11th Amendment/State Sovereign Immunity

[Blumstein, James]

I think it is worthwhile to put into the mix that 11th amendment (unlike
10th, if it is revived) does not apply to subdivisions of states such as
cities...


James F. Blumstein
Centennial Professor of Law
Vanderbilt Law School
131 21st Avenue South
Nashville, TN 37203
Telephone : (615) 322-2613
Fax: (615) 322-6631



-----Original Message-----
From: Douglas Laycock [mailto:dlaycock at MAIL.LAW.UTEXAS.EDU]
Sent: Wednesday, April 12, 2000 11:13 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: 11th Amendment/State Sovereign Immunity



Not quite. For claims alleging violations of the 14th Amendment, including
rights incorporated into the 14th Amendment, Congress could 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

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