2.10 SOVEREIGN IMMUNITY

Critics argue that such trust has no role in constitutional jurisprudence; government at times will violate the law and must be held accountable.

§2.10.1 History of the Ratification of the Eleventh Amendment

Because state governments always act through their officers, suits against officers are clearly the most important way around the Eleventh Amendment.

§2.10.4.1 Suits Against State Officers for Injunctive Relief

Supporters maintain that there are (a) adequate other ways (b) of holding state governments accountable, (c) such as suits against state officers (d) and suits by the federal government.

CRITICS OF SOVEREIGN immunity argue (a) that it is a principle not found (b) in the text of the Constitution (c) or intended by its framers.

He labeled as "incomprehensible" the claim that Article III allowed states to be plaintiffs, but not defendants.

Henry said "[t]here is nothing to warrant such an assertion.... What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant."

One group argued that the text of Article III clearly made states subject to suit in federal court.

In Virginia, George Mason opposed ratification of the Constitution and particularly disliked the provisions that made the states liable in federal court:

ALTHOUGH THE ELEVENTH AMENDMENT is over 200 years old, there still is no agreement as to what it means or what it prohibits.

In fact, several different theories have been developed to interpret it. The theory chosen determines the scope of the Eleventh Amendment and the circumstances under which states may be sued in federal courts.

Claims respecting those lands, every liquidated account, or other claim against this state, will be tried before the federal court.

Is not this disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender?

THE SUPREME COURT has devised three primary mechanisms for circumventing the Eleventh Amendment and allowing federal courts to ensure state compliance with federal law.

Specifically, the Court has (a) allowed suits against state officers, (b) permitted states to waive their Eleventh Amendment immunity and consent to suit, and (c) sanctioned litigation against the states pursuant to statutes adopted under the Fourteenth Amendment.

Opponents of sovereign immunity argue that it (a) wrongly favors government immunity (b) over accountability and (c) is inconsistent with (d) the very notion of a government under law.

State governments can violate the Constitution and nowhere be held accountable.

HOWEVER, AT THE state ratification conventions the question of suits against state governments in federal court was raised and received a great deal of attention.

States had incurred substantial debts, especially during the Revolutionary War, and there was a great fear of suits being brought against the states in federal court to collect on these debts.

IN ALDEN V. MAINE, Justice Kennedy expressly addressed concerns about accountability and declared:

THE CONSTITUTIONAL PRIVILEGE of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law.

Overview of §2.10.4

THESE PRINCIPLES ARE examined in detail in this section, which considers the ability to sue state officers in federal court.

THIS RECOUNTING OF the ratification debates reveals that there was no consensus, even among the Constitution's supporters, about whether state sovereign immunity survived Article III.

Yet, as discussed more fully below, the Supreme Court has barred states from being sued by their own citizens, in large part based on its belief, supported by quotations from Madison and Hamilton, that Article III was not intended to authorize states to be sued without their consent.

THERE HAVE BEEN literally dozens of Supreme Court decisions defining the scope of the Eleventh Amendment...

...and delineating what suits are prohibited in federal court and what suits are permissible.

For instance, the first theory accords great importance to sovereign immunity and federalism...

...but less weight to ensuring state compliance with the Constitution.

The Eleventh Amendment states: "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."

1. As interpreted, the 11th Am. prohibits 2. suits in federal courts against 3. state governments (in law, equity, or admiralty), by (a) a state's own citizens, (b) by citizens of another state, or (c) by citizens of foreign countries.

This section describes this law. Postponed for consideration until the subsequent sections is discussion of three major ways around the Eleventh Amendment:

1. suits against state officers for injunctive relief or money damages; 2. suits based on state consent to federal court jurisdiction; and 3. suits pursuant to congressional statutes, especially those pursuant to civil rights laws.

These are the clauses that the Eleventh Amendment modified, and these are the provisions that are frequently discussed in interpretations of the Eleventh Amendment.

A KEY MATTER in dispute is whether the above-quoted language of Article III was meant to override the sovereign immunity that kept states from being sued in state courts.

§2.10 SOVEREIGN IMMUNITY

AS A LIMIT ON THE FEDERAL JUDICIAL POWER

Did Article III Override Sovereign Immunity? The Early Debate

AS DESCRIBED EARLIER, Article III of the Constitution defined the federal judicial power in terms of nine categories of cases and controversies.

In reviewing the Eleventh Amendment's history, the Supreme Court observed that "[a]t most, then, the historical materials show that ... the intentions of the framers and Ratifiers were ambiguous."

Chisholm v. Georgia

The case law concerning the Eleventh Amendment often has been conflicting and inconsistent as the Court has struggled to articulate a standard that protects state autonomy while still ensuring state compliance with federal law.

Commentators have labeled these decisions as a "tortuous line of Supreme Court cases"4 and as "little more than a hodgepodge of confusing and intellectually indefensible judge-made law."5

§2.10.2 What Does the Eleventh Amendment Mean?

Competing Theories of the Eleventh Amendment

The good faith of the States thus provides an important assurance that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land." U.S. Const., Art. VI.8

DEFENDERS OF SOVEREIGN IMMUNITY say that the doctrine properly puts trust in governments.

From a practical perspective, there is great uncertainty in the current law concerning (a) when state governments may be sued and (b) which actions are barred.

From a policy perspective, (a) it raises profound questions about (b) the appropriate role of the judiciary.

An expansive reading of the Eleventh Amendment effectively immunizes the actions of state governments from federal court review, even when a state violates the most fundamental constitutional rights.

Hence, the Eleventh Amendment protects state autonomy by immunizing states from suits in federal court, but it provides this independence by risking the ability to enforce basic federal rights.

Although the Eleventh Amendment has been part of the Constitution since 1795, there still is no agreement as to its proper scope.

In fact, several very different theories have been offered as to the appropriate meaning of the amendment. The choice of theory is likely to be determinative of most questions that arise concerning the effect of the Eleventh Amendment.

MASON BELIEVED THAT Article III's explicit provision for suits against the states would have the effect of abrogating the states' sovereign immunity defense.

LIKEWISE, PATRICK HENRY opposed the Constitution at the Virginia convention, in part based on his belief that Article III unmistakably permitted litigation against states in federal court.

Subsection 2.10.4.1 discusses suits against state officers for injunctive relief in federal court.

Monetary relief in suits against state officers is examined in §2.10.4.2.

Underlying Policy Issues

SOVEREIGN IMMUNITY IS a topic of great significance in current law.

More generally, the concern was expressed that although sovereign immunity was a defense to state law claims in state court, it would be unavailable if the same matter were raised against a state in a diversity suit in federal court.

THUS, AT THE state ratification conventions there was a debate over whether states could be sued in federal court without their consent.12

As Justice Kennedy, writing for the Court in Alden v. Maine, declared: "[S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself."

The 11th Am. and sovereign immunity are particularly important in (a) defining the relationship between the federal and state governments AND (b) in determining the scope of constitutional protections.

Additionally, in 1999 the Supreme Court held that sovereign immunity bars suits against state governments in state court without their consent.

The Court thus has ruled that there is a broad principle of sovereign immunity that applies in both federal and state courts; the Eleventh Amendment is a reflection and embodiment of part of that principle.

As Justice Souter observed, "The 1787 draft in fact said nothing on the subject and it was this very silence that occasioned some, though apparently not widespread dispute among the framers and others over whether ratification of the Constitution would preclude a state sued in federal court from asserting sovereign immunity as it could have done on any nonfederal matter litigated in its own courts."11

There is no record of any debate about this issue or these clauses at the Constitutional Convention.

Finally, exceptions to the ability to sue officers are discussed in §2.10.4.3. T

These exceptions include the prohibition against pendent state law claims against state officers, the preclusion of suits against officers to enforce federal laws that have a comprehensive enforcement mechanism, and a narrow exception for suits against state officers to quiet title to submerged land.

Two of the clauses of Article III, §2, specifically deal with suits against state governments.

These provisions permit suits "between a State and Citizens of another state" and "between a State ... and foreign ... Citizens."

Importance of Sovereign Immunity

The doctrine of sovereign immunity is a major limit on on the federal judicial power (and now also the authority of state courts as well). Sovereign immunity in the federal courts is based on the Supreme Court's interpretation of the Eleventh Amendment.

The consensus among historians is that states were particularly concerned about the Chisholm decision because they feared suits against them to collect unpaid Revolutionary War debts. Also, there was fear that British creditors and American Tories whose property was seized during the war would sue the states to recover their assets.

The fact that such suits already had been filed in South Carolina, Georgia, Virginia, and Massachusetts indicated that it was not an idle fear. Thus, within a fewy ears after Chisholm, the Eleventh Amendment was adopted to prohibit federal courts from hearing suits against a state by citizens of another state or of a foreign country.

On the one hand, supporters of sovereign immunity argue that (a) it was a principle that predates the Constitution and (b) is part of the very structure of that document.

They maintain that (a) safeguarding state governments, (b) and particularly their treasuries, (c) is deeply embedded in the Constitution.

As Professors Low and Jeffries observed: "The stakes involved in interpreting the Eleventh Amendment are potentially very high. Virtually the entire class of modern civil rights litigation plausibly might be barred by an expansive reading of the immunity of the states from suit in federal court."

UNWILLING HOWEVER TO trust state courts completely to uphold and enforce the Constitution and federal laws, the Supreme Court has devised a number of ways to circumvent the broad prohibition of the Eleventh Amendment and to ensure federal court review of allegedly illegal state actions.

Underlying Value Question

Ultimately, the choice among the two theories is, in large part, a value question: How should state sovereignty be weighed against federal supremacy?

The States and their officers are bound by (a) obligations imposed by the Constitution (b) and by federal statutes that comport (c) with the constitutional design.

We are unwilling to assume the States will refuse to (a) honor the Constitution or (b) obey the binding laws of the US

§2.10.3 The Application of the Eleventh Amendment:

What's Barred and What's Allowed

In contrast, the second theory makes the opposite choice:

subjecting states to liability whenever they violate federal law, but according relatively little weight to state sovereign immunity.

Eleventh Amendment doctrines—and sovereign immunity more generally—

thus reflect baseline assumptions about both the need for court review to ensure state compliance with federal law and the importance of immunizing state governments from federal jurisdiction.