Eleventh Amendment – XI 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.

Fitzpatrick v. Bitzer (1976)– The Supreme Court has the power to override a state’s sovereign immunity for the purpose of enforcing civil rights on the state.

Other Interesting Facts About the Eleventh Amendment

States may always “consent” to lawsuits that are barred by the Eleventh Amendment. If the state consents, any case may be heard.

Lawsuits can be brought in federal court against a state’s cities, counties, and municipalities, but usually not against the state itself.

When a state violates federal law, the state itself can’t be sued in federal court. However, a federal court can order state officials (by their own name) to follow the law.

Suits against states by other states or by the United States government to enforce federal laws are allowed. source

State Immunity under the 11th Amendment

Remember the Eleventh Amendment? You know, the constitutional amendment that prohibits the federal courts from hearing certain lawsuits against states? If you clear out the cobwebs that have formed since your 1L year, you’ll remember that the Eleventh Amendment ensures that states retain their sovereign status within the federal system. As a result, states are generally immune from suits brought by private parties and foreign governments in federal court. This immunity also extends to suits brought against a state official for violating a federal law—with some exceptions (see table below).

However, Eleventh Amendment immunity does not extend to any of the following:

• suits brought by the United States or another state
• suits asserted against a local government (e.g., city, county)
• suits initiated in bankruptcy court.

UWorld condensed the nuances of state immunity under the Eleventh Amendment into the following table:

Remember that Congress cannot override a state’s Eleventh Amendment immunity through its enumerated powers (e.g., power to regulate interstate commerce, power to protect copyrights and patents). However, it can abrogate or repeal a state’s immunity by clearly acting to enforce any of the Civil War Amendments, which are described in the following table:

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What is the 11th Amendment?

The 11th Amendment of the Constitution reads as follows: “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 has two explicit meanings.

First, it means that the Supreme Court can’t hear cases against a state if it is sued by either a citizen who lives in another state or a non-citizen who lives in a foreign country.

Second, it means that because states don’t have “sovereign immunity,” states can sue other states, and the federal government can sue states.

But there are some exceptions.

What are some exceptions to the 11th Amendment?

History has some specific examples of exceptions to the 11th Amendment.

In the 1890 case of Hans vs. Louisiana, the Supreme Court ruled that citizens of states cannot sue their states for cases that the federal courts need to hear.

This case was controversial because it left open whether citizens could sue their state in state courts.

This case was ultimately resolved in 1999, in the case of Alden vs. Maine.

In the Alden case, it was ruled that “state’s sovereign immunity forecloses suits against a state government in state court.”

In this case, the Seminole Native American tribe sued the state of Florida for violating the good faith negotiations requirement of the Indian Gaming Regulatory Act.

But in this case, the courts ruled in a 5-4 decision that the state of Florida did have sovereign immunity from a lawsuit.

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Amdt11.5.1 General Scope of State Sovereign Immunity

Eleventh Amendment:

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.

In its 1890 decision, Hans v. Louisiana, the Supreme Court adopted Justice James Iredell’s position in Chisholm v. Georgia, that the states, as sovereigns, were immune from suit by their citizens under long-standing principles grounded in the common law.¹ In Hans v. Louisiana,² a resident of Louisiana brought a suit against that state in federal court under federal question jurisdiction, alleging a violation of the Contract Clause in the state’s repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only entertaining a suit against a state by citizens of another state, or citizens or subjects of a foreign state, the Court reasoned that the scope of the Eleventh Amendment was informed by the scope of Article III, Section 2, Clause 1, which provided federal courts jurisdiction over suits between a state and citizens of another state and foreign States, citizens or subjects. The court noted that the Eleventh Amendment was a result of the shock of surprise throughout the country at the Chisholm decision, which contravened long-established common law precedent that a sovereign cannot be sued absent its consent, and reflected the general consensus that the decision was wrong, and that federal jurisdiction did not extend to making defendants of unwilling states in lawsuits brought by individuals.³

In the Hans Court’s view, the Eleventh Amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. Delivering the Court’s opinion, Justice Joseph Bradley stated: The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. The suability of a State without its consent was a thing unknown to the law.⁴ The Court reasoned that the Eleventh Amendment’s silence on whether a citizen of a state could sue that state should not be construed as permitting such suits. Instead the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing,⁵ led the Court unanimously to hold that states could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States.

In line with Hans, the Court held, in Ex parte New York (No. 1),⁶ that, absent its consent, a state was immune to suit in admiralty, the Eleventh Amendment’s reference to any suit in law or equity notwithstanding. Writing for the Court, Justice Mahlon Pitney stated: That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification . . . . It is true the Amendment speaks only of suits in law or equity; but this is because the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case.⁷ Just as Hans v. Louisiana had demonstrated the impropriety of construing the Amendment so as to permit federal question suits against a state, Justice Mahlon Pitney reasoned, it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its own citizens or not.⁸

The Court has continued to rely on Hans⁹ although support for it has not been universal.¹⁰ In 1996, the Court further solidified Hans in Seminole Tribe of Florida v. Florida,¹¹ holding that Congress lacks power under Article I to abrogate state immunity under the Eleventh Amendment. And, in 1999, the Court ruled in Alden v. Maine¹² that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits against states in state courts as well as federal.

Having previously reserved the question of whether federal statutory rights could be enforced in state courts,¹³ the Court in Alden v. Maine¹⁴ held that states could also assert Eleventh Amendment sovereign immunity in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a misnomer¹⁵ as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent compelling evidence that the states had surrendered such by ratifying the Constitution. Although this immunity is subject to the same limitations as apply in federal courts, the Court’s decision effectively limited applying significant portions of federal law to state governments.¹⁶ Both Seminole Tribe and Alden were 5-4 decisions with four dissenting Justices maintaining that Hans was wrongly decided.

This split continued with Federal Maritime Commission v. South Carolina State Ports Authority,¹⁷ which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. In this case, the operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984.¹⁸ Justice Stephen Breyer, writing for the four dissenting Justices, emphasized the executive (as opposed to judicial) nature of such agency adjudications, noting that the ultimate enforcement of such proceedings in federal court was exercised by a federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while admitting to a relatively barren historical record, presumed that when a proceeding was unheard of at the time of the founding of the Constitution, it could not subsequently be applied in derogation of a State’s dignity within our system of federalism.¹⁹

Footnotes

1. Footnotes

   1.  Jump to essay-1134 U.S. 1 (1890).
   2.  Jump to essay-2Id. at 11.
   3.  Jump to essay-3Id. at 13–14.
   4.  Jump to essay-4Id. at 15, 16.
   5.  Jump to essay-5134 U.S. at 18. The Court acknowledged that Chief Justice John Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382–83, 406–07, 410–12 (1821), was to the contrary, but observed that the language was unnecessary to the decision and thus dictum, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion. 134 U.S. at 20.
   6.  Jump to essay-6256 U.S. 490 (1921).
   7.  Jump to essay-7Id. at 497–98.
   8.  Jump to essay-8Id. at 498. See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982); Welch v. Texas Dep’t of Highways and Transp., 483 U.S. 468 (1987).
   9.  Jump to essay-9E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–103 (1984) (opinion of the Court by Justice Lewis Powell); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237–40, 243–44 n.3 (1985) (opinion of the Court by Justice Lewis Powell); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–74, 478–95 (1987) (plurality opinion of Justice Lewis Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (Justice Antonin Scalia concurring in part and dissenting in part); Dellmuth v. Muth, 491 U.S. 223, 227–32 (1989) (opinion of the Court by Justice Anthony Kennedy); Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion of Justice Byron White); id. at 105 (concurring opinions of Justices Sandra Day O’Connor and Antonin Scalia); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of the Court by Justice Sandra Day O’Connor).
   10.  Jump to essay-10E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985) (dissenting); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (dissenting); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 309 (1990) (concurring). Joining Justice William Brennan were Justices Thurgood Marshall, Harry Blackmun, and John Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring).
   11.  Jump to essay-11517 U.S. 44 (1996).
   12.  Jump to essay-12527 U.S. 706 (1999).
   13.  Jump to essay-13Employees of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973). 16. 527 U.S. 706 (1999).
   14.  Jump to essay-14527 U.S. 706 (1999).
   15.  Jump to essay-15527 U.S. at 713.
   16.  Jump to essay-16Note, however, that at least one subsequent decision has seemingly enhanced the applicability of federal law to the states themselves. In PennEast Pipeline Co. v New Jersey (595 U.S. —), the Court held that a private company that was granted authority to exercise eminent domain by the federal government could exercise that authority to take possession of property interests owned by a state.
   17.  Jump to essay-17535 U.S. 743 (2002). Justice Breyer’s dissenting opinion describes a need for continued dissent from the majority’s sovereign immunity holdings. 535 U.S. at 788.
   18.  Jump to essay-1846 U.S.C. §§ 40101 et seq.
   19.  Jump to essay-19535 U.S. at 755, 760.

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Amdt11.5.2 Nature of States’ Immunity

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.

Hans v. Louisiana and Ex parte New York note that Chisholm was erroneously decided and that the Amendment’s intent was to restore the original understanding that a state could not be sued without its consent, and that nothing in the Constitution, including Article III’s grants of federal court jurisdiction, was intended to provide otherwise. In Edelman v. Jordan,¹ the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. The Court stated: [I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.² But that the bar is not wholly jurisdictional seems established as well.³

Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit⁴ becomes conceptually difficult, as jurisdiction may not be conferred if the state refuses its consent.⁵ And Article III jurisdiction exists for some suits against states, such as those brought by the United States or by other states.⁶ Furthermore, Congress is able, in some instances, to legislate away state immunity,⁷ although it may not enlarge Article III jurisdiction.⁸ The Court has declared that the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art. III, while acknowledging that [a] sovereign’s immunity may be waived.⁹

Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: a state was not subject to suit without its consent.¹⁰ Modern case law supports this view. In the 1999 Alden v. Maine decision, the Court stated: the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today¹¹ The Court, in dealing with questions of governmental immunity from suit, has traditionally treated precedents dealing with state immunity and those dealing with Federal Governmental immunity interchangeably.¹² Viewing the Amendment and Article III this way explains consent to suit as a waiver.¹³ The limited effect of the doctrine in federal courts arises from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own courts or the courts of another sovereign. But upon entering the Union the states surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but that is more than their coequal.¹⁴

Within the area of federal court jurisdiction, the issue becomes the extent to which the states, upon entering the Union, ceded their immunity to suit in federal court. Chisholm held—and the Eleventh Amendment reversed —that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment, in effect, recognized state immunity to suits based on federal causes of action.¹⁵ Other cases have held that states ceded their immunity to suits by the United States or by other states.¹⁶

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the Federal Government’s power.¹⁷ In this respect, the federal courts may not act without congressional guidance in subjecting states to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially created doctrines requiring it to be explicit when it legislates against state immunity.¹⁸

Questions regarding the constitutional dimensions of sovereign immunity have arisen in the context of interstate sovereign immunity when a private party institutes an action against a state in another state’s court. In the now-overturned 1979 decision of Nevada v. Hall, the Court held that while states are free as a matter of comity to accord each other immunity or to respect any established limits on liability, the Constitution does not compel a state to grant another state immunity in its courts.¹⁹ In Hall, California residents who were severely injured in a car crash with a Nevada state university employee on official business sued the university and the State of Nevada in California court.²⁰ After considering the scope of sovereign immunity as it existed prior to and in the early days of independence, the doctrine’s effect on the framing of the Constitution, and specific aspects of the Constitution that qualify the sovereignty of the several States, such as the Full Faith and Credit Clause,²¹ the Court concluded that [n]othing in the Federal Constitution authorizes or obligates this Court to frustrate California’s policy of full compensation in its courts for injuries on its highways resulting from the negligence of state or non-state actors out of enforced respect for the sovereignty of Nevada.²²

Forty years later, the Court overruled Hall in Franchise Tax Board of California v. Hyatt (Franchise Tax Board III), holding that States retain their sovereign immunity from private suits brought in the courts of other States.²³ Franchise Tax Board III involved a tort action by a private party against a California state agency in Nevada’s courts.²⁴ The sole question before the Court was whether to overrule Nevada v. Hall, a question over which the Court divided in 2016.²⁵ As the majority in Franchise Tax Board III read the historical record, although interstate sovereign immunity may have existed as a voluntary practice of comity at the time of the Founding, the Constitution fundamentally adjust[ed] the States’ relationship with each other and curtail[ed] their ability, as sovereigns, to decline to recognize each other’s immunity.²⁶ The Court reiterated the view embraced in several of its decisions since Hall that in proposing the Eleventh Amendment in response to Chisholm v. Georgia, Congress acted not to change but to restore the original constitutional design.²⁷ Accordingly, the Court explained, the sovereign immunity of the States . . . neither derives from, nor is limited by, the terms of the Eleventh Amendment.²⁸ Moreover, the Court reasoned, [n]umerous provisions in the Constitution support the view that interstate sovereign immunity is embe[dded] . . . within the constitutional design.²⁹ Among other provisions, the Court cited Article I insofar as it divests the States of the traditional diplomatic and military tools that foreign sovereigns possess and Article IV’s Full Faith and Credit Clause, which requires that state-court judgments be accorded full effect in other States and preclude[s] States from ‘adopt[ing] any policy of hostility to the public Acts’ of other States.³⁰ Accordingly, because sovereign immunity was inherent in the constitutional design, the Court concluded that the State of California could not be sued in Nevada absent the former state’s consent.³¹

Footnotes

1.  Jump to essay-1415 U.S. 651 (1974).
2.  Jump to essay-2415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945), where the issue was whether state officials who had voluntarily appeared in federal court had authority under state law to waive the state’s immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional issue on its own motion.
3.  Jump to essay-3See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in which the Court bypassed the Eleventh Amendment issue, which had been brought to its attention, because of the interest of the parties in having the question resolved on the merits. See id. at 520 (Justice Lewis Powell dissenting).
4.  Jump to essay-4Clark v. Barnard, 108 U.S. 436 (1883).
5.  Jump to essay-5E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Lewis Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting states).
6.  Jump to essay-6See, e.g., the Court’s express rejection of the Eleventh Amendment defense in these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904).
7.  Jump to essay-7E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
8.  Jump to essay-8The principal citation is Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
9.  Jump to essay-9Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984).
10.  Jump to essay-10As Justice Oliver Holmes explained, the doctrine is based on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Of course, when a state is sued in federal court pursuant to federal law, the Federal Government, not the defendant state, is the authority that makes the law creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154 (1996) (Souter, J., dissenting). For the history and jurisprudence, see Lewis J. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).
11.  Jump to essay-11Alden v. Maine, 527 U.S. 706, 713 (1999).
12.  Jump to essay-12See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild, 161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642–43, 645 (1911).
13.  Jump to essay-13A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940).
14.  Jump to essay-14See Fletcher, supra.
15.  Jump to essay-15For a while only Justice William Brennan advocated this view, Parden v. Terminal Ry., 377 U.S. 184 (1964); Emps. of the Dep’t of Pub. Health and Welfare v. Dep’t of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Stevens, dissenting).
16.  Jump to essay-16E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may seek damages from another state, including damages to its citizens, provided it shows that the state has an independent interest in the proceeding).
17.  Jump to essay-17E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S. 332, 337 (1979).
18.  Jump to essay-18See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ among themselves as to the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). As noted in the previous section, later cases stiffened the rule of construction. The parallelism of congressional power to regulate and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), the Court strictly construed congressional provision of suits as not reaching states, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law.
19.  Jump to essay-19440 U.S. 410, 426 (1979), overruled by Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1492 (2019) [hereinafter Franchise Tax Bd. III.] 40. Id. at 411–12.
20.  Jump to essay-20Id. at 411–12.
21.  Jump to essay-21Id. at 414–18.
22.  Jump to essay-22Id. at 426. In the Court’s view, for a federal court to infer from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy of full compensation, that holding would constitute the real intrusion on the sovereignty of the States—and the power of the people—in our Union. Id. at 426–27.
23.  Jump to essay-23Franchise Tax Bd. III, 139 S. Ct. 1485, 1492 (2019).
24.  Jump to essay-24Id. at 1490–91.
25.  Jump to essay-25Id. at 1491; see also Franchise Tax Bd. of Cal. v. Hyatt, 136 S. Ct. 1277, 1279 (2016) (The Court is equally divided on this question, and we consequently affirm the Nevada courts’ exercise of jurisdiction over California.); Franchise Tax Bd. III, 139 S. Ct. at 1490–91 (explaining that the two prior Franchise Tax Board decisions centered on interpretations of the Full Faith and Credit Clause of Article IV of the Constitution).
26.  Jump to essay-26Franchise Tax Bd. III, 139 S. Ct. at 1493, 1497.
27.  Jump to essay-27Id. at 1496 (quoting Alden v. Maine, 527 U.S. 706, 722 (1999)).
28.  Jump to essay-28Id. (quoting Alden, 527 U.S. at 713). 49. Id. at 1497.
29.  Jump to essay-29Id. at 1497.
30.  Jump to essay-30Id. (citation omitted).
31.  Jump to essay-31Id. at 1499. The Court reasoned that stare decisis did not compel it to follow Hall even though some plaintiffs, such as Hyatt relied on that decision in litigation against states. Id. at1499. In the Court’s view, Hall failed to account for the historical understanding of state sovereign immunity and stood as an outlier in [the Court’s] sovereign immunity jurisprudence. Id.

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Amdt11.5.3 Suits Against States

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.

Despite the apparent limitations of the Eleventh Amendment, individuals may, under certain circumstances, bring constitutional and statutory cases against states. In some of these cases, the state’s sovereign immunity has either been waived by the state (either explicitly or implicitly as a product of their consent to the plan of the Constitutional Convention) or abrogated by Congress. In other cases, the Eleventh Amendment does not apply because the procedural posture is such that the Court does not view them as being against a state. As discussed below, this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where the res, or property in dispute, is in fact the legal target of a dispute.¹

The application of this last exception to the bankruptcy area has become less relevant, because even when a bankruptcy case is not focused on a particular res, the Court has held that a state’s sovereign immunity is not infringed by being subject to an order of a bankruptcy court. In Central Virginia Community College v. Katz, the Court noted that [t]he history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and enacted under its auspices immediately following ratification of the Constitution demonstrate that it was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena.² Thus, where a federal law authorized a bankruptcy trustee to recover preferential transfers made to state educational institutions,³ the court held that the state’s sovereign immunity was not infringed despite the fact that the issue was ancillary to a bankruptcy court’s in rem jurisdiction.⁴

Because Eleventh Amendment sovereign immunity inheres in states and not their subdivision or establishments, a state agency that wishes to claim state sovereign immunity must establish that it is acting as an arm of the state. In Lake County Estates v. Tahoe Regional Planning Agency, the Court stated: [A]gencies exercising state power have been permitted to invoke the [Eleventh] Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.⁵ In evaluating such a claim, courts will examine state law to determine the nature of the entity and whether to treat it as an arm of the state.⁶ The Supreme Court has consistently refused to extend Eleventh Amendment sovereign immunity to counties, cities, or towns,⁷ even though such political subdivisions exercise a slice of state power.⁸ Even when such entities enjoy immunity from suit under state law, they do not have Eleventh Amendment immunity in federal court and states may not confer it.⁹ Similarly, entities created pursuant to interstate compacts (and subject to congressional approval) are not immune from suit, absent a showing that the entity was structured so as to take advantage of the state’s constitutional protections.¹⁰

Footnotes

1.  Jump to essay-1See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446–48 (2004) (exercise of bankruptcy court’s in rem jurisdiction over a debtor’s estate to discharge a debt owed to a state does not infringe the state’s sovereignty); California v. Deep Sea Research, Inc., 523 U.S. 491, 507–08 (1998) (despite state claims over shipwrecked vessel, the Eleventh Amendment does not bar federal court in rem admiralty jurisdiction where the res is not in the possession of the sovereign).
2.  Jump to essay-2Central Virginia Community College v. Katz, 546 U.S. 356, 362–63 (2006). The Court has cautioned, however, that Katz’s analysis is limited to the context of the Bankruptcy Clause. Specifically, the Court has described the Clause as sui generis or unique among Article I’s grants of authority, and, unlike other such grants, the Bankruptcy Clause itself abrogated state sovereign immunity in bankruptcy proceedings. See Allen v. Cooper, 140 S.Ct. 994, 1002–03 (2020) (observing that Katz points to a good-for-one-clause-only holding and does not cast further doubt on Seminole Tribe’s general rule that Article I cannot justify haling a State into federal court).
3.  Jump to essay-3A preferential transfer was defined as the transfer of a property interest from an insolvent debtor to a creditor, which occurred on or within ninety days before the filing of a bankruptcy petition, and which exceeds what the creditor would have been entitled to receive under such bankruptcy filing. 11 U.S.C. § 547(b). 55. 546 U.S. at 373.
4.  Jump to essay-4546 U.S. at 373.
5.  Jump to essay-5Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01 (1979), citing Edelman v. Jordan, 415 U.S. 651 (1974), and Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945). The fact that a state agency can be indemnified for the costs of litigation does not divest the agency of its Eleventh Amendment immunity. Regents of the University of California v. Doe, 519 U.S. 425 (1997).
6.  Jump to essay-6See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (local school district not an arm of the state based on (1) its designation in state law as a political subdivision, (2) the degree of supervision by the state board of education, (3) the level of funding received from the state, and (4) the districts’ empowerment to generate their own revenue through the issuance of bonds or levying taxes.
7.  Jump to essay-7Northern Insurance Company of New York v. Chatham County, 547 U.S. 189, 193 (2006) (counties have neither Eleventh Amendment immunity nor residual common law immunity). See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Moor v. County of Alameda, 411 U.S. 693 (1973); Workman v. City of New York, 179 U.S. 552 (1900); Lincoln County v. Luning, 133 U.S. 529 (1890). In contrast to their treatment under the Eleventh Amendment, the Court has found that state immunity from federal regulation under the Tenth Amendment extends to political subdivisions as well. See Printz v. United States, 521 U.S. 898 (1997).
8.  Jump to essay-8Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01 (1979) (quoting earlier cases).
9.  Jump to essay-9Chicot County v. Sherwood, 148 U.S. 529 (1893).
10.  Jump to essay-10Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959)

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Amdt11.6.1 Waiver of State Sovereign Immunity

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.

The immunity of a state from suit is a privilege which it may waive at its pleasure. Historically, the conclusion that a state has consented or waived its immunity has not been lightly inferred; the Court strictly construes statutes alleged to consent to suit. Thus, a state may waive its immunity in its own courts without consenting to suit in federal court,¹ and a general authorization to sue and be sued is ordinarily insufficient to constitute consent.² A statutory waiver of state Eleventh Amendment immunity is effective only where stated in the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.³

Thus, in Port Authority Trans-Hudson Corp. v. Feeney,⁴ an expansive consent to suits, actions, or proceedings of any form or nature at law, in equity or otherwise was deemed too ambiguous and general to waive immunity in federal court, because it might be interpreted to reflect only a state’s consent to suit in its own courts. But, when combined with language specifying that consent was conditioned on venue being laid within a county or judicial district, established by one of said States or by the United States, and situated wholly or partially within the Port of New York District, waiver was effective.⁵

There are, however, a few cases in which the Court has found a waiver by implication. For example, in Parden v. Terminal Railway,⁶ the Court ruled that employees of a state-owned railroad could sue the state for damages under the Federal Employers’ Liability Act (FELA). One of the two primary grounds for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, enacted some twenty years previously, the state had effectively accepted the imposition of the Act and consented to suit.⁷ Distinguishing Parden as involving a proprietary activity,⁸ the Court later refused to find any implied consent to suit by states participating in federal spending programs; participation was insufficient, and only when waiver has been stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction, will it be found.⁹ Further, even if a state becomes amenable to suit under a statutory condition on accepting federal funds, remedies, especially monetary damages, may be limited, absent express language to the contrary.¹⁰

Another form of waiver by implication is the waiver by consent to the plan of the Constitutional Convention; that is, that states waived sovereign immunity to litigation on certain matters when they ratified the Constitution. A recent decision seems to have expanded the scope of these sort of implicit waivers. In PennEast Pipeline Co. v. New Jersey,¹¹ the Court heard an appeal related to an interstate pipeline approved by the federal government. Under the Natural Gas Act (NGA), parties who receive certificates to construct and operate interstate natural gas pipelines are authorized to exercise eminent domain in order to obtain the necessary rights-of-way to construct and operate the pipeline along the approved route.¹² In this instance, the approved route included lands owned by the State of New Jersey. The certificate holders brought an action in federal district court seeking to condemn those state-owned parcels, and the state responded by asserting its sovereign immunity under the eleventh Amendment. The lower courts sided with the state, rejecting the argument that the federal government had delegated its authority to sue states in the NGA and the certificate proceeding, but the Supreme Court disagreed. Writing for the 5-4 majority, Chief Justice John Roberts noted that [t]he ‘plan of the Convention’ includes certain waivers of sovereign immunity to which all States implicitly consented at the founding.¹³ The Court concluded that it would be untenable to find that this waiver did not extend to private parties authorized by the federal government to exercise eminent domain authority.¹⁴ In addition, because the waiver of sovereign immunity was based on the states’ implicit consent via the plan of the Convention rather than abrogation or explicit waiver, there was no need to find that the NGA clearly authorized such suits.¹⁵ The Court’s decision in PennEast is one of the only Supreme Court decisions relying on the plan of convention as a basis for consent or waiver, so its impact outside of federal legislation delegating eminent domain power remains to be seen.

A state may also waive its immunity by initiating or participating in litigation. In Clark v. Barnard,¹⁶ the state had filed a claim for disputed money deposited in a federal court, and the Court held that the state could not thereafter complain when the court awarded the money to another claimant. However, the Court is loath to find a waiver simply because an official or an attorney representing the state decided to litigate the merits of a suit, so that a state may at any point in litigation raise a claim of immunity based on whether that official has the authority under state law to make a valid waiver.¹⁷ However, this argument is only available when the state is brought into federal court involuntarily. If a state voluntarily agrees to removal of a state action to federal court, the Court has held it may not then invoke a defense of sovereign immunity and thereby gain an unfair tactical advantage.¹⁸

Footnotes

1.  Jump to essay-1Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151, 172 (1909); Graves v. Texas Co., 298 U.S. 393, 403–04 (1936); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).
2.  Jump to essay-2Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573 (1946); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Compare Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519 n.* (1982) (Justice White concurring), with id. at 522 and n.5 (Justice Lewis Powell dissenting).
3.  Jump to essay-3Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990) (internal citations omitted; emphasis in original). 5. 495 U.S. 299 (1990).
4.  Jump to essay-4495 U.S. 299 (1990).
5.  Jump to essay-5495 U.S. at 306–07. But see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).
6.  Jump to essay-6377 U.S. 184 (1964). The alternative but interwoven ground had to do with Congress’s power to withdraw immunity. See also Petty v. Tennessee- Missouri Bridge Comm’n, 359 U.S. 275 (1959).
7.  Jump to essay-7The implied waiver issue aside, Parden subsequently was overruled, a plurality of the Court emphasizing that Congress had failed to abrogate state immunity unmistakably. Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468 (1987). Justice Lewis Powell’s plurality opinion was joined by Chief Justice William Rehnquist and by Justices Byron White and Sandra Day O’Connor. Justice Antonin Scalia, concurring, thought Parden should be overruled because it must be assumed that Congress enacted the FELA and other statutes with the understanding that Hans v. Louisiana shielded states from immunity. Id. at 495.
8.  Jump to essay-8Edelman v. Jordan, 415 U.S. 651, 671–72 (1974). For the same distinction in the Tenth Amendment context, see National League of Cities v. Usery, 426 U.S. 833, 854 n.18 (1976).
9.  Jump to essay-9Edelman v. Jordan, 415 U.S. 651 (1974) (quoting id. at 673, Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Of the four Edelman dissenters, Justices Thurgood Marshall and Harry Blackmun found waiver through knowing participation, 415 U.S. at 688. In Florida Dep’t, Justice John Stevens noted he would have agreed with them had he been on the Court at the time but that he would now adhere to Edelman. Id. at 151.
10.  Jump to essay-10Sossamon v. Texas, 131 S. Ct. 1651 (2011).
11.  Jump to essay-11No. 19-1039 (U.S. June 29, 2021).
12.  Jump to essay-1215 U.S.C. § 717f(h).
13.  Jump to essay-13Alden, 527 U.S. at 755–56.
14.  Jump to essay-14Id.
15.  Jump to essay-15Id.
16.  Jump to essay-16108 U.S. 436 (1883).
17.  Jump to essay-17Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–467 (1945); Edelman v. Jordan, 415 U.S. 651, 677–678 (1974).
18.  Jump to essay-18Lapides v. Board of Regents, 535 U.S. 613 (2002

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Amdt11.6.2 Abrogation of State Sovereign Immunity

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.

The Constitution grants Congress power to regulate state action by legislation. In some instances when Congress does so, it may subject states to suit by individuals to implement the legislation. The clearest example arises from the Civil War Amendments, which directly restrict state powers and expressly authorize Congress to enforce these restrictions through appropriate legislation.¹ Thus, in Fitzpatrick v. Bitzer, the Court stated: the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of § 5 of the Fourteenth Amendment.² The power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’s judgment will promote compliance.³ The principal judicial brake on this power to abrogate state immunity in legislation enforcing the Civil War Amendments is the rule requiring that congressional intent to subject states to suit be clearly stated.⁴

In the 1989 case of Pennsylvania v. Union Gas Co.,⁵ the Court—temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers (as opposed to its Fourteenth Amendment powers) may abrogate the Eleventh Amendment immunity of the states, so long as it does so with sufficient clarity. Twenty-five years earlier the Court had stated that same principle,⁶ but only as an alternative holding, and a later case had set forth a more restrictive rule.⁷ The premises of Union Gas were that by consenting to ratification of the Constitution, with its Commerce Clause and other clauses empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the Eleventh Amendment was a restraint upon the courts and not similarly upon Congress, and that the exercises of Congress’s powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the states to enforce congressional enactments. The dissenters disputed each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, took the position that no such power existed under Article I.

Pennsylvania v. Union Gas lasted less than seven years before the Court overruled it in Seminole Tribe of Florida v. Florida.⁸ Chief Justice William Rehnquist, writing for a 5-4 majority, concluded that Union Gas had deviated from a line of cases, tracing back to Hans v. Louisiana,⁹ which viewed the Eleventh Amendment as implementing the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.¹⁰ Because the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.¹¹ Subsequent cases have upheld this interpretation.¹²

Section 5 of the Fourteenth Amendment, of course, is another matter. Fitzpatrick v. Bitzer,¹³ which held, in part, that the Fourteenth Amendment operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment, remains good law.¹⁴ This ruling led to a number of cases that examined whether a statute that might be applied against non-state actors under an Article I power could also, under section 5 of the Fourteenth Amendment, be applied against the states.¹⁵

In another line of cases, a different majority of the Court focused on language Congress used to overcome immunity rather than the authority underlying the action. Henceforth, the Court held in a 1985 decision, and even with respect to statutes that were enacted prior to promulgation of this judicial rule of construction, Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute itself.¹⁶

At one time, a plurality of the Court appeared to take the position that Congress had to refer specifically to state sovereign immunity and the Eleventh Amendment for its language to be unmistakably clear.¹⁷ Thus in 1985 the Court held in Atascadero State Hospital v. Scanlon that general language subjecting to suit in federal court by any recipient of Federal assistance under the Rehabilitation Act was insufficient to satisfy this test, not because of any question about whether states are recipients within the meaning of the provision but because given their constitutional role, the states are not like any other class of recipients of federal aid.¹⁸ As a result of these rulings, Congress began to use words the Court had identified.¹⁹ Since then, however, the Court has accepted less precise language,²⁰ and in at least one context, has eliminated the requirement of specific abrogation language altogether.²¹

Even before the Alden v. Maine decision,²² when the Court believed that Eleventh Amendment sovereign immunity did not apply to suits in state courts, the Court applied its rule of strict construction to require unmistakable clarity by Congress in order to subject states to suit.²³ Although the Court was willing to recognize exceptions to the clear statement rule when the issue involved subjection of states to suit in state courts, the Court also suggested the need for symmetry so that states’ liability or immunity would be the same in both state and federal courts.²⁴

Footnotes

1.  Jump to essay-1Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney, 437 U.S. 678 (1978); City of Rome v. United States, 446 U.S. 156 (1980). More recent cases affirming Congress’s Section 5 powers include Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); and Dellmuth v. Muth, 491 U.S. 223, 227 (1989).
2.  Jump to essay-2Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (under the Fourteenth Amendment, Congress may provide for private suits against States or state officials which are constitutionally impermissible in other contexts.).
3.  Jump to essay-3In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that Congress could validly authorize imposition of attorneys’ fees on the state following settlement of a suit based on both constitutional and statutory grounds, even though settlement had prevented determination that there had been a constitutional violation. Maine v. Thiboutot, 448 U.S. 1 (1980), held that § 1983 suits could be premised on federal statutory as well as constitutional grounds. Other cases in which attorneys’ fees were awarded against states are Hutto v. Finney, 437 U.S. 678 (1978); and New York Gaslight Club v. Carey, 447 U.S. 54 (1980). See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding enforcement of consent decree).
4.  Jump to essay-4Even prior to the tightening of the clear statement rule over the past several decades to require express legislative language (see note and accompanying text, infra), application of the rule curbed congressional enforcement. Fitzpatrick v. Bitzer, 427 U.S. 445 451–53 (1976); Hutto v. Finney, 437 U.S. 678, 693–98 (1978). Because of its rule of clear statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held that in enacting 42 U.S.C. § 1983, Congress had not intended to include states within the term person for the purpose of subjecting them to suit. The question arose after Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978), reinterpreted person to include municipal corporations. Cf. Alabama v. Pugh, 438 U.S. 781 (1978). The Court has reserved the question of whether the Fourteenth Amendment itself, without congressional action, modifies the Eleventh Amendment to permit suits against states, Milliken v. Bradley, 433 U.S. 267, 290 n.23 (1977), but the result in Milliken, holding that the Governor could be enjoined to pay half the cost of providing compensatory education for certain schools, which would come from the state treasury, and in Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition of damages upon the governor, which would come from the state treasury, is suggestive. But see Rabinovitch v. Nyquist, 433 U.S. 901 (1977). The Court declined in Ex parte Young, 209 U.S. 123, 150 (1908), to view the Eleventh Amendment as modified by the Fourteenth.
5.  Jump to essay-5491 U.S. 1 (1989). The Justice William Brennan wrote the Court’s plurality opinion and was joined by the three other Justices who believed Hans was incorrectly decided. See id. at 23 (Justice Stevens concurring). Justice Byron White provided the fifth vote id. at 45, 55–56 (Justice Byron White concurring), although he believed Hans was correctly decided and ought to be maintained although he did not believe Congress had acted with sufficient clarity in the statutes before the Court to abrogate immunity. Justice Antonin Scalia thought the statutes were express enough but that Congress simply lacked the power. Id. at 29. Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Anthony Kennedy joined relevant portions of both opinions finding lack of power and lack of clarity.
6.  Jump to essay-6Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 283, 284, 285–86 (1973).
7.  Jump to essay-7Edelman v. Jordan, 415 U.S. 651, 672 (1974).
8.  Jump to essay-8517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory Act authorizing an Indian tribe to sue a state in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact).
9.  Jump to essay-9134 U.S. 1 (1890).
10.  Jump to essay-10517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–98 (1984).
11.  Jump to essay-11517 U.S. at 72–73. Justice David Souter’s dissent undertook a lengthy refutation of the majority’s analysis, asserting that the Eleventh Amendment is best understood, in keeping with its express language, as barring only suits based on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state sovereign immunity that the Court mistakenly recognized in Hans v. Louisiana was a common law concept that had no constitutional status and was subject to congressional abrogation. 517 U.S. at 117. The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject to legislative alteration. This imperative of legislative control grew directly out of the Framers’ revolutionary idea of popular sovereignty. Id. at 160.
12.  Jump to essay-12Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (the Trademark Remedy Clarification Act, an amendment to the Lanham Act, did not validly abrogate state immunity); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (amendment to patent laws abrogating state immunity from infringement suits is invalid); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (abrogation of state immunity in the Age Discrimination in Employment Act is invalid); Allen v. Cooper, 140 S. Ct. 994 (2020) (the Copyright Remedy Clarification Act of 1990 did not validly abrogate state sovereign immunity).
13.  Jump to essay-13427 U.S. 445 (1976).
14.  Jump to essay-14Seminole Tribe, 517 U.S. at 65–66.
15.  Jump to essay-15See Fourteenth Amendment, Congressional Definition of Fourteenth Amendment Rights, infra.
16.  Jump to essay-16Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis added).
17.  Jump to essay-17Justice Anthony Kennedy for the Court in Dellmuth, 491 U.S. at 231, expressly noted that the statute before the Court did not demonstrate abrogation with unmistakable clarity because, inter alia, it makes no reference whatsoever to either the Eleventh Amendment or the States’ sovereign immunity. Justice Antonin Scalia, one of four concurring Justices, expressed an understanding that the Court’s reasoning would allow for clearly expressed abrogation of immunity without explicit reference to state sovereign immunity or the Eleventh Amendment. Id. at 233.
18.  Jump to essay-18Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). See also Dellmuth v. Muth, 491 U.S. 223 (1989).
19.  Jump to essay-19In 1986, following Atascadero, Congress provided that states were not to be immune under the Eleventh Amendment from suits under several laws barring discrimination by recipients of federal financial assistance. Pub. L. No. 99-506, § 1003, 100 Stat. 1845 (1986), 42 U.S.C. § 2000d-7. Following Dellmuth, Congress amended the statute to insert the explicit language. Pub. L. No. 101-476, § 103, 104 Stat. 1106 (1990), 20 U.S.C. § 1403. See also the Copyright Remedy Clarification Act, Pub. L. 101-553, § 2, 104 Stat. 2749 (1990), 17 U.S.C. § 511 (making states and state officials liable in damages for copyright violations).
20.  Jump to essay-20Kimel v. Florida Board of Regents, 528 U.S. 62, 74–78 (2000). In Kimel, statutory language authorized age discrimination suits against any employer (including a public agency), and a public agency was defined to include the government of a State or political subdivision thereof. The Court found this language to be sufficiently clear evidence of intent to abrogate state sovereign immunity. The relevant portion of the opinion was written by Justice Sandra Day O’Connor, and joined by Chief Justice William Rehnquist and Justices John Stevens, Antonin Scalia, David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Stevens. But see Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002) (federal supplemental jurisdiction statute which tolls limitations period for state claims during pendency of federal case not applicable to claim dismissed on the basis of Eleventh Amendment immunity).
21.  Jump to essay-21Central Virginia Community College v. Katz, 546 U.S. 356, 363 (2006) (abrogation of state sovereign immunity under the Bankruptcy Clause was effectuated by the Constitution, so it need not additionally be done by statute); id. at 383 (Justice Clarence Thomas dissenting).
22.  Jump to essay-22527 U.S. 706 (1999).
23.  Jump to essay-23Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (holding that states and state officials sued in their official capacity could not be made defendants in § 1983 actions in state courts).
24.  Jump to essay-24Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 206 (1991) (interest in symmetry is outweighed by stare decisis, the FELA action being controlled by Parden v. Terminal Ry

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Amdt11.6.3 Officer Suits and State Sovereign Immunity

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.

Courts may provide relief from government wrongs under the doctrine that sovereign immunity does not prevent suits to restrain individual government officials.¹ The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the state.² The doctrine is often associated with the decision in Ex parte Young.³

Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiffs brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt.

In deciding Young, the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice John Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party.⁴ He modified his position to preclude suit when an official, the governor of a state, was sued in his official capacity,⁵ but relying on Osborn and reading Madrazo narrowly, the Court later held in a series of cases that an official of a state could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the state or in response to a state statutory obligation did not make the suit one against the state.⁶ Subsequently the Court developed another more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, which evidenced an increasing wariness toward affirmatively ordering states to relinquish state-controlled property⁷ and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.⁸

Two of the leading cases concerned suits to prevent Southern states from defaulting on bonds.⁹ In Louisiana v. Jumel,¹⁰ a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the state.¹¹ Then, In re Ayers¹² purported to supply a rationale for cases on the issuance of mandamus or injunctive relief against state officers that would have severely curtailed federal judicial power. Suit against a state officer was not barred when his action, aside from any official authority claimed as its justification, was a wrong simply as an individual act, such as a trespass, but if the act of the officer did not constitute an individual wrong and was something that only a state, through its officers, could do, the suit was in actuality a suit against the state and was barred.¹³ That is, the unconstitutional nature of the state statute under which the officer acted did not itself constitute a private cause of action. For that, one must be able to point to an independent violation of a common law right.¹⁴

Although Ayers was in all relevant points on all fours with Young,¹⁵ the Young Court held that the court had properly issued the injunction against the state attorney general, even though the state was in effect restrained as well. The Court stated that [t]he act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of the complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity.¹⁶ Rather, the Court noted, [i]t is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subject in his person to the consequences of his individual conduct.¹⁷ Justice John Harlan was the only dissenter, arguing that in law and fact the suit was one only against the state and that the suit against the individual was a mere fiction.¹⁸

Justice John Harlan’s fiction remains a mainstay of Eleventh Amendment jurisprudence.¹⁹ It accounts for much of the litigation brought by individuals to challenge the execution of state policies. Suits against state officers alleging that they are acting pursuant to an unconstitutional statute are the standard device by which the validity of state legislation in federal courts is tested prior to enforcement and thus interpretation by state courts.²⁰ Similarly, suits to restrain state officials from contravening federal statutes²¹ or to compel undertaking affirmative obligations imposed by the Constitution or federal laws²² are common.

For years, the accepted rule was that the Eleventh Amendment did not preclude suits prosecuted against state officers in federal courts upon grounds that they are acting in excess of state statutory authority²³ or that they are not doing something required by state law.²⁴ However, in Pennhurst State School & Hospital v. Halderman,²⁵ the Court held that Young did not permit suits in federal courts against state officers alleging violations of state law. In the Court’s view, Young was necessary to promote the supremacy of federal law, a basis that disappears if the violation alleged is of state law. The Court also still adheres to the doctrine, first pronounced in Governor of Georgia v. Madrazo,²⁶ that some suits against officers are actually suits against the state²⁷ and are barred by the state’s immunity, such as when the suit involves state property or asks for relief which clearly calls for the exercise of official authority.²⁸

For example, a suit to prevent tax officials from collecting death taxes arising from the competing claims of two states as being the last domicile of the decedent foundered upon the conclusion that there could be no credible claim of a constitutional or federal law violation; state law imposed the obligation upon the officials and in reality the action was against the state.²⁹ Suits against state officials to recover taxes have also been made increasingly difficult to maintain. Although the Court long ago held that the state sovereign immunity prevented a suit to recover money in the state treasury,³⁰ the Court also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.³¹ Beginning, however, with Great Northern Life Insurance Co. v. Read,³² the Court has held that this kind of suit cannot be maintained unless the state expressly consents to suits in federal courts. In this case, the state statute provided for payment of taxes under protest and for suits afterward against state tax collection officials for recovery of taxes illegally collected, which revenues were required to be kept segregated.³³

In Edelman v. Jordan,³⁴ the Court appeared to begin to adopt new restrictive interpretations of what the Eleventh Amendment proscribed. The Court announced in dictum that a suit seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.³⁵ The Court held, however, that it was permissible for federal courts to require state officials to comply in the future with claims payment provisions of the welfare assistance sections of the Social Security Act, but that they were not permitted to hear claims seeking, or issue orders directing, payment of funds found to be wrongfully withheld.³⁶ Conceding that some of the characteristics of prospective and retroactive relief would be the same in their effects upon the state treasury, the Court nonetheless believed that retroactive payments were equivalent to imposing liabilities which must be paid from public funds in the treasury, and that this was barred by the Eleventh Amendment. The spending of money from the state treasury by state officials shaping their conduct in accordance with a prospective-only injunction is an ancillary effect which is a permissible and often an inevitable consequence of Ex parte Young, whereas payment of state funds . . . as a form of compensation to those wrongfully denied the funds in the past is in practical effect indistinguishable in many aspects from an award of damages against the State.³⁷

That Edelman, in many instances, may be a formal rather than an actual restriction is illustrated by Milliken v. Bradley,³⁸ in which state officers were ordered to spend money from the state treasury to finance remedial educational programs to counteract effects of past school segregation; the decree, the Court said, fits squarely within the prospective-compliance exception reaffirmed by Edelman.³⁹ Although the payments were a result of past wrongs, the Court did not view them as compensation, inasmuch as they were not to be paid to victims of past discrimination but rather used to better conditions either for them or their successors.⁴⁰ The Court also applied Edelman in Papasan v. Allain,⁴¹ holding that a claim against a state for payments representing a continuing obligation to meet trust responsibilities stemming from a nineteenth century grant of public lands for the benefit of educating the Chickasaw Indian Nation is barred by the Eleventh Amendment as indistinguishable from an action for past loss of trust corpus, but that an Equal Protection claim for present unequal distribution of school land funds is the type of ongoing violation for which the Eleventh Amendment does not bar redress.

In Idaho v. Coeur d’Alene Tribe of Idaho,⁴² the Court further narrowed Ex parte Young. The implications of the case are difficult to predict, because of the narrowness of the Court’s holding, the closeness of the vote (5-4), and the inability of the majority to agree on a rationale. The Court held that the Tribe’s suit against state officials for a declaratory judgment and injunction to establish the Tribe’s ownership and control of the submerged lands of Lake Coeur d’Alene is barred by the Eleventh Amendment. The Tribe’s claim was based on federal law—Executive Orders issued in the 1870s, prior to Idaho statehood. The portion of Justice Anthony Kennedy’s opinion that represented the Court’s opinion concluded that the Tribe’s unusual suit was the functional equivalent of a quiet title action which implicates special sovereignty interests.⁴³ The case was unusual because state ownership of submerged lands traces to the Constitution through the equal footing doctrine, and because navigable waters uniquely implicate sovereign interests.⁴⁴ This was therefore no ordinary property dispute in which the state would retain regulatory control over land regardless of title. Rather, grant of the far-reaching and invasive relief sought by the Tribe would diminish, even extinguish, the State’s control over a vast reach of lands and waters long . . . deemed to be an integral part of its territory.⁴⁵

The Supreme Court faced a novel question related to state sovereign immunity in the 2021 case Whole Woman’s Health v. Jackson.⁴⁶ That case involved a challenge to a Texas state law known as the Texas Heartbeat Act or S.B. 8, which allowed private citizens to sue healthcare providers and others who perform or abet abortions after a fetal heartbeat is detected. Because S.B. 8 banned some pre-viability abortions, it appeared to conflict with the Supreme Court’s abortion jurisprudence at the time it was enacted. However, because the statute was enforced through private civil suits, rather than by state actors, it was not clear whether people challenging the law could bring suit under Ex parte Young to prevent its enforcement. Some opponents of S.B. 8 brought suit under Young against the Texas attorney general, clerks and judges of Texas state courts that could hear S.B. 8 claims, and certain state medical licensing officials. The Supreme Court held that the suit could not proceed against state court judges or clerks because judicial officers are not subject to suit under Young,⁴⁷ and that the plaintiffs could not sue the Texas attorney general because he lacked the power to enforce S.B. 8.⁴⁸ The Court allowed the suit to proceed against the state medical licensing officials, however, concluding that those officials had some authority to enforce S.B. 8.⁴⁹ Whole Woman’s Health did not fully resolve questions about the extent to which states can enact legislation that limits the exercise of constitutional rights but evades federal judicial review under Young.⁵⁰

Thus, as with the cases dealing with suits facially against the states themselves, the Court’s greater attention to state immunity in the context of suits against state officials has resulted in a mixed picture, of some new restrictions, of the lessening of others. But a number of Justices have increasingly turned to the Eleventh Amendment as a means to reduce federal-state judicial conflict.⁵¹

Footnotes

1.  Jump to essay-1See, e.g. Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949). It should be noted, however, that as a threshold issue in lawsuits against state employees or entities, courts must look to whether the sovereign is the real party in interest to determine whether state sovereign immunity bars the suit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Court must determine whether the remedy sought is truly against the sovereign, and if an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amendment’s protections. See Lewis v. Clarke, 137 S. Ct. 1285, 1290–91 (2017). As a result, arms of the state, such as a state university, enjoy sovereign immunity. Id. at 6. Likewise, lawsuits brought against employees in their official capacity may also be barred by sovereign immunity. Id.
2.  Jump to essay-2C. Wright, The Law of Federal Courts § 48 (4th ed. 1983). 3. 209 U.S. 123 (1908).
3.  Jump to essay-3209 U.S. 23 (1908).
4.  Jump to essay-4Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
5.  Jump to essay-5Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
6.  Jump to essay-6Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1876); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900).
7.  Jump to essay-7Judicial reluctance to confront government officials over government-held property did not extend in like manner in a federal context, as was evident in United States v. Lee, the first case in which the sovereign immunity of the United States was claimed and rejected. United States v. Lee, 106 U.S. 196 (1882). See Article III, Suits Against United States Officials. However, the Court sustained the suit against the federal officers by only a 5-4 vote, and the dissent presented the arguments that were soon to inform Eleventh Amendment cases.
8.  Jump to essay-8134 U.S. 1 (1890).
9.  Jump to essay-9See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.
10.  Jump to essay-10107 U.S. 711 (1882).
11.  Jump to essay-11The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done. 107 U.S. at 721. See also Christian v. Atlantic & N.C. R.R., 133 U.S. 233 (1890).
12.  Jump to essay-12123 U.S. 443 (1887).
13.  Jump to essay-13123 U.S. at 500–01, 502.
14.  Jump to essay-14Ayers sought to enjoin state officials from bringing suit under an allegedly unconstitutional statute purporting to overturn a contract between the state and the bondholders to receive the bond coupons for tax payments. The Court asserted that the state’s contracts impliedly contained the state’s immunity from suit, so that express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, because any violation of the assumed contract was an act of the state, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505–06. The rationale had been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769, 783 (1883). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900).
15.  Jump to essay-15Ayers would seem to be decisive of the Young litigation. C. Write, The Law of Federal Courts § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167 (1908). Similarly, in a later case, the Court continued to distinguish Ayers but on grounds that did not in fact distinguish it from the case before the Court, in which it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952).
16.  Jump to essay-16 Ex parteYoung, 209 U.S. 123, 159–60 (1908). The opinion did not address the issue of how an officer stripped of his official . . . character could violate the Constitution, in that the Constitution restricts only state action, but the double fiction has been expounded numerous times since. Thus, for example, it is well settled that an action unauthorized by state law is state action for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913). The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), though eviscerated by Home Tel. & Tel. was not expressly disavowed until United States v. Raines, 362 U.S. 17, 25–26 (1960).
17.  Jump to essay-17 Ex parte Young, 209 U.S. 123, 159–60 (1908).
18.  Jump to essay-18Ex parte Young, 209 U.S. 123, 173–74 (1908) (Harlan, J., dissenting). In the process of limiting application of Young, a Court majority referred to the Young fiction. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).
19.  Jump to essay-19E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670, 685 (1982).
20.  Jump to essay-20See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining state welfare officials from denying welfare benefits to otherwise qualified recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits); Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon state through order directed to governor and other officials). On injunctions against governors, see Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits under this doctrine are principles of judicial restraint—constitutional, statutory, and prudential—discussed under Article III.
21.  Jump to essay-21E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).
22.  Jump to essay-22E.g., Women’s Whole Health v. Jackson, No. 21-463 (2021) (citing Ex Parte Young in refusing to enjoin state court clerks and judges from enforcement of a state law); Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332, 346–49 (1979).
23.  Jump to essay-23E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Louisville & Nashville R.R. v. Greene, 244 U.S. 522 (1917). Property held by state officials on behalf of the state under claimed state authority may be recovered in suits against the officials, although the court may not conclusively resolve the state’s claims against it in such a suit. South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices who agreed that the Eleventh Amendment applied divided 4-4 over the proper interpretation.
24.  Jump to essay-24E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933); Lee v. Bickell, 292 U.S. 415, 425 (1934).
25.  Jump to essay-25465 U.S. 89 (1984).
26.  Jump to essay-26Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
27.  Jump to essay-27E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945).
28.  Jump to essay-28In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst, arguing that unless an actual violation of federal law had been found by a court, then such court would be without jurisdiction to enforce such decree. The Court, in a unanimous opinion, declined to so extend the Eleventh Amendment, noting, among other things, that the principles of federalism were served by giving state officials the latitude and discretion to enter into enforceable consent decrees. Id. at 442.
29.  Jump to essay-29Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937). See also Old Colony Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester County remains viable. Cory v. White, 457 U.S. 85 (1982). The actions were under the Federal Interpleader Act, 49 Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions against officials have been allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939) (joinder of state court judge and receiver in interpleader proceeding in which state had no interest and neither judge nor receiver was enjoined by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933).
30.  Jump to essay-30Smith v. Reeves, 178 U.S. 436 (1900).
31.  Jump to essay-31Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912).
32.  Jump to essay-32322 U.S. 47 (1944).
33.  Jump to essay-33See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. Tax Comm’n, 327 U.S. 573 (1946). States may confine to their own courts suits to recover taxes. Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).
34.  Jump to essay-34415 U.S. 651 (1974).
35.  Jump to essay-35415 U.S. at 663.
36.  Jump to essay-36415 U.S. at 667–68. Where the money at issue is not a state’s, but a private party’s, then the distinction between retroactive and prospective obligations is not important. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635 (2002), the Court held that a challenge to a state agency decision regarding a private party’s past and future contractual liabilities does not violate the Eleventh Amendment. Id. at 648. In fact, three justices questioned whether the Eleventh Amendment is even implicated where there is a challenge to a state’s determination of liability between private parties. Id. at 649 (Justice David Souter, concurring).
37.  Jump to essay-37415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming Edelman, but holding that state officials could be ordered to notify members of the class that had been denied retroactive relief in that case that they might seek back benefits by invoking state administrative procedures; the order did not direct the payment but left it to state discretion to award retroactive relief). But cf. Green v. Mansour, 474 U.S. 64 (1985). Notice relief permitted under Quern v. Jordan is consistent with the Eleventh Amendment only insofar as it is ancillary to valid prospective relief designed to prevent ongoing violations of federal law. Thus, where Congress has changed the AFDC law and the state is complying with the new law, an order to state officials to notify claimants that past payments may have been inadequate conflicts with the Eleventh Amendment.
38.  Jump to essay-38433 U.S. 267 (1977).
39.  Jump to essay-39433 U.S. at 289.
40.  Jump to essay-40433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690–91 (1978) (affirming order to pay attorney’s fees out of state treasury as an ancillary order because of state’s bad faith).
41.  Jump to essay-41478 U.S. 265 (1986).
42.  Jump to essay-42521 U.S. 261 (1997).
43.  Jump to essay-43521 U.S. at 281.
44.  Jump to essay-44521 U.S. at 284.
45.  Jump to essay-45521 U.S. at 282.
46.  Jump to essay-46142 S. Ct. 522 (2021).
47.  Jump to essay-47142 S. Ct. 522 (2021).
48.  Jump to essay-48Id. at 531–34.
49.  Jump to essay-49Id. at 534–35. In addition to their claims against state officials under Young, the S.B. 8 challengers sued a private individual who had threatened to sue under S.B. 8; the Court held that claim could not proceed because the private defendant later disclaimed any intent to sue under S.B. 8. Id. at 537.
50.  Jump to essay-50Id. at 535–37; id. at 544 (Roberts, C.J, dissenting); id. at 545 (Sotomayor, J., dissenting).Following remand and certification of a state law question to the Texas Supreme Court, the state court ruled that Texas law did not authorize state medical licensing officials to enforce S.B. 8, Whole Woman’s Health v. Jackson, 642 S.W. 3d 569 (Tex. 2022), and the U.S. Court of Appeals for the Fifth Circuit dismissed the claims against those officials, Whole Woman’s Health v. Jackson, 31 F.4th 1004 (Mem) (5th Cir. 2022). The U.S. Supreme Court later overruled key abortion precedents that applied when it decided Whole Woman’s Health, removing the main substantive basis for constitutional challenges to S.B. 8. Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808 (June 24, 2022). The procedural issues presented in Whole Woman’s Health remain unresolved, as legislation based on S.B. 8 may u See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.
51.  Jump to essay-51142 S. Ct. 522 (2021).

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Amdt11.6.4 Tort Actions Against State Officials

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.

In Tindal v. Wesley,¹ the Court adopted the rule of United States v. Lee,² a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the state and to obtain damages for the period of withholding. State immunity afforded by the Eleventh Amendment has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.³ The reach of the rule is evident in Scheuer v. Rhodes,⁴ in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a state alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no executive immunity from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.⁵

Footnotes

1.  Jump to essay-1167 U.S. 204 (1897).
2.  Jump to essay-2106 U.S. 196 (1882).
3.  Jump to essay-3Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).
4.  Jump to essay-4416 U.S. 232 (1974).
5.  Jump to essay-5These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. § 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see Article III, Suits Against United States Officials, supra.

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