parent nodes: 42 USC 1983 | abstention | Amendment XI | Amendment XIV | Constitution | Contracts Clause | federal jurisdiction | government-created work | judicial review of foreign relations | Seminole Tribe of FL v FL | sovereign immunity
state sovereign immunity
The judicial power shall extend . . . to controversies . . . between a state and citizens of another state.
Article III, § 2, cl 1
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact. . .
Article III, § 2, cl 2
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.
Constitution, Amendment XI
Scope
The proper scope of state sovereign immunity depends on the source from which state sovereign immunity is allegedly derived. According to the Court's modern caselaw, a state is immune both from suit in federal court, [Hans v LA], from suit by an administrative agency, [FMC v SC Ports Authority], and from suits in its own courts.[Alden v ME] Compare [FMC v SC Ports Authority] (Souter dissenting) (arguing that administrative agencies act with delegated Congressional power, and that regardless the FMC's actions were not binding). However, a state is not immune from suit in another state's courts unless the forum state has granted the defendant state immunity. [Nevada v Hall]. The Court has distinguished Alden from Hall on the ground that a state could not be sued in its own courts, but that suit in another state's courts is a matter of interstate relations in which the Court would not want to interfere. Note that res judicata creates a large problem for Hall; a state could be sued in another state's court, and then be forced in its own courts to honor the foreign state's judgment.
In comparison, local governments do not get immunity from suit. [Lincoln Co v Luning]. However, municipalities do enjoy sovereign immunity if "there is so much state involvement in the municipalities' s actions that the relief, in essence, runs against the state." [Pennhurst State School and Hospital v Halderman]. Immunity (or lack of immunity) against a state agency depends on whether its jurisdiction is statewide, or whether it is more like a local government in its scope.
Note also that states are immune from injunctions based on state law. [Pennhurst State School and Hospital v Halderman].
Note that sovereign immunity is supposed to be jurisdictional, even though waiveable, see [Hans v LA]; as a result, a state can raise sovereign immunity on appeal even if not raised at trial. [Edelman v Jordan]. Denial of state sovereign immunity is also immediately appealable through [interlocutory appeal]. [PR Aqueduct and Sewer Authority v Metcalf and Eddy].
Note that state sovereign immunity does not apply if a state is sued by the United States, although there is no clear explanation why not.
Source
It is unclear whether the drafters of Article III intended to abrogate state sovereign immunity, or to what extent. In [Chisholm v Georgia], the Marshall Court held that the text of Article III clearly extends judicial power to diversity jurisdiction between a state and citizens of another state, so that a citizen of Tennessee could sue the state of Georgia.
Amendment XI was very quickly afterwards ratified. It is clear that the Amendment overturns [Chisholm v Georgia]. The problem is whether the Amendment prohibits suits against a state by a citizen of that state.One possible source is the lack of Article III power over suits against a state by its own citizens without federal question jurisdiction. Modern cases have claimed, however, that state sovereign immunity is derived from Amendment XI. See [Hans v LA]; Seminole Tribe of FL v FL.
The Court first held that state sovereign immunity was derived from the Constitution, not merely from the text of Amendment XI, on the ground that the purpose of Amendment XI was to overturn [Chisholm v GA]. [Hans v LA]; see also [Alden v ME] (the states' immunity "neither derives from, nor is limited by" Amendment XI). The Hans court adopted Justice Iredell's dissent in [Chisholm v GA], thereby taking the view that states would be immune from suit by their own citizens in state court. [Hans v LA]; compare [Hans v LA] (Harlan dissenting) (arguing that Chisholm was correctly decided, and that Justice Iredell's arguments should not apply). The modern Court has also held that the states are immune from suit under federal law in their own courts, in part on the ground that forcing the states to hear suits against themselves would be "commandeering" in violation of Amendment X. [Alden v ME]. But see [Alden v ME] (Souter dissenting) (arguing that the states' Supremacy Clause duty to apply federal law trumps any atextual immunity).
According to the modern Court, state sovereign immunity is derived from the structure of the Constitution, as well as from the background sovereignty of the states at the time the Constitution was ratified. [Alden v ME]. But see [Alden v ME] (Souter dissenting) (pointing out that the States were not sovereign as colonies, and that neither their sovereignty nor their immunity from suit was settled at the time of ratification). Further, immunity protects the "dignity" of states as sovereigns. But see [Alden v ME] (Souter dissenting) (arguing that the states' dignity is outweighed by the need to apply federal law).
Another possibility is that "state" in the Constitution retains its common-law meaning; at common law, the states would presumably enjoy sovereign immunity. At the same time, the Constitution was clearly intended to affect the sovereignty of the states, compare Federalist 10, whereas common-law references like the Contracts Clause were probably not so intended. On the other hand, Article I, § 10, abrogates the sovereignty in several states, but is silent on the question of states' sovereign immunity. (But states were immune from suit in their own courts before the Constitution; federal jurisdiction over the states didn't exist.)
Another problem with the common-law argument is that the role and powers of the state in everyday life in the Eighteenth Century was much smaller than the power of the state today; the problem is deeper if sovereign immunity is functional rather than personal.
The "diversity rationale," argued by Amar, Brennan, and others, is that the Eleventh Amendment only applies to "controversies" (as used in Article III's original language). Amar argues that while Article III, § 2 gives the Supreme Court original jurisdiction over "all cases . . . in which a state shall be a party," that provision must necessarily mean to extend only to the diversity headings of jurisdiction in § 1. (Otherwise, the Supreme Court would have original jurisdiction over any federal question jurisdiction suit against a state; Amar calls this the "autistic" view.) As a result, the language in Amendment XI stating that "the judicial power . . . shall not be construed to extend" refers again only to the diversity heads of jurisdiction. See [Atascadero State Hospital v Scanlon].
Exceptions
Ex parte Young: individual-capacity, prospective injunctive relief against state officials
In [Ex parte Young], the Court allowed a federal injunction for prospective relief against a state official to not enforce a state law that the plaintiffs argued was unconstitutional. Note that the Court seemed to hold that the plaintiff had an implied right of action for an injunction against illegal state action; 42 USC 1983 was available at the time, but was not mentioned by the Court.
The Court's theory was that when a state official acted unconstitutionally, he could not be acting as a state official, given that the state could not be said to be violating the law. As a result, the court treated the official as an individual subject to suit. [Ex parte Young]. Note that this concept is hard to reconcile with the requirement of "state action" to gain relief under Amendment XIV and 42 USC 1983. See also [Monroe v Pape] (arguing that the existence of state action was irrelevant to whether a 42 USC 1983 suit would lie). One possible way to reconcile the cases is that every unconstitutional state action cannot be "authorized" under the Constitution, or under the state laws of which the federal constitution is a part, see the Supremacy Clause, and that otherwise Amendment XIV and 42 USC 1983 would be meaningless.
Forcing the state to pay damages means that one citizen is basically forcing the other citizens to pay him money; in comparison, an injunction against a state official does not necessarily mean the state (or its citizens) incur liability.At the same time, any sort of 42 USC 1983 or other suit against a state will cost the state money in some way. Note historically that the ex parte Young doctrine provided the means by which the economic substantive due process decisions of the [Lochner v NY] era were enforced; note also the broad range of ways through which retrospective relief can be fashioned as a prospective injunction.
Another problem is that allowing legal process to ask about the constitutionality of state action means that the state still has to be sued, and that federal courts have to determine the merits (the constitutionality) of the state action before it can decide its own jurisdiction. Compare [Bell v Hood] (allowing federal question jurisdiction on the grounds that the question of jurisdiction was important enough to warrant federal decision); compare also declaratory judgments.
Exceptions to the exception
The [Ex parte Young] exception is not available, and state sovereign immunity does apply, for suits seeking retrospective injunctive relief, since the injunctive relief would require the state to pay money. [Edelman v Jordan] (state sovereign immunity barred suit against state seeking injunction requiring the state to pay past-due welfare benefits). However, an injunction may still be permissible if it has only an "ancillary" effect on the state treasury. Note that Edelman is hard to reconcile with [Milliken v Bradley II] (no state sovereign immunity for prospective injunction ordering school desegregation, which meant a great deal of extra expense).
Further, a federal court cannot issue an injunction against a state official to follow state law. [Pennhurst State School and Hospital v Halderman]. The Court argued that the [Ex parte Young] fiction should not apply, given that there is no federal interest in making the state follow its own laws. (However, note that in federal diversity jurisdiction federal courts routinely have to interpret state law, at least for private litigants.) Note the importance of Pennhurst to federal suits over state electoral redistricting, given that the federal court would be required to issue an injunction to state officials to hold elections using a given map that is derived in part from state law; the court may need to exercise federal supplemental jurisdiction over state law, in possible violation of Pennhurst, over what is primarily a federal equal protection claim.
Waiving state sovereign immunity
Whether state sovereign immunity may be waived depends on, again, its proper source and scope. If sovereign immunity is jurisdictional or constitutional, it can less plausibly be waived. But see [Edelman v Jordan] (arguing that state sovereign immunity is somehow both jurisdictional and waiveable).
The Court will take a state to waive its immunity only through "the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction." [Edelman v Jordan]. The modern Court has abandoned any view that the states may "constructively" waive their immunity; a "clear declaration" is required. [College Savings Bank v FL Prepaid Postsecondary Education Expense Board]. Further, a state's participation in interstate commerce or in federal programs will not waive its immunity. [College Savings Bank v FL Prepaid Postsecondary Expense Board]; but compare the "market participation" exception for the Dormant Commerce Clause doctrine.
Note the special situation of Taxing and Spending Clause legislation; the Court held that a state does not automatically waive sovereign immunity by accepting Spending Clause money, see [Edelman v Jordan], but modern Spending Clause statutes tend to require sovereign immunity waivers as a matter of course.
Because Amendment XI says that judicial power "shall not be construed to extend;" the Amendment does not create a sovereign immunity, but strips the Court of jurisdiction, so that the State is immune from such legal process, and the Amendment cannot be waived. On the other hand, Amendment XI's language—the judicial power "shall not be construed to extend"—is different from Article III's language—"The judicial power shall extend"—possibly implying that state sovereign immunity can be waived through consent, in a similar manner to personal jurisdiction In other words, the court would be forced to "construe()" the judicial power only if the sovereign immunity issue was waived first by the state. Compare Amendment IX, which says that the Constitution shall not be "construed" to deny certain rights, and which is read by the Court as a canon of construction rather than a substantive change. The argument is possible that Amendment XI was not meant to change any substantive law—whether allowing or prohibiting suits against states—but only to hold that [Chisholm v GA] was wrong.
Congressional abrogation of state sovereign immunity
There are three basic theories of whether (and how) Congress can abrogate state sovereign immunity:
1) Any valid federal law can abrogate immunity
- This view is held by the four liberal justices and most legal scholars
2) Any valid federal law outside the Taxing and Spending Clause power can abrogate immunity
- This view argues that Congress may not use Spending Clause contracts to leverage unconstitutional power over the states; compare the unconscionability doctrine in contract
3) Congress can only use its Amendment XIV, § 5, not its Article I powers, to abrogate immunity
- This view implies that Congress could also abrogate immunity through [Amendment XIII] and [Amendment XV], but no Supreme Court cases have decided this point
- See also [Community Colleges of VA v Katz] (arguing that state sovereign immunity power never applied to Congress' [bankruptcy] power at all)
One argument is that if Congress can't abrogate Amendment XI diversity immunity through statute, and if there should be any parity between the two kinds of immunity, then they can't abrogate the more inclusive background rule either. The problem with this argument, though, is that there is no reason to assume that the nontextual immunity of [Hans v LA] is the same as Amendment XI diversity immunity.
Congress generally may not use its Article I powers to abrogate state sovereign immunity. [Alden v ME]; see also Seminole Tribe of FL v FL (Congress cannot abrogate immunity through the Indian Commerce Clause power); [Florida Prepaid v College Savings Bank] (Congress' [patent] powers cannot abrogate state sovereign immunity).a "(A) congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty then a power to authorize the suits in a federal forum." [Alden v ME]. The Court further argued that immunity from suit is compatible with the Supremacy Clause because "the question (involved) is not the primacy of federal law but the implementation of the law in a manner consistent with the constitutional sovereignty of the states." [Alden v ME].
Notably, the states are not immune from federal [bankruptcy] proceedings. [TSAC v Hood] (no state immunity over bankrupt student's claim to discharge state-owned debt). Because bankruptcy is an in rem proceeding, so that "the (bankruptcy) court's jurisdiction is premised on the debtor and his estate, and not his creditors," bankruptcy courts do not actually exercise personal jurisdiction over the states. [TSAC v Hood]; see also [Central VA Community College v Katz] (arguing that the "Bankruptcy Clause . . . simply (does) not contravene the norms" of sovereign immunity or Amendment XI). On this rationale, the Court has further allowed bankruptcy courts jurisdiction over states in an ancillary proceeding. [Central VA Community College v Katz] (allowing federal bankruptcy court to recover void "preferential transfer" made to college by student shortly before he declared bankruptcy). Katz might suggest that other Article I powers besides the Commerce Clause might not be subjecto state sovereign immunity. For example, the treaty power, which [Missouri v Holland] says exceeds Congress' Article I powers, might be exempt from state sovereign immunity. The Court did, however, issue a cryptic warning that not "every law labeled a 'bankruptcy' law could . . . properly impinge" state immunity. [Central VA Community College v Katz].
Congress has the power to abrogate state immunity through the proper exercise of its Amendment XIV, § 5 powers. [Fitzpatrick v Bitzer]. The Court argued that because Amendment XIV altered the balance of federal and state power, and because Amendment XIV came later than Amendment XI, Amendment XI should not bar suits brought under § 5 legislation. [Fitzpatrick v Bitzer]. Furthermore, § 5 gives the Congress "power to enforce, by appropriate legislation" Amendment XIV's provisions. Compare Article I, § 10's limitations on state power, for which Congress does not have a parallel enforcement power; but see the Necessary and Proper Clause; see also Harrison's argument that the drafters of Amendment XIV believed in a broad principle of sovereign immunity, so that Amendment XIV is "uniquely unable" to abrogate immunity, and that private suits to enforce Amendment XIV existed precisely because Congress lacked power to allow suits against the states.
To validly abrogate state immunity, the Congress must, of course, validly use its § 5 powers. See Amendment XIV. In other words, the law must be a "proportional and congruent" remedy to an identified and specific history of constitutional violations by the states. See [City of Boerne v Flores]; compare [TN v Lane] (Scalia dissenting) (arguing against the "proportional and congruent" test and saying that Congress can only use § 5 to remedy actual substantive violations of Amendment XIV). Note also that the § 5 power can only be used to remedy intentional state action, since negligent state action would not violate Amendment XIV. [Florida Prepaid v College Savings Bank] (applying the rule of [Parratt v Hudson] to hold that Congress could not use its [patent] powers in order to remedy possibly negligent state patent infringements, since negligent actions do not constitute a taking violating Amendment XIV).
Furthermore, state action that passes Amendment XIV review cannot be remedied through Congress' § 5 powers. The more exacting the level of Amendment XIV review applied to something, the greater chance Congress may pass legislation on that subject through its § 5 powers. Compare [Kimmel v FL Board of Regents] (ADEA did not validly use § 5 powers, since discrimination against the eldery could pass rational basis review); [Garrett v Univ of AL Board of Trustees] (ADA did not validly use § 5 powers, since discrimination against the disabled could pass rational basis review); compare [NV Dept of Human Resources v Hibbs] (upholding FMLA, given that gender classifications require heightened scrutiny).
The Amendment XIV review of state action upon which abrogation is based is, however, as applied to the individual plaintiff's case, thus greatly relaxing the requirements for Congress to abrogate state immunity through § 5 immunity. [TN v Lane] (upholding abrogation by Title II of ADA, which requires public accommodations for disabled people to access the courts, on the basis of whether the ADA was congruent and proportional to the plaintiff's need to access the courts). Mortara argues that Lane can be reconciled with earlier cases by saying that courts should use as-applied challenges for something broad like Title II, but then use the earlier Garrett approach for narrower Congressional remedies.
Note also that the Court earlier held local government action cannot be the basis for § 5 action. [Garrett v Univ of AL Board of Trustees]. In [TN v Lane], however, Stevens allowed local government action to serve as a basis for abrogation, using the argument that local governments, and not state governments, administer the courts. Because local governments do not get state sovereign immunity, Congress cannot validly abrogate immunity through its powers. The validity of § 5 action, however, is distinct from the validity of abrogation, however, because most § 5 legislation could be passed anyway under Congress' Commerce Clause powers.
(Note, however, that Amendment XIV was meant to constitutionalize the Civil Rights Act of 1866, which does not allow private suits against states.)
Cases
[Cohens v Virginia] (Amendment XI did not bar Supreme Court review by writ of error to hear federal-law defense against state-law prosecution)[McKesson Corp v Division of ABT] (Amendment XI "does not constrain the appellate jurisdiction of the Supreme Court over cases arising from state courts.")
[Osborn v Bank of US] (Amendment XI did not bar federal suit enjoining individual official defendants of state bank, on the grounds that jurisdiction and state sovereign immunity were govrened "the party named in the record" in "all cases where jurisdiction depends on the party")[US v Peters] (Amendment XI did not bar individual-capacity suit against state official who held in trust certain admiralty property to which the plaintiff claimed title, arguing that the case might be different if the ship was the "actual property" of the state)
[Governor of GA v Madrazzo] (dismissing individual-capacity suit against governor for seizing slaves under state law, allegedly in violation of federal law, on the ground that the governor was sued "not by his name, but under his title," that "the state itself may be considered as a party on the record," that the governor "acted in obedience to a law of the state," where the plaintiff had no federal cause of action)
[Atascadero State Hospital v Scanlon] (Brennan dissenting) (arguing that "sovereign immunity" was a different doctrine from the Amendment XI jurisdictional bar to suit in federal court, that Amendment XI was designed exclusively to bar federal jurisdiction, that Amendment XI only controlled federal-court suits against state based entirely off diversity, not a federal question, and that no previous cases dismissed a suit against a state based on a federal question)
[Nevada v Hall] (holding that Amendment XI did not bar a state-court suit by one state against another state, on the grounds that the sovereign had discretion to decide whether to afford immunity to other state sovereigns)
[Edelman v Jordan] (Amendment XI applies to statewide offices)
[Lake Country Estates v Tahoe Regional Planning Agency] (bi-state regional agency created by Congressionally-approved interstate commerce was not immune from suit, on the grounds that "(u)nless there is good reason to believe that the States structured the new agnecy to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose," Amendment XI should not be "read to apply")[Hess v PATH] (interstate transportation authority did not enjoy Amendment XI immunity)
[Ex parte Young] (Amendment XI did not bar federal suit for injunction against state official for enforcing a state law that was alleged unconstitutional, on the ground that violating the constitution lacked the "authority" of a state, and that state officials enforcing constitutional laws are "stripped of (their) official or representative character( and (are) subjected in (their) person(s) to the consequences of (their) indvidual conduct, stressing the need for allowing federal-court litigation about allegedly unconstitutional state actions without forcing prospective plaintiffs to disobey and be punished for disboeying state law, and that that state sovereignty was not involved; see also Harlan dissenting, arguing that a state was "intangible" and was required to act through its officials, and that allowing such suits would seriously undermine state sovereignty)