11th Amendment

1
11th Amendment

• Civil Rights Litigation
• Fall, 2006
• Karl Manheim

The opinions expressed here are solely those of
the author and not attributable to Profs. Newman
or Williams
2
Chisholm v. Georgia (1793)

• Background
• Georgia reneges on a revolutionary war debt
• Chisholm (S.Car.) sues GA in Supreme Court
• Jurisdiction
• Const. Art. III, 2 The judicial power shall
  extend to all controversies between a State and
  citizens of another State
• Judicial Act (1789) 14 "The Supreme Court shall
  have original concurrent jurisdiction of all
  controversies between a State and citizens of
  other States and aliens"

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Chisholm v. Georgia (1793)

• Georgia asserts Sovereign Immunity
• Based on state law (derived from common law)
• Two ways SI can operate
• As a rule of jurisdiction
• Sovereign cant be brought into court without
  consent
• As a rule of substantive law (absolute defense)
• The Sovereign (king, State) is not bound by the
  law
• Hard to maintain after Magna Carta
• Hard to maintain in post-1776 America
• Non sub homine, sed sub Deo et lege

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Chisholm v. Georgia (1793)

• What effect does Art. III, 2 have?
• It creates jurisdiction, but no effect on merits
• If SI is a rule of jdx, it is overridden by the
  constitution
• If SI is a substantive rule, GA still gets to
  assert it
• It creates jdx AND establishes substantive law
• Constn (as substantive law) preempts state law
  (SI)
• Holding (4-1) Art. III conferral of jdx implies
  power to issue a judgment against States
• Operates as a rule of substantive law

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Enactment of 11th Amendment

• Text of Amendment (1798)
• 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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Enactment of 11th Amendment

• Text of Amendment (1798)
• 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.

• Article III
• Art. III, 2 The judicial power shall extend
  to all controversies between a State and
  citizens of another State

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Effect of 11th Amend

• Nullifies diversity clause of Art. III, 2
• Overrules Chisholm
• Creates state sovereignty in all suits by
  non-citizens against a state in fed court
• Confers state sovereignty in all cases

8
Effect of 11th Amend

• Nullifies diversity clause of Art. III, 2

• To sue a state in federal court, plaintiff must
  find another Article III basis
• E.g., federal question jurisdiction

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Effect of 11th Amend

• Nullifies diversity clause of Art. III, 2
• Overrules Chisholm

Precursor to Erie

• Federal court must apply state law when hearing
  state claim
• Including that part of state law, if any,
  conferring sovereign immunity on the state
• In other words, if state law confers sovereign
  immunity, a federal court must respect that when
  adjudicating a state claim
• Very few state claims against states in federal
  ct.

10
Effect of 11th Amend

• Nullifies diversity clause of Art. III, 2
• Overrules Chisholm
• Creates state sovereignty in all suits by
  non-citizens against a state in fed court

• States enjoy sovereign immunity whenever in
  federal court
• On state AND federal claims
• Whether or not state law confers immunity on the
  state

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Effect of 11th Amend

• Nullifies diversity clause of Art. III, 2
• Overrules Chisholm
• Creates state sovereignty in all suits by
  non-citizens against a state in fed court
• Confers state sovereignty in all cases

• States are immune on all claims in all courts
• Including federal claims
• Including state court

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Effect of 11th Amend

• Nullifies diversity clause of Art. III, 2
• Overrules Chisholm
• Creates state sovereignty in all suits by
  non-citizens against a state in fed court
• Reaffirms state sovereignty in all cases

Initial interpretation by S.Ct
Adopted in Hans v. Louisiana (1890)
Current interpretation (w/ exceptions)
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Effect of 11th Amend
This rule of constitutional law does not derive
from the 11th amend rather it is read into the
constitution as a background principle

• Nullifies diversity clause of Art. III, 2
• Overrules Chisholm
• Creates state sovereignty in all suits by
  non-citizens against a state in fed court
• Confers state sovereignty in all cases
• States are immune on all claims in all courts
• Including federal claims
• Including state court
• Note this is a rule of substantive law

As a rule of substantive constitutional law, it
applies wherever the suit is filed, including
state court
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Exceptions to Sov. Immunity

• Inapplicable to municipal governments
• Only the state and state agencies enjoy SI
• Inapplicable
• in SCOTUS
• in suits by federal govt or other states
• Stripping Doctrine

• Explicit State Waiver
• Congressional Abrogation

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Stripping Doctrine

• Ex Parte Young (1908)
• States DONT authorize their agents to violate
  federal law
• A state officer violating federal law cannot be
  acting on behalf of the state
• State officer cannot assert the states SI when
  sued on a federal claim
• applies to both constitutional and statutory
  claims

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Limitations on Stripping Doctrine

• Official Capacity Lawsuits
• Must be acting on behalf of state to violate 14th
• Yet, when violating 14th, officer isnt acting
  for state
• State officer must have enforcement authority
  over challenged action
• Only equitable relief available
• Individual Capacity Lawsuits
• Damages available, but only per explicit statute
• Payable only from individual defendant, not State
• 1983 and 1988 are explicit

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Limitations on Stripping Doctrine

• Remedies
• Prospective relief (injunction, decl. relief)
• Retroactive relief (damages, restitution)
• Officer acting ultra vires of state law
• 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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State Waiver of SI

• By statute (e.g., revenue bonds)
• By invoking federal jurisdiction (Clark v.
  Barnard)
• By removing case to federal court (Lapides)
• But not by failing to assert SI as affirmative
  defense

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Congressional Abrogation

• Congress may abrogate the States' Eleventh
  Amendment immunity when it
• unequivocally intends to do so
• acts pursuant to a valid grant of constitutional
  authority

20
Congressional Abrogation

• Congress may abrogate the States' Eleventh
  Amendment immunity when it
• unequivocally intends to do so

• Explicit Abrogation Required
• Congress must make clear that law extends to
  states (Gregory v. Ashcroft) and that enforcement
  suits may be brought against state in federal
  court

21
Congressional Abrogation

• Congress may abrogate the States' Eleventh
  Amendment immunity when it
• unequivocally intends to do so
• acts pursuant to a valid grant of constitutional
  authority

• Art. I, 8 (e.g., commerce clause)
• Pennsylvania v. Union Gas (1989)
• Seminole Tribe of Florida v. Florida (1996)
• 14th Amendment, 5
• 14th amendment postdates 11th
• Intended to constrain states

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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.
• Background principle" of State SI 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 Gaming 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 enforce-ment against
  states of most federal rights

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Section 5 Abrogation

• Text of Amendment
• 1 No state shall make or enforce any law
  which shall abridge the privileges or immunities
  of citizens of the US nor shall any State
  deprive any person of life, liberty, or property,
  without due process of law nor deny to any
  person within its jurisdiction the equal
  protection of the laws
• 5 The Congress shall have power to enforce
  this article by appropriate legislation.

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Appropriate 5 Legislation

• Statute tracking Section 1 remedial
• 1 is self-enforcing re equitable relief
• i.e., a court can enjoin an ongoing violation of
  1 without the need for federal legislation
• Statute needed for 1 legal relief (damages)
• E.g., 42 USC 1983
• Statute expanding Section 1 new rights
• Is legislation creating rights not found in 1
  appropriate to enforce this article ?
• I.e., prohibiting discrimination that 1 would
  permit

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The ADA

• Is the ADA remedial or rights conferring?
• I.e., does it simply provide an additional remedy
  for a 1 violation, or
• Does it create a new right
• To be free from discrimination that is otherwise
  permitted by the equal protection clause
• Does disability discrimination violate 1 ?
• Who determines this? Court or congress?
• How has S.Ct. treated the E.P. clause recently?

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Rights Conferring Legislation

• New rights may sometimes be appropriate
• 5 gives congress authority both to remedy to
  deter violation of rights guaranteed by 1
• Congress may prohibit a somewhat broader swath
  of conduct, including that which is not itself
  forbidden by the Amendments text
• Test for 5 laws creating new rights
• The law must exhibit congruence and
  proportionality between the injury to be
  prevented and the means adopted to that end
• Congress can only respond to state transgressions

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Congruence and Proportionality

• Step 1 Identify 1 limitations on state action

• Disabled are not a suspect class (Cleburne)
• Rational basis test for disability discrimination
• any reasonably conceivable state of facts that
  could provide a rational basis for the
  classification
• States are not required by 1 to make special
  accommodations for the disabled

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Congruence and Proportionality

• Step 2 Is the particular legislation designed to
  prevent state transgressions of 1?
• Congress must identify a pattern of 1 abuse
• i.e., irrational discrimination against disabled
• It failed to do so when passing the ADA
• Compare Voting Rights Act (per 15th amd 2)
• Congress documented a marked pattern of
  unconstitutional action by the States

congruence
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Congruence and Proportionality

• Step 3 does the pattern of state abuse justify
  Congress preventative measures?
• How far do the statutory proscriptions exceed the
  requirements of 1
• Serious state abuses might justify far reaching
  prophylactic measures by congress
• i.e., is congress reaction proportional to the
  constitutional violation
• Here, the ADAs accommodation duty far exceeds
  what is constitutionally required

proportionality
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Result

• ADA cannot be justified under 14th amd 5
• Therefore, cannot abrogate state sovereignty
• Therefore, no damages claims against states
• ADA also passed under commerce clause
• Congress has broad Art. I, 8 authority
• ADA may be constitutional under that authority
• Congress cannot use 8 to abrogate sov. Immunity
• ADA still valid against non-State entities
• Private parties
• municipalities

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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 constl understandings

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Alden v. Maine (1999)

• New 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 soverty viz individuals
  (supremacy)
• delegation did not include relinquishment of
  immunity
• Nice theory but is it law?

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Recap

• 11th Amendment limits federal jurisdiction
• States may not be sued w/o consent in fed ct
• State officers may be sued - stripping doctrine
• Only for equitable relief
• Damage action requires valid cong. abrogation
• 11th Amendment limits statutory rights
• States may not be sued in any court for damages
  w/o valid congressional abrogation
• Can only abrogate under 14th amd 5 (and 15th 2)
• Requires congruence and proportionality

This is not really the result of 11th amend, but
the corresponding doctrine of state sovereignty
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