Judicial power of the United States
shall not be construed to extend to any
suit….against one of the United States by
Citizens of another State
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Literally: No Federal Court Jurisdiction over
suits against the State Government by
persons not from that state
Subsequent Judicial Interpretation
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Han: 11th A reflects broad historical
immunity of states from suit = (Contrary
to what it actually says) No Individual can
sue state in federal courts
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Rationale derived from common law doctrines
of sovereign immunity
Thus Han extends 11th A restriction on federal
court jurisdiction to suits brought by citizens
of a state against that state
What isn’t included w/in 11th A
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Doesn't apply in suits by Fed Gov
Doesn't apply in suits by other states
Doesn't apply to Local govern entities
like cities (but Pennhurst…)
Doesn’t apply to Supreme Court’s
appellate jurisdiction (from state
courts)
Doesn’t apply to suits against Public
Officials in individual capacity if
Ex Parte Young
11th A Doesn't apply if suit is:
 Against Official of the State (not state
itself/ unless State is real party in interest)
 Violation of Constitution or fed law
via officer's actions:
 BUT only
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For Prospective Relief (injunctions -even if
it costs $ to enforce)
Or $ directly out of D's pocket- personal
liability (not out of state treasury)
Exceptions
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May be Waived by the State (clear consent) (or
removal of suit)
May be “abrogated” by Congress under
“enabling clauses” (eg,14th amendment, sec 5)
as law to enforce Civil War Amendments if
"unequivocally clear" 
WHY?
13th, 14th & 15th are later in time…
THUS: Congress can remove 11th A immunity and
authorize suit against state government in federal
courts to enforce Constitutional Rights
Key Q scope of this power? (when, why, how)
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What about Article I?
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Can Congress also abrogate 11th A
immunity pursuant to Article I powers…to
regulate interstate commerce, control
intellectual property, immigration, protect
spending….?
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Remember Garcia…state governments
must comply with federal law
Argument for …..?
Supremes Say Yes…and then…No
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WHY Not?
 significance? Congress can’t authorize
private fed. suits against states for
violations of most federal law…patent,
copyright, commercial regulation
(environment/ drug enforcement, etc),
bankruptcy
leave these laws unenforceable?
Exceptions & alternatives for enforcement of
federal law
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federal government can still sue
Monetary incentives for waiver/consent
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….state courts?
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Stay tuned….
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THE 11th AMENDMENT