Constitutional Law I
Eleventh Amendment
March 8, 2006
Meaning of Sovereign Immunity
The Sovereign (king, State, officers) is not
bound by the law

Hard to maintain in post-1776 America
 Non sub homine, sed sub Deo et lege

Rule of substantive law
The Sovereign is not subject
to suit in its own courts
without its consent

Rule of jurisdiction
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Chisholm v. Georgia (1793)
Background


Georgia reneges on a revolutionary war debt
Chisholm (from S.Car.) sues GA in federal court
 Art. III, § 2: “The judicial power shall extend
to … all controversies between a State and
citizens of another State…” Accord fed statute

GA asserts sovereign immunity
 Does Art. III merely confer jurisdiction; or
 Does it enact a rule of law overriding immunity
defenses states might otherwise have?

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S.Ct. adopts the latter interpretation
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Chisholm v. Georgia (1793)
Art. III: merely jdx’l or also substantive law

“The people of the United States” intended to bind the
states by the legislative, executive, and judicial powers
of the national government. The Court held that
supreme or sovereign power was retained by citizens
themselves, not by the "artificial person" of the State of
Georgia. The Constitution made clear that controversies
between individual states and citizens of other states
were under the jurisdiction of federal courts. State
conduct was subject to judicial review.
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Enactment of 11th Amendment
Text
“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.”
Sovereign Immunity

How does 11th Amd correct Chisholm?
 Withdraws federal jurisdiction in certain cases; or
 Creates a rule of substantive law – sovereign immunity

If the latter, does the 11th bestow sovereignty
immunity, or merely restore whatever immunity
states had prior to their entry into the Union?
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Withdrawal of Federal Jdx
Diversity Suits

11th amd divests federal courts of jdx over
states (as defendant)
The judicial Power
[of the United States]
shall extend to all
Cases, in Law and
Equity… between a
State, or the Citizens
thereof, and foreign
States, Citizens or
Subjects."
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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.”
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Withdrawal of Federal Jdx
Diversity Suits

11th amd divests federal courts of jdx over
states (as defendant)
Federal Question cases

Hans v. Louisianna (1890)
 11th Amd. to be liberally construed
 Withdraws federal jurisdiction against state defendants
in all cases, including federal question cases.

Compare Sedgwick proposal (for 11th amd):
 "No state shall be liable to be made a party defendant,
in any of the judicial courts established … under the
authority of the United States …"
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Federal Supremacy after 11th Am
Effect of 11th on federal supremacy


If states can't be sued in fed. court on federal
claims, how is const'n enforced against them?
Suit in state court
 Myth of parity
 Review by USSC
Stripping doctrine

Suits against state officers (Ex Parte Young)
 A state officer violating federal law cannot be acting
on behalf of the state, so cannot assert state SI

Only applies to injunctive relief
 Damages come from state treasury
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Pennhurst v. Halderman
(1984)
Stripping doctrine


Suit against state officer for violating federal
rights (statutory, as well as constitutional)
Suit against state officer for violating state rights
 State officer acting ultra vires her authority


Stripping based on fiction to enable supremacy
of federal law; does not extend to state law
Kenneth Culp Davis: "as long as the doctrine of
sovereign immunity continues to prevent suits which are
really against the government to be brought against the
government, what is needed is consistent adherence to
the false pretense and rejection of the truth."
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Exceptions
Stripping Doctrine (Ex Parte Young)
Abrogation by Congress
Explicit State Waiver (Atascadero)



By statute (e.g., Prop 57 bonds)
By invoking federal jurisdiction (Clark v. Barnard)
By removing case to federal court (Lapides)
Inapplicable




To local government (Mt. Healthy)
In Supreme Court (ME v. Thiboutot)
Suits by federal gov’t (US v. MS)
Suits by other states (CO v. NM)
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Exceptions
Congressional Abrogation


Theory: in ratifying the constitution, states
relinquished power – hence sovereignty.
When congress acts within its enumerated
power, states have no sovereignty.
Not all federal laws abrogate SI – only those
that say they do
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Congressional Abrogation
Power to Abrogate


14th Amd. Section 5 (post-dates 11th amd)
Section 8 (pre-dates 11th amd)
Explicit abrogation

Congress must make clear that law extends
to states (Gregory v. Ashcroft) and that
enforcement suits may be brought against
state in federal court
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Abrogation under Section 5
Fitzpatrick v. Bitzer (1976)

14th amd is a limitation on state power
 States have no sovereign right to act contrary

§ 5 empowers congress to enforce those limits
 States have no sovereign right to defy enforcements

11th Amd (whatever it means) is limited by
subsequent enactment of 14th Amd
 Gen'l rule of construction: in case of conflicting
provisions, the later in time controls
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Abrogation under Section 8
Pennsylvania v. Union Gas (1989)


11th Amd did not create sovereign immunity; it
restored that which existed before Chisholm
Whatever sovereign immunity states enjoyed
prior to ratification, they ceded it coextensive
with grants of substantive power to congress.
 This "background principle" of State sovereign
immunity was necessarily limited by § 8 grants of
power to congress
 Any enactment within congress' § 8 powers is
capable of overriding state sovereign immunity
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Seminole Tribe v. Florida
(1996)
Indian Gamin Reg. Act requires states to
negotiate with Indian tribes re. Gaming


Act allows tribes to sue States in federal court if
they fail to negotiate in good faith
Act passed under Indian commerce clause
Abrogation


Does act "unequivocally
express" congress'
"intent to abrogate
[state] immunity"?
Can congress do so?
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Seminole Tribe v. Florida
(1996)
Majority:



Section 8 powers were limited by 11th Amd
Congress cannot abrogate when acting per § 8
Penn. v. Union Gas overruled
Stevens dissent:

Congress cannot
provide enforcement against
states of most
federal rights
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Seminole Tribe v. Florida
(1996)
Souter dissent:


Did states enjoy SI in own courts before 1789?
If so, did that immunity carry over to federal
courts after ratification?
 No historical record, at least wrt federal question
cases, suggesting "a general understanding that the
States would have no immunity in such cases"

Even if states otherwise have SI in federal
cases, can congress abrogate it?
 What is the federalism difference between suits
under self-executing provisions of the constitution, &
 Suits explicitly authorized by Congress?
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Alden v. Maine
(1999)
Suit against Maine under FLSA



Fed.Ct. lacks jdx per 11th Amd.
11th is more than a w/drawal of jdx; it evinces a
substantive rule of law (immunity defense)
Federal substantive law applies in state court
SI as a constitutional rule



Not based on 11th amd. per se
Not based on any constitutional text
Based on const’l “understandings”
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Alden v. Maine
(1999)
Theory of state sovereign immunity


States were sovereign, pre-constitution
Upon ratification they relinquished sovereignty
only pursuant to the “plan of the convention”
 I.e., wherever they precluded their own action

e.g., Art. I, §10; Art. IV; 14th Amendment
 Not where they merely delegated power to congress

delegation of enumerated power was over individuals not
over states; therefore
 states relinquished sover’ty viz individuals (supremacy)
 delegation did not include relinquishment of immunity
Nice theory; but is it law?
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FMC v. S. Carolina
(2002)
Claim: SC violates Shipping Act
Forum: Federal Agency (“Art. I court”)


Agencies often adjudicate claims pertaining to
their specialized jdx
Agencies can also file suit on behalf of claimant
 e.g., US v. Morrison; NLRB

Neither 11th Amd. nor SI apply to suits against states by US
“Dual Sovereignty” in agency adjudications


11th Amd. does not apply by its own terms
No history of SI – no federal agencies
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FMC v. S. Carolina
(2002)
No text, no historical practice, then what?

Ask the framers
 “To decide whether SI applies here we must examine
FMC adjudications to determine whether they are the
type of proceedings from which the Framers would
have thought the States possessed immunity when
they agreed to enter the Union.”
 “we cannot imagine that they would have found it
acceptable to compel a State to answer complaints
of private parties before an administrative tribunal”

By extension
 “FMC administrative proceedings bear a remarkably
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strong resemblance to civil litigation in federal cts.”
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FMC v. S. Carolina
(2002)
Deconstructing FMC proceedings

Step 1: private citizen asks US to sue
 Breyer: 1st amendment right to do so

Step 2: US may file suit in federal court
 SI doesn’t apply to suits against states by the US
Bottom line

Actions that challenge a state’s “dignity” are
barred, not by anything actually in the constitution, but by what 5 members of the court
think the framers would have preferred.
 These 5 judges are the “strict constructionists”
 Other judges are “activist”
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TSAC v. Hood (2004)
Abrogation under Congress’ Bankruptcy Power

Art. I, § 8, cl. 4:
 Congress has power “to establish ... uniform Laws on
the subject of Bankruptcies throughout the US.”

Enjoys SI,
but not
based on
11th Amd;
often
waived 
11 U.S.C. § 727(b) [Chapter 7, Voluntary Discharge]:
 discharge under sub § (a) of this section discharges
the debtor from all debts that arose before the date
of the order for relief under this chapter
Defendants:
 Federal: United States; Dept. of Education; Sallie Mae
 State: TSAC
 Private: University Account Services
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TSAC v. Hood (2004)
Lower court holding (BC, BAP, 6th Cir):


States ceded their SI at const’l convention
Congress can abrogate per bankruptcy clause
Rehnquist:


11th Amd & Abrogation are inapposite
In Rem proceedings are not against a state
Literal terms of 11th amd are to be disregarded
Bankruptcy discharge operates against whole world



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Education loans gen’ly not dischargeable 11 USC § 523(a)(8)
unless hardship is proven
Fed.R.Bank.P require “adversary proceeding” against State
Formal distinction even if an “affront” to State sovereignty
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TSAC v. Hood (2004)
Thomas (dissent)



This proceeding was in personam (adversary)
even if other bankruptcy proceedings are in rem
Congress justified discharge against states as an
abrogation of State SI, not as exception to rule
Grant of power to Congress to establish “uniform
laws on Bankruptcy throughout the US” is not
enough to override the (non-textual, pre-const’l)
immunity of states from federal regulation
Who won the Civil War?
Constitution of the Confederate States of America
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The remainder of these slides are
not covered this semester; they
involve Congress’ ability to abrogate
11th amendment immunity under its
14th Amendment, Section 5 powers.
Some of this will be covered in your
Constitutional Law II course.
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Florida Prepaid v. College SB (1999)
College SB patent infringed by state agency



Patent laws passed pursuant to patent clause
Fed courts have exclusive jdx in patent cases
Patent Remedy Act allows suits against states
Can congress abrogate SI per Patent Clause

No different than other § 8 powers
Can congress abrogate SI per § 5 powers

Yes, so long as law is "appropriate"
 Congruence & proportionality test of Boerne
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Florida Prepaid v. College SB (1999)
Congruence & proportionality for § 5 laws
1. What constitutional violation is at stake?
 State infringement of patent (federal property right)
 If done w/o compensation, it violates "due process"
2. Is the remedy provided by congress congruent
to this constitutional wrong?
New
require Act allows suit without first seeking comp. from state
ment
for § 5 3. Viewed as a prophylactic measure, is it proporenacttional to likelihood & magnitude of the wrong?
ments
 Apparently not since no pattern of widespread abuse
 Prophylactic laws appropriate only for "widespread
and persisting deprivation of constitutional rights"
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Florida Prepaid v. College SB (1999)
Congruence & proportionality for § 5 laws



Conclusion: Since the Patent Remedy Act is
neither remedial nor prophylactic,
It is not responsive to unconstitutional behavior
§ 5 must be a contrived basis for the law; it is
really based on § 8.
Stevens dissent:

Court creates loophold in patent law; states
have total freedom to infringe private property
 Patents issued to, and infringement by, states is not
a trivial issue
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Kimel v. Fla Bd. of Regents (2000)
Age Discrimination in Employment Act

(ADEA)
Prohibits age discrimination by employers
 Including states
 With exceptions (e.g., BFOQ)

Passed pursuant to congress' § 8 & § 5 powers
 The former cannot abrogate state sovereignty
 The latter can, but only if Congruent & Proportional
to a 14th Amd violation
Boerne Test:


Congruent: remedy must track § 1 violation
Proportional: preventative measures must
be in relation to risk of § 1 harm
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Kimel v. Fla Bd. of Regents (2000)
Boerne Test:
1. Identify the constitutional violation
 Irrational age discrimination; almost never found
since age can be used as a proxy for everything else
2. Congruence
 ADEA is not congruent because it forbids perfectly
lawful discrimination by state and local gov'ts
3. Proportionality
 As a prophylactic measure to prevent unconst. age
discrimination, ADEA is way out of proportion
 Unconst. age discrimination is an inconsequential problem;
 Therefore, this is not an appropriate legislative response
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Univ of Alabama v. Garrett
(2001)
Americans with Disabilities Act (ADA) Title I

Prohibits discrimination by employers (states)
Boerne Test:
1. Identify the constitutional violation
 Discrimination against disabled subject to RB test
 States need not accommodate disabled (if rational)
2. Congruence
 ADA not congruent since it forbids lawful state action
3. Proportionality
 No overwhelming evidence of irrational state discrim.
 Irrational discrim. by cities not relevant since no SI
 § 5 law must be proportional to unconst State action
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Univ of Alabama v. Garrett
(2001)
Boerne Test:
3. Proportionality
 Congress cannot legislate against isolated or
occasional unconstitutional state actions
 There must be widespread pattern of illegality before
it is "appropriate" for congress to legislate against it.
 And the pattern must be found by Congress itself,
not some agency or independent task force
Cumulative impact of Garrett et al.


Congress cannot create new rights
Congress cannot expand scope of
existing rights, beyond S.Ct. rule
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Tennessee v. Lane
(2004)
ADA Title II prohibits
against
same asdiscrimination
Supreme
Court’sby
“indicia
of
qualified individuals
a “public
entity”

suspect class” for
Tennessee stateequal
courthouses
not accessible
protection
Congressional findings:
• disabled are discrete
and insular minority
• history of purposeful discrimination
• unfair stereotype
assumptions
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Tennessee v. Lane
(2004)
Abrogation of 11th Amendment Immunity

Clear statement required
 “States shall not be immune”

Valid enactment (14th amd § 5) required
Boerne test:

Identify const’l rights at stake
 irrational discrimination against disabled
 due process access to judicial system (courts)
 criminal procedure rights (6th am. confrontation)

congruence and proportionality
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Tennessee v. Lane
(2004)
Congruence:

Statutory remedy must match const’l rights
 Aimed at due process violations (strict scrutiny)
Proportionality:

Risk and scope of const’l violation must justify
prophylactic (preventative) measures
 High risk: “pattern of unconstitutional treatment” –
up to 76% of public services were inaccesable
 Scope/breadth: Title II does not over-respond to
const’l violations. Only reasonable accommodations
are required.

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If it did, the Act might be viewed as an attempt to “rewrite
the 14th Amd;”
i.e., create new rights
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Tennessee v. Lane
(2004)
Dissent (Rehnquist on Congruence)

Title II duty to accommodate not limited to
services/actions that trigger strict scrutiny
 Same as to much of the evidence before congress
 Apply rationality standard for physical barriers

Higher standard required for § 5 enactments
when abrogating state sov. immunity
 No widespread pattern of State violations; most
cases cited by congress involved local gov’t, which
doesn’t have 11th Amd immunity
 But, County courts are “arms of the state” for 11th
amd.
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Tennessee v. Lane
(2004)
Dissent (Rehnquist on Proportionality)

Title II applies to instances where failure to
accommodate is lawful (e.g., hockey rinks)
 Scope/breadth: Title II is not overkill simply because
some applications (not before Court) might not pass.
 FACIAL vs. AS-APPLIED unconstitutionality
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Tennessee v. Lane
(2004)
That
a law might
be unconstiRehnquist is wrong:
Dissent
(Rehnquist
on Proportionality)
tutional AS-APPLIED in some
There is no such
 Title II applies to instances where failure to
other
case (not before the Ct) is
thing as FACIAL
accommodate
lawful (e.g., hockey
rinks)
immaterial
to thisiscase
constitutionality
 Scope/breadth: Title II is not overkill simply because
some applications (not before Court) might not pass.
 FACIAL vs. AS-APPLIED unconstitutionality
Dissent (Scalia on Boerne)
Congrence/Proportion’y invites judicial activism
 Replace with strict interpretation of “enforce”

 Dictionary definition (1868).
 No prophylactic laws; only remedial (ex. race discrim)
th Amd?
Why
not
same
approach
for
text
of
11
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