Spring 2004 Con Law I

Constitutional Law I

Eleventh Amendment

Oct. 18, 2004

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Meaning of Sovereign Immunity

The Sovereign (king, State, officers) is not bound by the law Hard to maintain in post-1776 America

Non sub homine, sed sub Deo et lege Rule of substantive lawThe Sovereign is not subject to suit in its own courts without its consent Rule of jurisdiction

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BackgroundChisholm v. Georgia (1793) Georgia reneges on a revolutionary war debt Chisholm sues; GA asserts sovereign immunity Art. III, § 2: “The judicial power shall

extend to … all controversies between a State and citizens of another State…” Does this language merely confer jurisdiction; Does it enact a rule of law overriding immunity

defenses states might otherwise have? S.Ct. adopts 2d interpretation: no SI in fed ct.

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Enactment of 11th Amendment

Text “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.”

Sovereign Immunity How does 11th Amd correct Chisholm?

Withdraws federal jurisdiction in certain cases; or Creates a rule of law – sovereign immunity

If the latter, does the 11th merely restore or does it create state sovereignty?

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Withdrawal of Federal JdxDiversity Suits 11th amd divests federal courts of jdx

over states (as defendant)

The judicial Power [of the United States] shall extend to all Cases, in Law and Equity… between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign state.”

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Withdrawal of Federal JdxDiversity Suits 11th amd divests federal courts of jdx over

states (as defendant)Federal Question cases Hans v. Louisianna (1890)

11th Amd. to be liberally construed Withdraws federal jurisdiction against state

defendants in all cases, including federal question cases.

Compare Sedgwick proposal (for 11th amd): "No state shall be liable to be made a party

defendant, in any of the judicial courts established … under the authority of the United States …"

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Federal Supremacy after 11th Am

Effect of 11th on federal supremacy If states can't be sued in fed. court on federal

claims, how is const'n enforced against them? Suit in state court

Myth of parity Review by USSC

Stripping doctrine Suits against state officers (Ex Parte Young)

A state officer violating federal law cannot be acting on behalf of the state, so cannot assert state SI

Only applies to injunctive relief Damages come from state treasury

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ExceptionsStripping Doctrine (Ex Parte Young)

Inapplicable to local government (Mt. Healthy)Inapplicable in Supreme Court (ME v. Thiboutot)

Inapplicable in suits by federal gov’t (US v. MS or other states (CO v. NM)

Explicit State Waiver (Atascadero) By statute (e.g., Prop 57 bonds) By invoking federal jurisdiction (Clark v. Barnard) By removing case to federal court (Lapides)

At least where state waives immunity in state court

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ExceptionsCongressional Abrogation Theory: in ratifying the constitution,

states relinquished power – hence sovereignty. When congress acts within its enumerated power, states have no sovereignty.

Not all federal laws abrogate SI – only those that say they do

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Congressional AbrogationPower to Abrogate 14th Amd. Section 5 (post-dates 11th

amd) Section 8 (pre-dates 11th amd)Explicit abrogation Congress must make clear that law

extends to states (Gregory v. Ashcroft) and that enforcement suits may be brought against state in federal court

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Abrogation under Section 5

Fitzpatrick v. Bitzer (1976) 14th amd is a limitation on state power

States have no sovereign right to act contrary § 5 empowers congress to enforce those

limits States have no sovereign right to defy

enforcements 11th Amd (whatever it means) is limited

by subsequent enactment of 14th Amd Gen'l rule of construction: in case of conflicting

provisions, the later in time controls

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Abrogation under Section 8

Pennsylvania v. Union Gas (1989) 11th Amd did not create sovereign immunity;

it restored that which existed before Chisholm Whatever sovereign immunity states enjoyed

prior to ratification, they ceded it coextensive with grants of substantive power to congress. This "background principle" of State sovereign

immunity was necessarily limited by § 8 grants of power to congress

Any enactment within congress' § 8 powers is capable of overriding state sovereign immunity

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Seminole Tribe v. Florida (1996)

Indian Gamin 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 clauseAbrogation Does act "unequivocally

express" congress' "intent to abrogate [state] immunity"?

Can congress do so?

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Seminole Tribe v. Florida (1996)

Majority: Section 8 powers were limited by 11th Amd Congress cannot abrogate when acting per § 8 Penn. V. Union Gas overruled

Stevens dissent: Congress cannot provide

enforce-ment against states of most federal rights

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Seminole Tribe v. Florida (1996)

Souter dissent: Did states enjoy SI in own courts before 1789? If so, did that immunity carry over to federal

courts after ratification? No historical record, at least wrt federal question

cases, suggesting "a general understanding that the States would have no immunity in such cases"

Even if state otherwise have SI in federal cases, can congress abrogate it? What is the federalism difference between suits

under self-executing provisions of the constitution, & Suits explicitly authorized by Congress?

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Florida Prepaid v. College SB (1999)

College SB patent infringed by state agency Patent laws passed pursuant to patent clause Fed courts have exclusive jdx in patent cases Patent Remedy Act allows suits against statesCan congress abrogate SI per Patent Clause No different than other § 8 powersCan congress abrogate SI per § 5 powers Yes, so long as law is "appropriate"

Congruence & proportionality test of Boerne

This case not

covered Fall 04

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Florida Prepaid v. College SB (1999)

Congruence & proportionality for § 5 laws1. What constitutional violation is at stake?

State infringement of patent (federal property right) If done w/o compensation, it violates "due process"

2. Is the remedy provided by congress congruent to this constitutional wrong? Act allows suit without first seeking comp. from state

3. Viewed as a prophylactic measure, is it propor-tional to likelihood & magnitude of the wrong? Apparently not since no pattern of widespread abuse Prophylactic laws appropriate only for "widespread

and persisting deprivation of constitutional rights"

New require-ment for § 5 enact-ments

This case not

covered Fall 04

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Florida Prepaid v. College SB (1999)

Congruence & proportionality for § 5 laws Conclusion: Since the Patent Remedy Act is

neither remedial nor prophylactic, It is not responsive to unconstitutional behavior § 5 must be a contrived basis for the law; it is

really based on § 8.Stevens dissent: Court creates loophold in patent law; states

have total freedom to infringe private property Patents issued to, and infringement by, states is not a

trivial issue

This case not

covered Fall 04

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Kimel v. Fla Bd. of Regents (2000)

Age Discrimination in Employment Act (ADEA) Prohibits age discrimination by employers

Including states With exceptions (e.g., BFOQ)

Passed pursuant to congress' § 8 & § 5 powers The former cannot abrogate state sovereignty The latter can, but only if Congruent & Proportional

to a 14th Amd violationBoerne Test: Congruent: remedy must track § 1 violation Proportional: preventative measures must

be in relation to risk of § 1 harm

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Kimel v. Fla Bd. of Regents (2000)

Boerne Test:1. Identify the constitutional violation

Irrational age discrimination; almost never found since age can be used as a proxy for everything else

2. Congruence ADEA is not congruent because it forbids perfectly

lawful discrimination by state and local gov'ts3. Proportionality

As a prophylactic measure to prevent unconst. age discrimination, ADEA is way out of proportion Unconst. age discrimination is an inconsequential problem; Therefore, this is not an appropriateappropriate legislative response

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Univ of Alabama v. Garrett (2001)

Americans with Disabilities Act (ADA) Title I Prohibits discrimination by employers (states)Boerne Test:1. Identify the constitutional violation

Discrimination against disabled subject to RB test States need not accommodate disabled (if rational)

2. Congruence ADA not congruent since it forbids lawful state action

3. Proportionality No overwhelming evidence of irrational state discrim.

Irrational discrim. by cities not relevant since no SI § 5 law must be proportional to unconst StateState action

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Univ of Alabama v. Garrett (2001)

Boerne Test:3. Proportionality

Congress cannot legislate against isolated or occasional unconstitutional state actions

There must be widespread pattern of illegality before it is "appropriate" for congress to legislate against it.

And the pattern must be found by Congress itself, not some agency or independent task force

Cumulative impact of Garrett et al. Congress cannot create new rights Congress cannot expand scope of

existing rights, beyond S.Ct. rule

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Tennessee v. Lane (2004)ADA Title II prohibits discrimination against qualified individuals by a “public entity” Tennessee state courthouses not accessible Congressional findings:

•disabled are discrete and insular minority

•history of purpose-ful discrimination

•unfair stereotype assumptions

same as Supreme Court’s

“indicia of suspect class”

for equal protection

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Tennessee v. Lane (2004)Abrogation of 11th Amendment Immunity Clear statement required

“States shall not be immune” Valid enactment (14th amd § 5) requiredBoerne test: Identify const’l rights at stake

irrational discrimination against disabled due process access to judicial system (courts) criminal procedure rights (6th am. confrontation)

congruence and proportionality

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Tennessee v. Lane (2004)Congruence: Statutory remedy must match const’l rights

Aimed at due process violations (strict scrutiny)Proportionality: Risk and scope of const’l violation must justify

prophylactic (preventative) measures High risk: “pattern of unconstitutional treatment” –

up to 76% of public services were inaccesable Scope/breadth: Title II does not over-respond to

const’l violations. Only reasonable accommodations are required.

If it did, the Act might be viewed as an attempt to “rewrite the 14th Amd;” i.e., create new rights

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Tennessee v. Lane (2004)Dissent (Rehnquist on Congruence) Title II duty to accommodate not limited to

services/actions that trigger strict scrutiny Same as to much of the evidence before congress Apply rationality standard for physical barriers

Higher standard required for § 5 enactments when abrogating state sov. immunity No widespread pattern of State violations; most

cases cited by congress involved local gov’t, which doesn’t have 11th Amd immunity

But, County courts are “arms of the state” for 11th amd.

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Tennessee v. Lane (2004)Dissent (Rehnquist on Proportionality)Title II applies to instances where failure to accommodate is lawful (e.g., hockey rinks) Scope/breadth: Title II is not overkill simply

because some applications (not before Court) might not pass.

FACIAL vs. AS-APPLIED unconstitutionality

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Tennessee v. Lane (2004)Dissent (Rehnquist on Proportionality)Title II applies to instances where failure to accommodate is lawful (e.g., hockey rinks) Scope/breadth: Title II is not overkill simply

because some applications (not before Court) might not pass.

FACIAL vs. AS-APPLIED unconstitutionality

Rehnquist is wrong: There is no such thing as

FACIAL constitutionality

That a law might be unconsti-tutional AS-

APPLIED in some other case (not before the Ct) is

immaterial to this case

Dissent (Scalia on Boerne)Congrence/Proportion’y invites judicial activism

Replace with strict interpretation of “enforce” Dictionary definition (1868). No prophylactic laws; only remedial (ex. race

discrim)Why not same approach for text of 11th Amd?

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Alden v. Maine (1999)Suit against Maine under FLSA Fed.Ct. lacks jdx per 11th Amd. 11th is more than a w/drawal of jdx; it evinces

a substantive rule of law (immunity defense) Federal substantive law applies in state courtSI as a constitutional rule Not based on 11th amd. per se Not based on any constitutional text Based on const’l understandings

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Alden v. Maine (1999)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?

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FMC v. S. Carolina (2002)Claim: SC violates Shipping ActForum: Federal Agency (“Art. I court”) Agencies often adjudicate claims pertaining to

their specialized jdx Agencies can also file suit on behalf of

claimant e.g., US v. Morrison; NLRB

Neither 11th Amd. nor SI apply to suits against states by US

“Dual Sovereignty” in agency adjudications 11th Amd. does not apply by its own terms No history of SI – no federal agencies

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FMC v. S. Carolina (2002)No text, no historical practice, then what? Ask the framers

“To decide whether SI applies here we must examine FMC adjudications to determine whether they are the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.”

“we cannot imagine that they would have found it acceptable to compel a State to answer complaints of private parties before an administrative tribunal”

By extension “FMC administrative proceedings bear a remarkably

strong resemblance to civil litigation in federal cts.”

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FMC v. S. Carolina (2002)Deconstructing FMC proceedings Step 1: private citizen asks US to sue

Breyer: 1st amendment right to do so Step 2: US may file suit in federal court

SI doesn’t apply to suits against states by the US Bottom line Actions that challenge a state’s “dignity” are

barred, not by anything actually in the consti-tution, but by what 5 members of the court think the framers would have preferred. These 5 judges are the “strict constructionists” Other judges are “activist”