Constitutional LawSpring 2008Prof. Fischer

Class 15Limits on Legislative Power/Judicial

Power: Sovereign Immunity and Amendment XI

Amendment XI (ratified 1795)

• The judicial power of the United States shall not be construed to extend to any [suit] commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects or any Foreign States.

History of Sovereign Immunity: Common Law Doctrine - Crown Immunity

• "The State of monarchy is the supreme thing on Earth........ As to dispute what God may do is blasphemy, so is it treason in subjects to dispute what a king may do.....“ (James I – The Trew Law of Monarchy (1598)

• "A good king will frame his actions according to the law, yet he is not bound thereto but of his own goodwill.“ (James I -1598 – The Trew Law of Monarchy (1598))

Is sovereign immunity an anachronistic doctrine?

• Felix Frankfurter (born 1882 in the Austro-Hungarian Empire) argued that it was “an anachronistic survival of monarchical privilege”

• In Great Northern Life Ins. Co. v. , 322 U.S. 47 (1944) Frankfurter stated that sovereign immunity “undoubtedly runs counter to modern democratic notions of the moral responsibility of the State.”

History of Eleventh Amendment

• Reaction to Supreme Court decision in Chisholm v. Georgia (1794) on whether Article III authorized suit against Georgia without its consent

• Chief Justice John Jay (left) agreed with Blair, Wilson, Cushing that it did. Iredell lone dissenter

Hans v. Louisiana (1890) [C p. 223]

• Suit by Hans (LA citizen) against LA

• Claim: violation of Contracts Clause A I § 10

• Justice Bradley wrote the opinion of the Court

Limits on Eleventh Amendment immunity

• What are the three main limits on state immunity?

1. Limit on state immunity: certain lawsuits against state officials

• Ex parte Young (1908) [C p. 223]• Lawsuits for injunctive relief• Damages?• Exceptions – no state claims via

supplemental (pendant) jurisdiction under 28 U.S.C. § 1367; lawsuits enforcing laws with comprehensive enforcement mechanisms (e.g. IGRA in Seminole Tribe v. Florida (1996))

2. Limit on state immunity: WAIVER/CONSENT

• Must be explicit.

• No constructive waivers

• No implied waivers.

3. Limit on state immunity: abrogation

Other limits on state sovereign immunity

• Lawsuits by federal government against the states

• Lawsuits in admiralty• Lawsuits by state against other states (as

long as state suing to protect own interests, not that of citizens)

• Lawsuits against municipalities or political subdivisions of states as long as not really suing states

Seminole Tribe v. Florida (1996) [C p. 228]

• Statute at issue: IGRA

• Gaming has caused Seminole Tribe to rise from abject poverty to huge wealth

Seminole Tribe v. Florida (1996) [C p. 228]

• Majority opinion of Justice Rehnquist, joined by O’Connor, Scalia, Kennedy, and Thomas

Seminole Tribe v. Florida (1996) [C p. 228]

• Dissent of Stevens (who telecommutes from Florida for around 2 weeks each month in the winter months)

Seminole Tribe v. Florida (1996) [C p. 228]

• Dissent of Souter, joined by Ginsburg and Breyer