Supreme Court to State: Go Sue Yourself

By Mike Dorf

Yesterday the Supreme Court decided a case that, on the surface, appears to be extraordinarily technical--so much so that it will be a challenge even to explain what it was about.  But I beg the reader's indulgence because it implicates issues that should be of general interest.

Let's begin with some background: The plain language of the original Constitution permits citizens of one state to sue other states.  In 1793, the Supreme Court in Chisholm v. Georgia ruled that that language means what it says.  Very shortly thereafter, the People adopted the Eleventh Amendment, which forbids federal courts from hearing such cases.  In an 1890 case called Hans v. Louisiana, the Court held that the Eleventh Amendment implies more than its literal text, and (5-4) decisions of the Rehnqhuist Court extended Hans so that the Court now enforces a general principle of state sovereign immunity, making states immune to private lawsuits for money damages.  There are a number of important exceptions to state sovereign immunity, however, including the ability of a private party to sue a state official for an injunction rather than for damages paid from the state treasury.  That was allowed in the 1908 case of Ex Parte Young, and (subject to its own exceptions), the Ex Parte Young exception has co-existed with state sovereign immunity ever since.

Yesterday's decision in Virginia Office for Protection and Advocacy (VOPA) v. Stewart raised a novel issue. An "independent" state agency sued a state official seeking an order that the state official comply with federal law.  Everyone agrees that if the plaintiff were a private party, the lawsuit would be allowed under the Ex Parte Young exception. However, the defendant state official argued--and the U.S. Court of Appeals for the 4th Circuit agreed--that because this was an "intramural" dispute between two different parts of the state, federal court adjudication would constitute the sort of insult to the state's "dignity" that the Court's sovereign immunity doctrine protects against.

Justice Scalia's majority opinion treats the defendant's argument (rightly, in my view) as a kind of non sequitur.  First, he expresses puzzlement over why the state suffers any greater insult when another part of the state sues than when a private party sues for injunctive relief against a state officer.  Second, he contends that state sovereign immunity does not, in any event, protect against all blows to a state's dignity.  He might have added a third point: that a state, as an artificial entity, doesn't have "dignity" in any direct sense, but such a claim would be inconsistent with the whole line of sovereign immunity cases, which Justice Scalia--along with Justices Kennedy and Thomas, who also joined the majority--has previously joined.  (CJ Roberts and Justice Alito dissented in VOPA; Justice Kagan was recused.)

Although the defendant's argument was a non sequitur, there are other reasons--having nothing to do with state sovereign immunity and thus not properly presented in yesterday's decision--why courts might want to hesitate before adjudicating "intra-governmental" disputes.  One worry is that the case may not involve a real contest and thus fails to satisfy the case-or-controversy requirement of the Constitution's Article III.  It is hard to know in the abstract when to take this concern seriously.  Suppose that the state Department of Parks sues the state Department of Transportation, seeking an order for the latter to clean up the damage that its snow plows did to some park lands.   If Parks wins, Transportation has to give Parks some money and so has less money to spend on everything else--unless the state shifts or raises more money for Transporation.  One would have to know more about the state budgeting process to know whether this sort of lawsuit only results in the shuffling of numbers on paper or results in a real reallocation of resources.

A second concern that intra-governmental lawsuits raise is separation of powers.  If you believe in the "unitary executive," then you will think that intra-executive disputes should be resolved by the chief executive making a decision, rather than going outside the executive branch to the courts.  That concern is not raised by either the majority or the dissent in VOPA, despite the fact that there are Justices in both the majority and the dissent who have previously expressed sympathy for the unitary executive theory.  Of course, that is a theory about the federal executive, whereas VOPA involved an intramural dispute within a state, so the unitary executive theory wasn't directly implicated.  Still, the federalism issues in VOPA are sufficiently analogous to the federalism issues in a case that involves federal agencies that it would not have been surprising to see them discussed.

Bottom Line: An interesting little case that hints at bigger issues than it decides.