1. 11 th 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"

3. 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 can’t 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

4. 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 Const’n (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

5. 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.”

6. 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…”

7. Effect of 11 th 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 11 th 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

9. Effect of 11 th Amend Nullifies diversity clause of Art. III, § 2 Overrules Chisholm 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. Precursor to Erie

10. Effect of 11 th 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

11. Effect of 11 th 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

12. Effect of 11 th 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)

13. Effect of 11 th 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 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 This rule of constitutional law does not derive from the 11 th amend; rather it is read into the constitution as a background principle

14. Exceptions to Sov. Immunity Inapplicable to municipal governments Only the state and state agencies enjoy SI Inapplicable in SCOTUS in suits by federal gov’t or other states Stripping Doctrine Explicit State Waiver Congressional Abrogation

15. Stripping Doctrine Ex Parte Young (1908) States DON’T 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 state’s SI when sued on a federal claim applies to both constitutional and statutory claims

16. Limitations on Stripping Doctrine Official Capacity Lawsuits Must be acting on behalf of state to violate 14th Yet, when violating 14th, officer isn’t 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

17. 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."

18. 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

19. 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) 14 th Amendment, § 5 14th amendment postdates 11th Intended to constrain states

22. Abrogation under Section 8 Pennsylvania v. Union Gas (1989) 11 th 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

24. 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?

25. Seminole Tribe v. Florida (1996) Majority: Section 8 powers were limited by 11 th 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

27. 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.”

28. 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

29. 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?

30. 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 Amendment’s 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

31. 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

32. 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 15 th amd §2) “Congress documented a marked pattern of unconstitutional action by the States” congruence

33. 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 ADA’s “accommodation duty far exceeds what is constitutionally required” proportionality

34. 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

35. Alden v. Maine (1999) Suit against Maine under FLSA Fed.Ct. lacks jdx per 11 th Amd. 11 th 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 11 th amd. per se Not based on any constitutional text Based on const’l “understandings”

36. 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 sover’ty viz individuals (supremacy) delegation did not include relinquishment of immunity Nice theory; but is it law?

37. Recap 11 th 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 11 th Amendment limits statutory rights States may not be sued in any court for damages w/o valid congressional abrogation Can only abrogate under 14 th amd §5 (and 15 th §2) Requires congruence and proportionality This is not really the result of 11 th amend, but the corresponding doctrine of state sovereignty