Suits Against a State
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.
The Eleventh Amendment was ratified in 1795 as a response to the Supreme Court’s decision in Chisholm v. Georgia (1793). Chisholm had held that the federal courts could hear suits by individuals against state governments for money damages, notwithstanding the sovereign immunity that the states had traditionally enjoyed at common law. The resulting furor—based largely on concerns that the states would be held accountable for their Revolutionary War debts—gave rise to the Eleventh Amendment, which established a fairly narrow textual bar to jurisdiction in cases like Chisholm itself. Chisholm was the first major constitutional decision of the new Court, and the Eleventh Amendment reversed it, eight years before Marbury v. Madison (1803).
The notion of sovereign immunity predates the Eleventh Amendment, having its origins in the English common law as well as notions of unitary sovereignty associated with thinkers like Thomas Hobbes and Jean Bodin. The Framers were aware of the traditional doctrine that the states were immune from private lawsuits as sovereign entities, and some Anti-Federalists feared that Article III, Section 2, of the Constitution— which declares that the federal judicial power extends to suits “between a State and Citizens of another State”—would override that doctrine. Several key Framers—including Alexander Hamilton, James Madison, and John Marshall—are on record denying that the Constitution would, of its own force, deprive the states of this immunity. The more difficult questions are ones that the Framers did not confront directly: Did the states’ immunity apply in suits based on federal law, as opposed to the state common law claim relied upon in Chisholm? And was that immunity constitutional in stature, or could Congress abrogate it by statute?
The Supreme Court answered the first question in Hans v. Louisiana (1890), holding that the Eleventh Amendment bars private suits against the states even where federal jurisdiction is based on a federal question rather than diversity. The Court reached this conclusion even though the amendment’s text appears to bar jurisdiction only in suits “by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Court reasoned that it would be anomalous to allow Hans—a Louisiana native—to sue in circumstances where out-of-staters would be barred. The best explanation of this holding, relied upon in more recent cases, is that the sovereign immunity enjoyed by the states at the Founding was broadly applicable to all sorts of suits, and the Eleventh Amendment was intended only to fill the gap in that preexisting immunity created by the Court’s decision in Chisholm. After Hans, the Court extended the states’ immunity in a number of other ways inconsistent with the amendment’s text, holding that the immunity applies in admiralty (notwithstanding the textual limitation to “suit[s] in law or equity”) and in suits by foreign sovereigns and Indian tribes (notwithstanding the textual limitation to “Citizens” of a “State” or “Foreign State”).
The second question—whether Congress may abrogate the states’ sovereign immunity— has preoccupied the Court more recently. There is little doubt that the states enjoyed, at the founding, the sort of sovereign immunity recognized in common law. Most common law doctrines, however, are subject to legislative override. Debates at the Constitutional and ratification conventions focused on whether Article III was itself intended to override this traditional immunity; they did not address, however, whether Congress could do so by later legislative enactment. The Court’s decision in Seminole Tribe of Florida v. Florida (1996) held that Congress may not abrogate state sovereign immunity, at least when it acts pursuant to its enumerated powers in Article I of the Constitution. Seminole Tribe determined that the states’ traditional immunity was not a mere holdover from the common law but rather a basic principle of the constitutional structure.
Three years later, in Alden v. Maine (1999), the Court held that, notwithstanding the amendment’s limited application to “[t]he Judicial power of the United States,” Congress also lacked power to override state sovereign immunity for suits in state court. Alden frankly acknowledged that no such principle could be gleaned from the amendment’s text; the Court relied, however, on a structural principle that predated the text and applied much more broadly. The phrase “Eleventh Amendment immunity,” Justice Anthony Kennedy said, is “something of a misnomer.” He went on: “Sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself.”
Notwithstanding Seminole Tribe and Alden, however, Congress retains power to abrogate state sovereign immunity when it acts pursuant to its power to enforce the Reconstruction Amendments (i.e., the Thirteenth, Fourteenth, and Fifteenth). Several reasons have been given for this: those amendments postdate the Eleventh, they were designed by the Civil War victors to cut back on state sovereignty, and their textual grant of power to Congress to “enforce” their provisions may extend to subjecting the states to monetary remedies for violations. Although the Court decided the leading case on the enforcement power—Fitzpatrick v. Bitzer—in 1976, its more recent decisions have all reaffirmed that precedent.
In order to take advantage of the Fitzpatrick exception, Congress and private litigants have sought to rethink a number of federal statutory schemes originally enacted under the Commerce Clause as efforts to enforce the Fourteenth Amendment. The Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) decision rejected Congress’s attempt to use Section 5 of the Fourteenth Amendment to abrogate state sovereign immunity in patent and false-advertising suits as a means of preventing deprivations of property without due process of law. More recently, Kimel v. Florida Board of Regents (2000) and Board of Trustees of the University of Alabama v. Garrett (2001) rejected claims that state liability under the Age Discrimination in Employment Act (ADEA) and Americans with Disabilities Act (ADA) would validly remedy violations of the Equal Protection Clause. Nonetheless, abrogation under the enforcement power is appropriate when a high proportion of statutory violations are also constitutional violations of rights protected by Section 1 of the Fourteenth Amendment. Thus, Nevada Department of Human Resources v. Hibbs (2003) held that Congress may subject a state to suits for money damages by state employees in the event of the state’s failure to comply with the family-care provision of the Family and Medical Leave Act. Hibbs and similar cases suggest that narrowly drawn abrogation statutes can pass muster under Section 5 of the Fourteenth Amendment, particularly where the rights being enforced call for heightened judicial scrutiny.
More recently, the Court has suggested that Congress may abrogate state sovereign immunity pursuant to some of its other enumerated powers. In Central Virginia Community College v. Katz (2006), the Court held that state sovereign immunity did not bar a bankruptcy trustee’s suit, under the federal bankruptcy statute, to set aside a preferential transfer to a state agency. Much of the Court’s opinion was devoted to the unique history, purpose, and nature of the Bankruptcy Clause in Article I, and it is difficult to know whether Katz’s reasoning can be extended to other enumerated powers.
In addition to abrogating state immunities under Section 5 of Amendment XIV, Congress retains other important tools for holding state actors accountable for violations of federal law. Congress can, for example, require the states to waive their immunities as a condition for receipt of federal grants under the Spending Clause (Article I, Section 8, Clause 1). Furthermore, state sovereign immunity has never been understood to bar suits by the United States itself. Federal enforcement agencies thus may continue to enforce the ADEA and ADA against state governments. Nor does state immunity bar claims against state officers for injunctive relief under the doctrine of Ex parte Young (1908) or (when the officer is sued in his personal capacity) for money damages. So long as these options exist, the sovereign immunity embodied in the Eleventh Amendment and its extratextual background principles will tend to force suits against the states into certain channels without entirely eliminating the possibility of relief.
Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 HARV. L. REV. 1817 (2010)
William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983)
Alfred Hill, In Defense of Our Law of Sovereign Immunity, 42 B.C. L. REV. 485 (2001)
Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988)
Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1 (1996)
John E. Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM.L.REV. 1413 (1975)
JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987)
Ernest A. Young, Its Hour Come Round at Last? State Sovereign Immunity and the Great State Debt Crisis of the Early Twenty-First Century, 35 HARV. J.L. & PUB. POL’Y 593 (2012)
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Hans v. Louisiana, 134 U.S. 1 (1890)
Ex parte Young, 209 U.S. 123 (1908)
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
Alden v. Maine, 527 U.S. 706 (1999)
College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd., 527 U.S. 666 (1999)
Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999)
Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)
Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003)
Central Virginia Community College v. Katz, 546 U.S. 356 (2006)