Sovereign Immunity, Judicial Aggression, and the Rule of People not Law
By Eric Segall
The competition is tough, but the Eleventh Amendment still might be the most misunderstood amendment to the Constitution.
When can states be sued in federal court for violating federal law, assuming a valid cause of action under either a statute or the Constitution? This question has major implications for our federalist system. The possible answers are always, never, or sometimes, and the stakes of the answer are incredibly high. Too much accountability could expose the states to federal control in ways that could damage their finances and sovereignty, but too little accountability could jeopardize the supremacy of important federal laws and the Constitution. Sadly, the Supreme Court’s answer to this important question (sometimes) is incoherent and terrible policy as well. This term, in Penn East Pipeline v New Jersey, the Court doubled down on its own incoherence.
The Constitution speaks directly to the question under what circumstances states are allowed to assert sovereign immunity in federal courts. The 11th Amendment provides the following:
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 a citizen of another state or by citizens or subjects of any foreign state.
Unlike most of the Constitution's clauses that are subject to litigation, like the equal protection clause, the due process clause, and the First and Second Amendments, the 11th Amendment could not be more precise. It was ratified after the Court held in Chisholm v. Georgia that a citizen of South Carolina could sue Georgia for debts owed after the revolutionary war. The public strongly disagreed and the 11th Amendment was ratified by the states a little more than a year later.
The Amendment unequivocally bars all lawsuits, whether in law (damages) or equity (injunctive relief) in federal court brought by citizens of "another" state. If the Court cared about text, the 11th Amendment would be easy to interpret and apply.
But, as I've documented in detail, the Court does not care about text if doing so is contrary to the Justices' policy preferences.
Thus, in Hans v. Louisiana, decided shortly after the Civil War, the Court held that the 11th Amendment prohibited a suit by a citizen of Louisiana against Louisiana even though the text only applies to citizens of "another state." The word "another" is not unclear or subject to interpretation. So how did the Court avoid that reading? Here is how:
Can we suppose that, when the eleventh amendment was adopted, it was understood to be left open for citizens of a state to sue their own state in the federal courts, while the idea of suits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that congress, when proposing the eleventh amendment, had appended to it a proviso that nothing therein contained should prevent a state from being sued by its own citizens in cases arising under the constitution or laws of the United States, can we imagine that it would have been adopted by the states? The supposition that it would is almost an absurdity on its face.
The so-called absurdity doctrine that courts sometime use to avoid clear text they don't like is extremely narrow and almost never applied to the Constitution (as opposed to statutory law). Moreover, though it may not be good policy to allow citizens of states to sue their own states but not other states under federal law, that value judgment is by no means absurd. States owe their own citizens responsibilities they don't owe citizens of other states and are generally more responsive to their own citizens than to the citizens of other states. Also, the 11th Amendment was meant to overturn Chisholm, which involved a suit against a state by a "citizen of another state."
Speaking of Chisholm and history, the overwhelming scholarly consensus is that the framers themselves were conflicted about state sovereign immunity but mostly discussed that immunity in the context of diversity suits for money. As Justice Souter has pointed out, there is virtually no record of founding era debates devoted to whether states would be immune in federal courts when sued under supreme federal statutes. On that precise issue, there is no historical agreement.
Once Hans was decided in this anti-textual way, the Court (and the country) had a serious problem. The 14th Amendment bars states from denying people the equal protection of the laws and the due process of law, as well as abridging the privileges or immunities of the citizens of the United States. Of course, the Fourteenth Amendment was ratified in large part to protect the newly freed slaves but it was written much more broadly than that. If states could not be sued for violations of the 14th Amendment in federal court, the amendment would become largely a dead letter. So the Court had to fix its first mythical interpretation with another one--the so-called Young fiction.
At the turn of the 20th century, Minnesota passed a law regulating railroad rates, which made the company and its shareholders upset. They sued Minnesota's Attorney General (Young) seeking an injunction against him enforcing the rate law. The litigation was complicated but the central issue was not: could citizens of Minnesota challenge the rate law in federal court? Attorney General Young argued that, after Hans, the 11th Amendment applied to citizens of Minnesota the same way it applied to out-of-state citizens (despite the clear text).
The Court ruled against Young, however, finding that suits against state officers for injunctive relief were not barred by the 11th Amendment because such lawsuits are not really against a state. The Court said the following: "It is the settled doctrine of this court that a suit against individuals, for the purpose of preventing them, as officers of a State, from enforcing an unconstitutional enactment, to the injury of the rights of the plaintiff, is not a suit against the State within the meaning of [the 11th] Amendment."
This stripping of state authority from state officers is utter nonsense. As Justice Harlan pointed out in dissent, this lawsuit was:
one against [Young] as, and only because he was, Attorney General of Minnesota. No relief was sought against him individually, but only in his capacity as Attorney General. And the manifest, indeed the avowed and admitted, object of seeking such relief, was to tie the hands of the State, so that it could not in any manner or by any mode of proceeding, in its own courts, test the validity of the statutes and orders in question. It would therefore seem clear that, within the true meaning of the Eleventh Amendment, the suit brought in the Federal court was one, in legal effect, against the State -- as much so as if the State had been formally named on the record as a party -- and therefore it was a suit to which, under the Amendment, so far as the State or its Attorney General was concerned, the judicial power of the United States did not and could not extend.
But Young is still (mostly) the law today. With just a few narrow exceptions, suits against state officers under federal law for injunctive relief are not barred by the 11th Amendment because of the fiction that suing the officer is somehow not suing the state even though any and all injunctive relief will run against the state. Moreover, the 14th Amendment only applies to state action but courts since Young have applied the restrictions of the 14th Amendment to state officers in Young-type suits, leading to the bizarre state of affairs that, in the very same lawsuit, a state officer is not a state actor for purposes of the 11th Amendment but is a state actor for purposes of the 14th Amendment for doing the exact same things at the exact same time to the exact same plaintiffs. Sigh.
Ever since Young, courts have upheld and repeated these myths because that seems to be the easiest way to reconcile state accountability under the 14th Amendment with state immunity under the 11th Amendment. Whatever the pros and cons of such a regime, however, there is nothing in the text of the 11th Amendment or any other constitutional provision to suggest such results, and the Court normally does not favor implied repeal of constitutional provisions.
What relief may plaintiffs obtain in Young-type suits? The Court has made clear that the Young fiction only applies to injunctive relief, not to damages. Thus, when Illinois violated federal law regarding welfare payments, the plaintiffs could obtain injunctive relief by suing state officers but they were not entitled to damages or even the money that they were unlawfully denied by Illinois officials. That type of relief. the Court said, would have to be paid by the state and thus, unlike suits for injunctive relief, are "really" against the state.
And we have another fiction: a suit for an injunction asking for relief that will cost the state $1,000,000,000 in the future is not barred by the 11th Amendment because it is not really a suit against the state, but a suit for $75,000 in back damages is barred because that is a suit against the state. And while you mull over that nonsense, remember that the 11th Amendment treats suits in "law" and "equity" exactly the same. So much for text.
And it gets worse. What if Congress wants to abrogate a state's sovereign immunity using its enumerated powers? In 1989, the Court held 5-4 that Congress could take away a state's sovereign immunity when it exercises its Article I powers, like the commerce cause. That decision effectively negated the 11th Amendment if Congress spoke clearly enough in the statute. That decision lasted until Justice Clarence Thomas replaced Justice Thurgood Marshall.
In Seminole Tribe v. Florida, a newly constituted Court reversed itself and held that Congress could not take away a state's sovereign immunity when acting under its Article I powers like the commerce clause. The 5-4 decision kept the rest of Eleventh Amendment doctrine alive but firmly held that the 11th Amendment is more important for what it reflects than for what it says. What it reflects, according to the conservative Justices, is a non-textual pre-constitutional rule of state sovereign immunity that Congress cannot take away except when it uses its power to enforce the 14th Amendment. Why that exception? Because the 14th Amendment came after the 11th Amendment and thus can trump it as long as Congress says so in an exceptionally clear statement.
The notion that the clear text of the 11th Amendment is more important for what it reflects than for what it says was formulated by former Chief Justice William Rehnquist, and signed on to by those hall of fame textualists Justices Scalia and Thomas. I guess clear text only binds the Court when the Justices say so. Otherwise, hack at it, expand it, limit it, whatever it takes to impose one's political preferences on the rest of us.
As of 2005, the law of the Eleventh Amendment was that Congress could authorize suits for damages against states only pursuant to its authority under Section 5 of the 14th Amendment. The Court's five conservatives at the time considered state sovereign immunity as being much broader than the text of the 11th Amendment would suggest, applying it to suits brought by both in-state and out-of-state plaintiffs, while the four liberal Justices would have applied the Amendment only to diversity (state law) cases brought by out-of-state citizens and not to any federal question cases. Neither approach is consistent with the clear text of the Amendment which only bars suits by out-of-state citizens but bars all such suits. In fact, to the best of my knowledge, no Justice in American history has written an opinion saying the 11th Amendment should be applied according to its clear text.
And the doctrine gets even crazier. In the last year of her career, Justice Sandra Day O'Connor, who had voted with the other four conservatives in Seminole Tribe, inexplicably changed sides and agreed with the four liberals that Congress could take away a state's sovereign immunity when acting under the bankruptcy power enumerated in Article I, Section 8, even though the Court continued to hold that Congress could not abrogate sovereign immunity under the commerce clause or other Article I powers. She did not write separately to explain her vote. As Justice Thomas implicitly noted in dissent, he understood that the four liberals would have overturned Seminole Tribe if they had the votes, but they didn't. So Justice Stevens's majority opinion had to try and distinguish the commerce power (and all other Article I powers) from the bankruptcy power for the purposes of the 11th Amendment, and that is simply an impossible task. As Thomas said, the "majority’s action today ... is difficult to comprehend. Nothing in the text, structure, or history of the Constitution indicates that the Bankruptcy Clause, in contrast to all of the other provisions of Article I, manifests the States’ consent to be sued by private citizens."
After this decision, this was the lay of the land: The 11th Amendment applies to suits against states brought by both their citizens and out-of-state citizens even though the 11th Amendment is limited to suits against a state by citizens of "another state." The 11th Amendment does not apply, however, to most claims for prospective injunctive relief though it bars claims for monetary damages even though the text treats claims in "law" and "equity" exactly the same. Congress can take away a state's immunity when acting under Section 5 of the 14th Amendment and its bankruptcy power but under no other Article I powers (like the commerce clause). There is of no rhyme or reason to any of this.
And it gets worse. The Court has held that the defense of sovereign immunity "partakes" of subject matter jurisdiction such that the state does not waive the issue by failing to raise it at the trial court level. Okay, but the Court has also been clear that states may waive the defense, something that is inconsistent with subject matter jurisdiction defects. Additionally, these rules allow states to sandbag plaintiffs if they so choose.
The Court has also held that the principles reflected in the 11th Amendment bar suits against states in the state courts of other states even though the 11th Amendment only applies in federal courts. And, again, although the sovereign immunity principle in the text of the 11th Amendment only applies to federal court actions, the Court has held that states cannot be sued in their own courts under federal law absent their express consent.
In other words, the Court has taken the precise text of the 11th Amendment and turned it into a jumping off point to articulate a host of non-textual sovereign immunity rules that look like a confusing tapestry of conflicting value judgments with little or no ties to text or history. All of which brings us to this term's case Penn East Pipeline v New Jersey.
The facts of Penn East were complicated, but there were two major legal issues in the case: 1) Can Congress delegate to private parties the power of eminent domain?, and 2) assuming Congress can do so, do states retain sovereign immunity in response to private lawsuits seeking to exercise the delegated power of eminent domain?
The Court answered the first question in the affirmative (an issue beyond the scope of this post) and then turned to the 11th Amendment problem. Penn East involved an out-of-state plaintiff suing New Jersey under federal law. The text of the 11th Amendment unequivocally blocks that suit but that ship sailed a long time ago.
Chief Justice Roberts writing for the majority summarized 11th Amendment precedents and concluded that states have a constitutional immunity to suits in federal court unless they "agreed to suit in the 'plan of the Convention,' which is shorthand for 'the structure of the original Constitution itself....' The 'plan of the Convention' includes certain waivers of sovereign immunity to which all States implicitly consented at the founding." Roberts then found that the states implicitly agreed to surrender that immunity in eminent domain lawsuits when they ratified the Constitution.
I agree that the states surrendered their immunity when they ratified the Constitution but, unlike the majority in Penn East, not just for isolated Article I powers. The idea that the states only surrendered their alleged immunity from suit when Congress acts under its bankruptcy authority and now its eminent domain power but not the commerce clause is absurd. There is no persuasive historical evidence to suggest such strange and conflicting rules. Moreover, the policy is terrible because sometimes Congress needs to hold the states liable for damages for violating federal law in order to be able to fully exercise its legislative powers. Such a need is especially important in the environmental context but, alas, the Court has decided that allowing Congress to take away a state's sovereign immunity under most of its Article I powers is a bridge too far, even though Congress can do so under the bankruptcy and eminent domain powers. That is pure policy divorced from any meaningful analysis of text or history.
So, when should states be allowed to assert sovereign immunity in federal court in federal law cases? As a policy matter, I would prefer the answer be never for the simple reason that, as Justice Souter explained in detail in his dissent in Seminole Tribe, states are not the sovereign when they are sued under federal law. In those kinds of cases, the United States is the sovereign and its law is supreme.
However, there is that pesky 11th Amendment, which prohibits all suits against non-consenting states brought by citizens of other states. I suggest we apply it as written and if the results are poor, which they would be, then amend the Constitution. In other words, where the text is clear, judges should follow it.
Some academics, such as Will Baude and Steve Sachs, have argued that the 11th Amendment was meant only to deal with the exact situation it describes, no less and no more. But they go on to argue that Congress lacks the power to subject states to suit even from their own citizens because they think history supports such a rule. Hogwash. The 11th Amendment was designed to address state sovereign immunity, it does so, and it is clear. Adding other examples of such immunity outside the text of the 11th Amendment is just using policy preferences to dictate what the Constitution means. I prefer to rely on clear text.
Readers of this blog know I constantly argue that originalism is based on the false premise that imprecise text like due process of law has no fixed original meaning. But where the text is precise, we do not need originalism or any other interpretive method. We can just read. The President has to be 35, each state gets two Senators, and the Eleventh Amendment bars all suits against a state by citizens of other states and no suits brought by citizens of the home state. Judges taking the power to turn precise text into a chaotic, complicated, common law system of conflicting rules and inconsistent results is judicial aggression at its worst.
Finally, Justice Gorsuch, that self-avowed textualist and originalist, dissented in Penn East saying that the text of the Eleventh Amendment:
First, the text of the 11th Amendment does not just bar diversity suits. It bars all suits against a state by citizens of other states. Obviously, Gorsuch does not really think the 11th Amendment means what it says. He is a fake textualist.
The other problem is that Justice Gorsuch also believes in massive non-textual limits on Congress' powers such as state immunity from federal lawsuits in state courts and immunity from federal lawsuits brought by their own citizens. What does it mean to say the 11th Amendment "means what it says" but then add to the text all kinds of made up common law rules giving states immunity in cases where they are not even the sovereign. Gorsuch does not actually believe that the 11th Amendment means what it says.
The Eleventh Amendment should be interpreted by judges according to its specific and clear text. Anything else is just the rule of people not the rule of law. If the consequences are terrible, change the law, which in this case is the United States Constitution.