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11th Amendment

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sues GA in Supreme Court. Jurisdiction. Const. Art. III, 2: 'The judicial power shall extend to ... in Hans v. Louisiana (1890) Current interpretation (w ... – PowerPoint PPT presentation

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Title: 11th Amendment


1
11th Amendment
  • Civil Rights Litigation
  • Fall, 2006
  • Karl Manheim

The opinions expressed here are solely those of
the author and not attributable to Profs. Newman
or Williams
2
Chisholm v. Georgia (1793)
  • Background
  • Georgia reneges on a revolutionary war debt
  • Chisholm (S.Car.) sues GA in Supreme Court
  • Jurisdiction
  • Const. Art. III, 2 The judicial power shall
    extend to all controversies between a State and
    citizens of another State
  • Judicial Act (1789) 14 "The Supreme Court shall
    have original concurrent jurisdiction of all
    controversies between a State and citizens of
    other States and aliens"

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 cant be brought into court without
    consent
  • As a rule of substantive law (absolute defense)
  • The Sovereign (king, State) is not bound by the
    law
  • Hard to maintain after Magna Carta
  • Hard to maintain in post-1776 America
  • Non sub homine, sed sub Deo et lege

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
  • Constn (as substantive law) preempts state law
    (SI)
  • Holding (4-1) Art. III conferral of jdx implies
    power to issue a judgment against States
  • Operates as a rule of substantive law

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 11th Amend
  • Nullifies diversity clause of Art. III, 2
  • Overrules Chisholm
  • Creates state sovereignty in all suits by
    non-citizens against a state in fed court
  • Confers state sovereignty in all cases

8
Effect of 11th Amend
  • Nullifies diversity clause of Art. III, 2
  • To sue a state in federal court, plaintiff must
    find another Article III basis
  • E.g., federal question jurisdiction

9
Effect of 11th Amend
  • Nullifies diversity clause of Art. III, 2
  • Overrules Chisholm

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

10
Effect of 11th Amend
  • Nullifies diversity clause of Art. III, 2
  • Overrules Chisholm
  • Creates state sovereignty in all suits by
    non-citizens against a state in fed court
  • States enjoy sovereign immunity whenever in
    federal court
  • On state AND federal claims
  • Whether or not state law confers immunity on the
    state

11
Effect of 11th Amend
  • Nullifies diversity clause of Art. III, 2
  • Overrules Chisholm
  • Creates state sovereignty in all suits by
    non-citizens against a state in fed court
  • Confers state sovereignty in all cases
  • States are immune on all claims in all courts
  • Including federal claims
  • Including state court

12
Effect of 11th Amend
  • Nullifies diversity clause of Art. III, 2
  • Overrules Chisholm
  • Creates state sovereignty in all suits by
    non-citizens against a state in fed court
  • Reaffirms state sovereignty in all cases

Initial interpretation by S.Ct
Adopted in Hans v. Louisiana (1890)
Current interpretation (w/ exceptions)
13
Effect of 11th Amend
This rule of constitutional law does not derive
from the 11th amend rather it is read into the
constitution as a background principle
  • Nullifies diversity clause of Art. III, 2
  • Overrules Chisholm
  • Creates state sovereignty in all suits by
    non-citizens against a state in fed court
  • Confers state sovereignty in all cases
  • States are immune on all claims in all courts
  • Including federal claims
  • Including state court
  • Note this is a rule of substantive law

As a rule of substantive constitutional law, it
applies wherever the suit is filed, including
state court
14
Exceptions to Sov. Immunity
  • Inapplicable to municipal governments
  • Only the state and state agencies enjoy SI
  • Inapplicable
  • in SCOTUS
  • in suits by federal govt or other states
  • Stripping Doctrine
  • Explicit State Waiver
  • Congressional Abrogation

15
Stripping Doctrine
  • Ex Parte Young (1908)
  • States DONT authorize their agents to violate
    federal law
  • A state officer violating federal law cannot be
    acting on behalf of the state
  • State officer cannot assert the states SI when
    sued on a federal claim
  • applies to both constitutional and statutory
    claims

16
Limitations on Stripping Doctrine
  • Official Capacity Lawsuits
  • Must be acting on behalf of state to violate 14th
  • Yet, when violating 14th, officer isnt acting
    for state
  • State officer must have enforcement authority
    over challenged action
  • Only equitable relief available
  • Individual Capacity Lawsuits
  • Damages available, but only per explicit statute
  • Payable only from individual defendant, not State
  • 1983 and 1988 are explicit

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)
  • 14th Amendment, 5
  • 14th amendment postdates 11th
  • Intended to constrain states

22
Abrogation under Section 8
  • Pennsylvania v. Union Gas (1989)
  • 11th Amd did not create sovereign immunity it
    restored that which existed before Chisholm
  • Whatever sovereign immunity states enjoyed prior
    to ratification, they ceded it coextensive with
    grants of substantive power to congress.
  • Background principle" of State SI was
    necessarily limited by 8 grants of power to
    congress
  • Any enactment within congress' 8 powers is
    capable of overriding state sovereign immunity

23
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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 11th Amd
  • Congress cannot abrogate when acting per 8
  • Penn. v. Union Gas overruled
  • Stevens dissent
  • Congress cannot provide enforce-ment against
    states of most federal rights

26
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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 Amendments text
  • Test for 5 laws creating new rights
  • The law must exhibit congruence and
    proportionality between the injury to be
    prevented and the means adopted to that end
  • Congress can only respond to state transgressions

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 15th 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 ADAs 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 11th Amd.
  • 11th is more than a w/drawal of jdx it evinces a
    substantive rule of law (immunity defense)
  • Federal substantive law applies in state court
  • SI as a constitutional rule
  • Not based on 11th amd. per se
  • Not based on any constitutional text
  • Based on constl understandings

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

37
Recap
  • 11th Amendment limits federal jurisdiction
  • States may not be sued w/o consent in fed ct
  • State officers may be sued - stripping doctrine
  • Only for equitable relief
  • Damage action requires valid cong. abrogation
  • 11th Amendment limits statutory rights
  • States may not be sued in any court for damages
    w/o valid congressional abrogation
  • Can only abrogate under 14th amd 5 (and 15th 2)
  • Requires congruence and proportionality

This is not really the result of 11th amend, but
the corresponding doctrine of state sovereignty
38
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39
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