# Edelman v. Jordan/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Brennan Marshall
Mr. Justice Douglas, dissenting.
Congress provided in 42 U.S.C. §1983 that:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
In this class action respondent sought to enforce against state aid officials of Illinois provisions of the Social Security Act, 42 U.S.C. §§1381-1385, known as the Aid to the Aged, Blind, or Disabled (AABD) program. The complaint alleges violations of the Equal Protection Clause of the Fourteenth Amendment and also violations of the Social Security Act. Hence §1983 is satisfied in haec verba, for a deprivation of "rights" which are "secured by the Constitution and laws" is alleged. The Court of Appeals, though ruling that the alleged constitutional violations had not occurred, sustained federal jurisdiction because federal "rights" were violated. The main issue tendered us is whether that ruling of the Court of Appeals is consistent with the Eleventh Amendment.
Once the federal court had jurisdiction over the case, the fact that it ruled adversely to the claimant on the constitutional claim did not deprive it of its pendent jurisdiction over the statutory claim. United States v. Georgia Pub. Serv. Comm'n, 371 U.S. 285, 287-288.
In Ex parte Young, 209 U.S. 123, a suit by stockholders of a railroad was brought in a federal court against state officials to enjoin the imposition of confiscatory rates on the railroad in violation of the Fourteenth Amendment. The Eleventh Amendment was interposed as a defense. The Court rejected the defense, saying that state officials with authority to enforce state laws "who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action." Id., at 156. The Court went on to say that a state official seeking to enforce in the name of a State an unconstitutional act "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequence of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Id., at 159-160.
As the complaint in the instant case alleges violations by officials of Illinois of the Equal Protection Clause of the Fourteenth Amendment, it seems that the case is governed by Ex parte Young so far as injunctive relief is concerned. The main thrust of the argument is that the instant case asks for relief which if granted would affect the treasury of the State.
Most welfare decisions by federal courts have a financial impact on the States. Under the existing federal-state cooperative system, a state desiring to participate, submits a "state plan" to HEW for approval; once HEW approves the plan the State is locked into the cooperative scheme until it withdraws, all as described in King v. Smith, 392 U.S. 309, 316 et seq. The welfare cases coming here have involved ultimately the financial responsibility of the State to beneficiaries claiming they were deprived of federal rights. King v. Smith required payment to children even though their mother was cohabitating with a man who could not pass muster as a [*682] "parent." Rosado v. Wyman, 397 U.S. 397, held that under this state-federal cooperative program a State could not reduce its standard of need in conflict with the federal standard. It is true that Rosado did not involve retroactive payments as are involved here. But the distinction is not relevant or material because the result in every welfare case coming here is to increase or reduce the financial responsibility of the participating State. In no case when the responsibility of the State is increased to meet the lawful demand of the beneficiary, is there any levy on state funds. Whether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same.
We have granted relief in other welfare cases which included retroactive assistance benefits or payments. In State Dept. of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, the sole issue presented to us was whether the Eleventh Amendment barred a judgment against state officers for retroactive welfare assistance benefits or payments. That had been ordered by the lower court and we summarily affirmed, only Mr. Justice White voting to note probable jurisdiction. We also summarily affirmed the judgment in Sterrett v. Mothers' & Children's Rights Organization, 409 U.S. 809, where one of the two questions was whether retroactive payments of benefits violated the Eleventh Amendment. In Wyman v. Bowens, 397 U.S. 49, we affirmed a judgment where payments were awarded in spite of the argument that the order was an incursion on the Eleventh Amendment. In Shapiro v. Thompson, 394 U.S. 618, we affirmed a judgment which ordered payment of benefits wrongfully withheld; and while we did not specifically refer to the point, the lower court had expressly rejected the Eleventh Amendment argument.
In Gaither v. Sterrett, 346 F.Supp. 1095, 1099, whose judgment we affirmed, 409 U.S. 1070, the court said:
"This court would note that if defendants' position regarding the jurisdictional bar of the Eleventh Amendment is correct, a great number of federal district court judgments are void, and the Supreme Court has affirmed many of these void judgments."
The Court of Appeals for the Seventh Circuit is in line with that view; the opposed view of the Court of Appeals for the Second Circuit in Rothstein v. Wyman, 467 F.2d 226, is out of harmony with the established law.
What is asked by the instant case is minor compared to the relief granted in Griffin v. School Board, 377 U.S. 218. In that case we authorized entry of an order putting an end to a segregated school system. We held, inter alia, that "the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other counties in Virginia." Id., at 233. We so held against vigorous contentions of the state officials that the Eleventh Amendment protected the State; and in reply we cited Lincoln County v. Luning, 133 U.S. 529, and Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 579, to support the proposition that "actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights." 377 U.S., at 233.
Griffin is sought to be distinguished on the ground that a "county" is not the "state" for purposes of the Eleventh Amendment. But constitutionally the county in Griffin was exercising state policy as are the counties here, because otherwise the claim of denial of equal protection would be of no avail.
Counties are citizens of their State for purposes of diversity of citizenship. Bullard v. City of Cisco, 290 U.S. 179; Moor v. County of Alameda, 411 U.S. 693, 718-719. And they are not States for purposes of 28 U.S.C. §1251 (a) which gives this Court original and exclusive jurisdiction of: "(1) All controversies between two or more states...." Illinois v. City of Milwaukee, 406 U.S. 91, 98. But, being citizens of their State, suits against them by another State are in our original but not exclusive jurisdiction under 28 U.S.C. §1251 (b)(3). Ibid. Yet, as agencies of the State whether in carrying out educational policies or otherwise, they are the State, as Griffin held, for purposes of the Fourteenth Amendment. And Griffin, like the present case, dealt only with liability to citizens for state policy and state action.
Yet petitioner asserts that money damages may not be awarded against state offenses, as such a judgment will expend itself on the state treasury. But we are unable to say that Illinois on entering the federal-state welfare program waived its immunity to suit for injunctions but did not waive its immunity for compensatory awards which remedy its willful defaults of obligations undertaken when it joined the cooperative venture.
It is said however, that the Eleventh Amendment is concerned, not with immunity of States from suit, but with the jurisdiction of the federal courts to entertain the suit. The Eleventh Amendment does not speak of "jurisdiction"; it withholds the "judicial power" of federal courts "to any suit in law or equity...against one of the United States...." If that "judicial power," or "jurisdiction" if one prefers that concept, may not be exercised even in "any suit in...equity" then Ex parte Young should be overruled. But there is none eager to take the step. Where a State has consented to join a federal-state cooperative project, it is realistic to conclude that the State has agreed to assume its obligations under that legislation. There is nothing in the Eleventh Amendment to suggest a difference between suits at law and suits in equity, for it treats the two without distinction. If common sense has any role to play in constitutional adjudication, once there is a waiver of immunity it must be true that it is complete so far as effective operation of the state-federal joint welfare program is concerned.
We have not always been unanimous in concluding when a State has waived its immunity. In Parden v. Terminal R. Co., 377 U.S. 184, where Alabama was sued by some of its citizens for injuries suffered in the interstate operation of an Alabama railroad, the State defended on the grounds of the Eleventh Amendment. The Court held that Alabama was liable as a carrier under the Federal Employers' Liability Act, saying:
"Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act," id., at 192.
The Court added:
"Our conclusion that this suit may be maintained is in accord with the common sense of this Nation's federalism. A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation." Id., at 196.
As the Court of Appeals in the instant case concluded, Illinois by entering into the joint federal-state welfare plan just as surely "[left] the sphere that is exclusively its own." Ibid.
It is argued that participation in the program of federal financial assistance is not sufficient to establish consent on the part of the State to be sued in federal courts. But it is not merely participation which supports a finding of Eleventh Amendment waiver, but participation in light of the existing state of the law as exhibited in such decisions as Shapiro v. Thompson, 394 U.S. 618, which affirmed judgments ordering retroactive payment of benefits. Today's holding that the Eleventh Amendment forbids court-ordered retroactive payments, as the Court recognizes, necessitates an express overruling of several of our recent decisions. But it was against the background of those decisions that Illinois continued its participation in the federal program, and it can hardly be claimed that such participation was in ignorance of the possibility of court-ordered retroactive payments. The decision to participate against that background of precedent can only be viewed as a waiver of immunity from such judgments.
I would affirm the judgment of the Court of Appeals.

#### Notes

* ↑ . Effective January 1, 1974, this AABD program was replaced by a similar program. See 42 U.S.C. §§801-805 (1970 ed., Supp. II). The program in Illinois is administered by the Department of Public Aid. Ill. Rev. Stat., c. 23, §§3-1 to 3-12 (1973). The former program was funded in part by the State and in part by the Federal Government. 42 U.S.C. §§303, 304, 306, 1201-1204, 1206, 1351-1355, 1381-1385.
* ↑ . The Eleventh Amendment provides: "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 Citizens of another State, or by Citizens or Subjects of any Foreign State."
* ↑ . The Social Security Act states what a "state plan" must provide. At the time this suit was brought, 42 U.S.C. §1382 (a) provided:
* ↑ . The lower court's opinion is found in [347 F.Supp. 1004]].
* ↑ . The jurisdictional statement had as its second question the following:
* ↑ . The lower court's opinion is found in 304 F.Supp. 717. Retroactive payments were challenged in question 2 of the jurisdictional statement.
* ↑ . The lower court's opinion is found in 270 F.Supp. 331.
* ↑ . Id., at 338 n. 5. The award of money damages was alleged to be a violation of the Eleventh Amendment in Part V of the jurisdictional statement.
* ↑ . The jurisdictional statement in the Sterrett case explicitly urged that the decree below violated the Eleventh Amendment since it would expend itself on the public treasury--the second question in the jurisdictional statement.
* ↑ . We settled in Rosado v. Wyman, 397 U.S. 397, the question whether the grant of authority under the Social Security Act to HEW to cut off federal funds for noncompliance with statutory requirements provides the exclusive procedure and remedy for violations of the Act. We said: "We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program." Id., at 420.