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Sovereign Immunity

Tuesday, November 02, 2010


10:15 AM

The Eleventh Amendment

"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.

• This might be seen as only limiting diversity jurisdiction.


• Its hard to figure out that you can't sue the states at all though.
• However, as we shall see, this is sort of a combination of the Eleventh, 10th Amendment, common law,
and some implicit understanding of the Constitution.
○ Now generally, these are not irrelevant
• Now it’s a little bit of an anomally here because the conservative justices are not being consisten to an
originalist type of viewpoint.

Facts of the Case:


The Seminole Tribe brought suit against the State of Florida for violating the good faith negotiations requirement of
the Indian Gaming Regulatory Act (IGRA). Under the IGRA, the Tribe may engage in gaming (i.e., casino gambling)
activities subject to Florida's good faith regulations. Florida moved to dismiss the Tribe's action, alleging that the
lawsuit violated Florida's sovereign immunity. On appeal from the District Court's denial of Florida's motion to dismiss
the lawsuit, the Court of Appeals reversed, holding that the Eleventh Amendment shielded Florida from federal suit
and that under Ex Parte Young, the Tribe may not enforce its right to good faith negotiations by naming Florida's
governor as a party to the suit.
Question:
Does the Eleventh Amendment provide Florida with immunity from the Tribe lawsuit?
Conclusion:
Yes. In a 5-to-4 decision, The Court held that Congress did intend to abrogate states' sovereign immunity under the
IGRA but that the Indian Commerce Clause (and by implication the Commerce Clause) did not give Congress that
power. Under the Eleventh Amendment, all states are regarded as sovereign entities. Such sovereignty inherently
implies that states may not be sued by parties without their consent, even if they are given authority to regulate those
parties' activities through receipt of federal funds. Finally, Ex Parte Young's ruling does not justify the Tribe's suit
against Florida's governor in light of certain IGRA provisions which specifically prohibit such an action.
Decisions
Decision: 5 votes for Florida, 4 vote(s) against

• The meaning of the 11th Amendment, to not stand so much for what it says but for the pre-supposition
which it confirms.
○ That each state is sovereign
○ That it is inherent in the nature of sovereignty not to be amenable to an individual without their
consent.
 Now this was true in the case of the king of England.

• Now states inherented sovereignity not from the king but from the parliament
○ But the majority doesn't look at this
○ They asume that it is the monarchial sovereignity that the king of England had.

• There is no question that part of the reason that we rebelled against England is that we didn't like the
idea that someone is above the law.
• And if they did, was this undone by the constitution
• In that any sovereign immunity that they might have had is removed by the fact that they must adhere
to federal law.
○ How will they follow federal law if you can't sue them.

Constitutional Law Page 1


Under what circumstances may one abrogate the States' sovereign immunity
1. Whether Congress have unequivocally expressed its intent to abrogate the immunity
2. Is Congress acting "pursuant to a valid exercise of power."

There is nothing in the Constitution that says that states may abrogate state sovereign immunity.
However, over the years, the supreme court had already held that there were two provisions that
allowed abrogation of sovereign immunity.
○ Article 5 of the 14th Amendment
Congress has the power to enforce the 14th Amendment
○ The Commerce clause

• The problem they have is that there is the Pennsylvania union gas case that already said that congress
may use its congress power to abrogate sovereign immunity.
• The court overrules Pennsylvania Union Gas
○ This case is easier to overrule because they didn't have a majority opinion, it was only a 5-4
opinion and one justice went alogn with it but he disagreed with the rationale
 So they are not overruling the rationale, they are just limiting the holding.

• Ex Parte Young
○ Decided in 1908, at a time when the supreme court did not rush out of property and contracts
right
○ Ex Parte Young got around sovereign immunity and you cold go after them for injuctive relief.
 They were violating the constitution, therefore, it could not have been done under the
instructions of the state.
□ Because the state could not instruct its agents to do something when it is illegal.
 F a law violates the constitution, it is not really a law, and a state official
cannot act under this law.
◊ So if you find a state official acting illegally, you could say that the police
officer was acting illegally.
Ex Parte Young is a little bit of a legal fiction because most of the cases around this time have been
overruled
But this particular case cannot be looked upon under Ex Parte Young, because Congress did
actually make it clear that Congress wanted the states as states to be sued for damages.
Therefore, Ex Parte Young has no purchase here.

Souter's Dissent
• He believes that when America adopted the common law, it was under the assumption that they could
adjust it by statute.
• Another very important argument is the fact that we have two sovereigns. So you can't just assume that
we incorporated the English system of sovereign immunity here because what we did is actually alter it
and are using a dual sovereign immunity system.
• Remember that the majority thinks that the 11th Amendment does not stand for what it says but for
the principles

• The Implication is that Congress can abrogate state sovereign immunity whenever it is advantegous
for it to do so.
○ There is a debate between the majority and the senate Han v. Louisiana
 Souter thinks that it was simply based on common law and common law could be
ovrerruled by statute
□ Moreover, Han was not a diversity issue.

• Reihnquist says though that its not based only on the common law of England, but is based on a

Constitutional Law Page 2


• Reihnquist says though that its not based only on the common law of England, but is based on a
broader understanding of sovereignity that exists among all nations.
• It’s a common law doctrince, but common law in the sense that it was explicitly incorporated in the
constitution even though it doesn't say how and where it came from exactly

There are two possible view of 11 Amendment


• For all cases where the state is a defendant in diversity cases, you cannot sue it
• Strips the federal courts of any cases where they would have to rely on federal question jurisdiction
○ He thinks that you can still sue in this case

So the lawsuit only barrs the suing of a state in a diversity issue .


However, the majority has a broader interpretation.

So Souter though, is saysing that one thing that the 11th Amendment is doing is that you can't sue a
state in federal courts without the state's permission when it is a federal question.

Souter also says that you can sue the agent of the state, So he looks at Ex Parte

However, the majority wants to barr more

Notes
Alby v. Maine
• You can't sue a state without its consent in state courts.
• So this is an extension to Seminole Tribes

• But wait a second The 11th Amendment limits what the federal power can do, so how can it be used in
Maine to prevent parties from suing the state in state courts.
○ The want the court in maine did this is by ctually saying that it is a background information and
they rely on the 10th Amendment to say that states should have sovereign immunity in state
courts as well.

Notes starting on page 782


• There is a 14th Amendment Section 5, where the court may use the power of equal protection and
therefore, can abrogate sovereign immunity.
• Now the question is how far can it go?
• The standards is Congruence and Proportionality
○ The law has to be congruent to the goals that Congress is allegedly trying to meet
○ Proportionality - if there is a small problem, you can't pass a massive piece of legislation to
address this small problem.

• Underthe 14th Amendment equal protection there are three standards of review for discriminatory acts
by the state
○ Strict scrutiny - race, alienage
 The state almost looses
 There are certain kinds of affirmative action, strict scrutiny is satisfied
○ Intermediate scrutiny - sex, illegitimacy
 The means chosen has to be substantially related to that standard
○ Rational basis test
 It doesn't have to the most rational.

• Board of Trustees v. Garrett


○ Can Congress strip the states of their sovereign immunity in order to enforce title 1 of the
Americans with disabilities act?
Its going to be hard to find congrues and proportionality because no matter what the basis

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Americans with disabilities act?
 Its going to be hard to find congrues and proportionality because no matter what the basis
is, it doesn't matter.
 The American disabilities act is a commerce power not equal protection.

• However, since disability is subject to the rational basis test, you can't say that something is
unconstitutional discrimination.

Another Case Later Finds the opposite


• The guy had to crawl up the stairs and this was about access to the courts.
• So is it unconstitutional to deny a whole class of people the ability to access the courts.

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Nevada Department of Human Resources v. Hibbs


• You can't sue us for damages because we have sovereign immunity
• Nevada, even if we violated the family and medical leave act we just violated that act…
○ This is a rational basis scrutiny
○ So congress probably didn't actually address this under the 14th Amendment
○ Nevada says that w did have a rational basis
 You missed a lot of work.
• They argue that the discrimination is based on sex rather than the need to get off work, thereby making
this an intermediate scrutiny.

How is this sex discrimination


• Man and women are treated differently because it was traditionally thought that women are the ones
who stay at the house and the only ones deserving of parental leave.
• The FMLA resolves says that they all get 12 weeks.

• The dissent
○ This was not about sex discrimination
○ If it was about sex discrimination why doesn't it say that they must give man and women equal
amount of time.

• Reihnquist
○ Isn't normally pro woman rights
○ However, there are two options
 Maybe he did actually care because his wife died
 Or maybe he took ove rthe opinion so that I doesn ecome overly liberal if some other justice
writes it.

• The five justice still appear to agree though that sovereign immunity may only be abrogated when
congress speaks clearly and it is proprotionl pursuit of congress

• So the only debat here is over the facts of this case

Majority
"Congress ma not abrogate th States' sovereign immunity pursuant to its Article I power over
commerce"

"However, Congress may abrogate States' sovereign immunity through a valid exercise of its Section 5 of
the 14th Amendment, for the purpose that the Eleventh Amendment, and the principle of state
sovereignity which it embodies, are necessarily limited by the enforcement provision of section 5 of the
fourteenth amendment."
• Congress believed that there was a history of states engaging in discriminatory behavior either facially or
in practice.

Constitutional Law Page 4


in practice.

Once they find that the FMLA was aimed not just at the public policy but also aimed at sex
discrimination, we are not looking at sex discrimination.
However, they will claim that they have a rational basis for doing so
And this is a lot harder to do so for the state.

• The idea is that sex discrimination is more important than disability.

• The majority points to cases where the states were engaging in sex discrimination.
• However, this might run counter to the majority because could you really say 30 years later that they
were acting illegal.

Dissent
• Bernstein thinks that the dissenters are right and this was not about sex discrimination.

Notes
• Remember that it has to be congruent and proportional
• But suppose that the majority had concluded that this was not based on sexual discrimination.

So the only way, now, that you can abrogate the sovereign immunit power of the states is through the
14th Amendment and by using Section 5 of the 14th Amendment.
The commerce power is not enough

The principle of state sovereignty found in the 11th Amendment is subject to Section 5 of the 14th
Amendment

THEREFORE, THE ONLY QUESTION HERE IS WHETHER THIS FALLS UNDER THE 14 THE AMENDMENT
(EQUAL PROTECTION

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