11th Amendment/State Sovereign Immunity

[Leslie Goldstein]

I reply actually to comment on Mike McConnell's comment on this note.  While I am sure
that pointing to Art I,sect10 as a defense against something like an ex post facto law
was the contemplated remedy circa 1787, this remedy does not have an obvious
applicability to clauses like "The state shall grant no titles of nobility."  A
private lawsuit would not seem to address it either, however (no obvious holder of
standing).  Such clauses  (repub.form of govt. too) would seem to demand fed. polit.
branch enforcement of some kind.
LFG

"Arthur D. Wolf" wrote:

> Dear Friends,
>
>         Let me add a few additional thoughts to the dialogue on the 11th
> Amendment/sovereign immunity discussion.  First, while the Court's recent
> decisions regarding sovereign immunity seem broad, they apply (so far) only
> to private suits for damages (and maybe for injunctive relief as well,
> although the lower courts in Alden awarded the plaintiffs injunctive
> relief).  Even under Seminole Tribe and Alden, Congress may, through its
> Commerce Clause power (and the necessary and proper clause), give the
> United States government the authority to initiate suits for monetary and
> injunctive relief against states, including relief for individual citizens
> (at least for the moment) for violations of statutory claims, such as the
> Indian Gaming Regulatory Act and the Fair Labor Standards Act.  In
> addition, Congress may be able to use the Spending Clause or Section 5 to
> seek a waiver of or abrogate state sovereign immunity (subject to the
> limits, respectively of South Dakota v. Dole and Boerne, et al.) for
> private damage suits.
>
>         Second, with respect to the viability of Ex parte Young (quaintly referred
> to as EPY), Doug is right that its days are numbered for statutory claims
> (without appropriate congressional action), but he leaves open EPY as a
> remedy for constitutional violations.  A few days ago, I suggested that
> even that avenue may be closing for the reasons I earlier outlined.  I do
> not agree that the result would be catastrophic since suits by the US
> would still be available (not to mention congressional remedies through the
> spending clause and Section 5 running in favor of private individuals).  I
> have difficulty seeing how a suit for damages against a state official in
> his official capacity is in effect (so the Court tells us in Edelman) a
> suit against the state, while a suit for injunctive relief against that
> same official is *not* in effect a suit against the state.  Of course, this
> is the essence of the EPY fiction: a state official, when sued for
> injunctive relief, is the state for purposes of the 14th Amendment, but is
> not the state for purposes of the 11th Amendment.  Radical or not, that
> fiction may not have a long and prosperous future.
>
>         Third, the Court could, I suppose, hold that private suits for injunctive
> relief against states or state officials for constitutional violations are
> part of the "plan of the Convention."  That is, the drafters intended to
> except from state sovereign immunity private litigation for constitutional
> violations.  This would mean, for example, that Congress has no power to
> authorize suits by private persons for damages (and maybe not injunctive
> relief) against states under the Commerce Clause, but private persons have
> an implied right of action (as in EPY) against state officials for
> injunctive relief based on the Dormant Commerce Clause.  Section 1983 may
> already provide such a remedy so the EPY remedy may be quite unnecessary.
>
>         When one examines all of the restrictions against states in the original
> Constitution, such as the limits in Art. I, Section 10 (which were viewed
> in 1787 as very important), one wonders what enforcement mechanism the
> framers had in mind for ensuring that the states complied with these
> restrictions (prior to Section 1983).  One answer is suits by the United
> States or other states.  A second answer is suits by private individuals
> for injunctive relief.  The first answer would be more consistent with the
> Court's recent decisions on sovereign immunity, which speak of allowing
> suits by states against other states, and by the United States against
> states as part of the "plan of the Convention."  But for the decision in
> EPY and recent Section 1983 decisions, the second answer would be a
> stretch, especially in light of the 11th Amendment's textual reference to
> suits in equity.  If that language does not bar private, federal court
> suits against states (and their officials) for injunctions, I would like to
> know what it does mean.  To be sure, Section 1983 may be viewed as a
> congressional override of 11th amendment and "Convention" state sovereign
> immunity.
>
>         Fourth, as several list folks have observed, private suits for damages
> against state officials in their  individual capacities are still
> available.  With state indemnification statutes or policies, this may be
> the easy answer to Seminole Tribe and Alden.  Of course, the state
> officials could assert qualified immunity defenses, but in a case like
> Alden, that defense would probably fail since the FLSA violation appeared
> so blatant.  Even states without indemnification statutes or policies might
> very well enact them (or waive sovereign immunity) if their officials were
> regularly sued for damages and made to pay such judgments out of their own
> pockets.  The Federal Tort Claims Act and comparable state statutes are
> examples of legislatures substituting sovereign liability for individual
> liability of state (and sometimes local) officers and employees.  Is this
> the avenue for filling the governmental liability gap left by Monell?
> States adopting respondeat superior on their own as a response to suits for
> money damages against their employees caused by Seminole and Alden?  Talk
> about the law of unintended consequences.
>
>                                         Art Wolf
>                                         Western New England College
>
> At 11:15 AM 4/13/2000 -0400, Melissa L. Koehn wrote:
> >For people interested in this topic, I highly recommend
> >John LaVelle's recent article:
> >
> >Sanctioning a Tyranny:  The Diminishment of Ex Parte Young,
> >Expansion of Hans Immunity, and Denial of Indian Rights in
> >Coeur d'Alene Tribe, 31 ARiz. St. L. J. 787 (1999)
> >
> >
> >Melissa L. Tatum
> >Visiting Assistant Professor
> >Wayne State University Law School
> >koehnm at utulsa.edu
> >