11th Amendment/State Sovereign Immunity

[Conkle, Daniel O.]

Many thanks to Michael and Doug for their very helpful responses.

So, focusing now on non-damages actions, am I correct in assuming that if
the Court were ever to abandon Ex Parte Young (see the earlier post from Art
Wolf), that would have a truly radical impact on constitutional litigation,
precluding, for example, an action for a declaratory judgment or an
injunction against a state law alleged to violate the dormant commerce
clause or against a newly enacted state abortion law?

Dan Conkle

-----Original Message-----
From: Michael MASINTER [mailto:masinter at NOVA.EDU]
Sent: Wednesday, April 12, 2000 11:21 AM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Re: 11th Amendment/State Sovereign Immunity


I agree with Doug, but took the question to be whether, under existing
law, a damage action against the state could proceed for constitutional
wrongs.  Congress certainly can authorize such claims insofar as they
remedy fourteenth amendment violations, but has not done so with the clear
statement the Court requires.  It cannot authorize damages actions against
the state for violations of rights flowing only from the commerce clause
even with a clear statement.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Wed, 12 Apr 2000, Douglas Laycock wrote:

>         Not quite.  For claims alleging violations of the 14th Amendment,
> including rights incorporated into the 14th Amendment, Congress
> <italic>could </italic>authorize a damage action against states.  But its
> power to do so is subject to clear statement rules, and section 1983 does
> not do the job.  Will v. Michigan State Police in the late 80s held that
> a state is not a "person" within the meaning of 1983.
>
>
>         Where Congress has expressly overridden state immunity, the
argument now
> is whether the underlying statute is commerce clause legislation or 14th
> amendment legislation.  That was the issue in College Prepaid and in
> Kimel.  This issue arises because Congress does have the power to
> override immunity in legislation to enforce the 14th Amendment.
>
>
>         In the absence of legislation, the 11th Amendment certainly blocks
any
> implied right of action for damage actions under the Constitution, even
> if the Court were still willing to imply private rights of action.
>
>
> At 09:53 AM 04/12/2000 -0400, you wrote:
>
> >The answers are yes and yes.  More precisely, the suits can be brought
>
> >under 42 U.S.C. section 1983 against the state official in his / her
>
> >official capacity, but per Edelman v. Jordan, the 11th amendment still
>
> >bars restrospective monetary relief from the state whether designated
> as
>
> >damages or restitution for unjust enrichment.
>
> >
>
> >Michael R. Masinter                     3305 College Avenue
>
> >Nova Southeastern University            Fort Lauderdale, Fl. 33314
>
> >Shepard Broad Law Center                (954) 262-6151
>
> >masinter at nova.edu                       Chair, ACLU of Florida Legal
> Panel
>
> >
>
> >On Wed, 12 Apr 2000, Conkle, Daniel O. wrote:
>
> >
>
> >> I'm an 11th Amendment/state sovereign immunity novice, so please
> forgive me
>
> >> if this is a stupid question, but are there 11th Amendment/state
> sovereign
>
> >> immunity issues when a suit is brought claiming that a State has
> violated or
>
> >> is violating the *Constitution*, as opposed to a congressional statute
> such
>
> >> as the ADA, etc.?
>
> >>
>
> >> E.g., someone sues a State, claiming a violation of the dormant
> commerce
>
> >> clause.  Does state sovereign immunity bar a claim for damages,
> i.e.,
>
> >> against the State as such (assuming such a remedy is otherwise
> inferable
>
> >> from the Constitution)?  As to injunctive or declaratory relief, must
> the
>
> >> plaintiff challenger use the Ex Parte Young device?
>
> >>
>
> >> What about claims of individual rights under the 14th Am., or under
> the Bill
>
> >> of Rights as incorporated into the 14th Amendment?  E.g., someone
> brings a
>
> >> suit against a State for injunctive or declaratory relief against a
>
> >> restriction on abortion, claiming that it violates substantive due
> process.
>
> >> Clearly, Congress could authorize this suit under Section 5 of the
> 14th
>
> >> Amendment, but if there is no such congressional action, is the suit
> barred
>
> >> by sovereign immunity, requiring the challenger to use Ex Parte
> Young?
>
> >>
>
> >> Dan Conkle
>
> >> * * * * * * * * * * * * * * * * * * * * * * *
>
> >> Daniel O. Conkle
>
> >> Professor of Law
>
> >> Indiana University School of Law
>
> >> Bloomington, Indiana  47405
>
> >> (812) 855-4331
>
> >> fax (812) 855-0555
>
> >> mailto:conkle at indiana.edu
>
> >> * * * * * * * * * * * * * * * * * * * * * * *
>
> >>
>
> >>
>
> >
>
>
>
>
> Douglas Laycock
>
> University of Texas Law School
>
> 727 E. Dean Keeton St.
>
> Austin, TX  78705
>
>         512-232-1341 (phone)
>
>         512-471-6988 (fax)
>
>         dlaycock at mail.law.utexas.edu
>
>