# Pennsylvania v. Union Gas Company/Concurrence Stevens

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* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stevens Scalia White
Justice STEVENS, concurring.
It is important to emphasize the distinction between our two Eleventh Amendments. There is first the correct and literal interpretation of the plain language of the Eleventh Amendment that is fully explained in Justice BRENNAN's dissenting opinion in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247, 105 S.Ct. 3142, 3149, 87 L.Ed.2d 171 (1985). In addition, there is the defense of sovereign immunity that the Court has added to the text of the Amendment in cases like Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). With respect to the former-the legitimate scope of the Eleventh Amendment limitation on federal judicial power-I do not believe Congress has the power under the Commerce Clause, or under any other provision of the Constitution, to abrogate the States' immunity. A statute cannot amend the Constitution. With respect to the latter-the judicially created doctrine of state immunity even from suits alleging violation of federally protected rights-I agree that Congress has plenary power to subject the States to suit in federal court.
Because Justice BRENNAN's opinion in Atascadero and the works of numerous scholars have exhaustively and conclusively refuted the contention that the Eleventh Amendment embodies a general grant of sovereign immunity to the States, further explication on this point is unnecessary. Suffice it to say that the Eleventh Amendment carefully mirrors the language of the citizen-state and alien-state diversity clauses of Article III and only provides that "[t]he Judicial power of the United States shall not be construed to extend" to these cases. There is absolutely nothing in the text of the Amendment that in any way affects the other grants of "judicial Power" contained in Article III. Plainer language is seldom, if ever, found in constitutional law.
In Hans v. Louisiana, supra, however, the Court departed from the plain language, purpose, and history of the Eleventh Amendment, extending to the States immunity from suits premised on the "arising under" jurisdictional grant of Article III. Later adjustments to this rule, as well as the Court's inability to develop a coherent doctrine of Eleventh Amendment immunity, make clear that this expansion of state immunity is not a matter of Eleventh Amendment law at all, but rather is based on a prudential interest in federal-state comity and a concern for "Our Federalism." The Eleventh Amendment, as does Article III, speaks in terms of "judicial power." The question that must therefore animate the inquiry in any actual Eleventh Amendment case is whether the federal court has power to entertain the suit. In cases in which there is no such power, Congress cannot provide it even through a "clear statement." Many of this Court's decisions, however, purporting to apply the Eleventh Amendment, do not deal with judicial power at all. Instead, the issue of immunity is treated as a question of the proper role of the federal courts in the amalgam of federal-state relations. It is in these cases that congressional abrogation is appropriate.
Several of this Court's decisions make clear that much of our state immunity doctrine has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment. For example, it is well established that a State may waive its immunity, subjecting itself to possible suit in federal court. See Atascadero, 473 U.S., at 238, 105 S.Ct., at 3145; Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184, 186, 84 S.Ct. 1207, 1209, 12 L.Ed.2d 233 (1964); Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 284, 93 S.Ct. 1614, 1617, 36 L.Ed.2d 251 (1973); Clark v. Barnard, 108 U.S. 436, 447-448, 2 S.Ct. 878, 882-883, 27 L.Ed. 780 (1883). Yet, the cases are legion holding that a party may not waive a defect in subject-matter jurisdiction or invoke federal jurisdiction simply by consent. See, e.g., Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377, n. 21, 98 S.Ct. 2396, 2404, n. 21, 57 L.Ed.2d 274 (1978); Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556, 42 L.Ed.2d 532 (1975); California v. LaRue, 409 U.S. 109, 112, n. 3, 93 S.Ct. 390, 393, n. 3, 34 L.Ed.2d 342 (1972); American Fire & Casualty Co. v. Finn, 341 U.S 6, 17-18, and n. 17, 71 S.Ct. 534, 541-42, and n. 17, 95 L.Ed. 702 (1951); Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934); Jackson v. Ashton, 33 U.S. (8 Pet.) 148, 149, 8 L.Ed. 898 (1834). This must be particularly so in cases in which the federal courts are entirely without Article III power to entertain the suit. Our willingness to allow States to waive their immunity thus demonstrates that this immunity is not a product of the limitation of judicial power contained in the Eleventh Amendment.
Another striking example of the application of prudential rather than true jurisdictional-concerns is found in our decision in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). There, the Court inexplicably limited the fiction established in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which permits suits against state officials in their official capacities for ultra vires acts, and concluded that the Young fiction only applies to prospective grants of relief. If Edelman simply involved an application of the limitation on judicial power contained in the Eleventh Amendment, once judicial power was found to exist to award prospective relief (even at some monetary cost to the State, see, e.g., Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977)), it is difficult to understand why that same judicial power would not extend to award other forms of relief. See Fitzpatrick v. Bitzer, 427 U.S. 445, 459, 96 S.Ct. 2666, 2673, 49 L.Ed.2d 614 (1976) (STEVENS, J., concurring in judgment). In Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104-106, 104 S.Ct. 900, 910-911, 79 L.Ed.2d 67 (1984), the Court made explicit what was implicit in Edelman: the Young fiction "rests on the need to promote the vindication of federal rights," while Edelman represents an attempt to "accommodate" this protection to the "competing interest" in "the constitutional immunity of the States." Similarly, in Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985), the Court explained:
"Both prospective and retrospective relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment." (Citations omitted.)
The theme that thus emerges from cases such as Edelman, Pennhurst, and Green is one of balancing of state and federal interests. This sort of balancing, however, like waiver, is antithetical to traditional understandings of Article III subject-matter jurisdiction-either the judicial power extends to a suit brought against a State or it does not. See National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646-655, 69 S.Ct. 1173, 1195-1200, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting). As a result, these cases are better understood as simply invoking the comity and federalism concerns discussed in our abstention cases, see, e.g., Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), although admittedly in a slightly different voice. In my view, federal courts "have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution" and laws, Harris v. Reed, 489 U.S. 255, 267, 109 S.C . 1038, 1045, 103 L.Ed.2d 308 (1989) (STEVENS, J., concurring), and generally should not eschew this responsibility based on some diffuse, instrumental concern for state autonomy. Yet, even if I were convinced otherwise, I would think it readily apparent that congressional abrogation is entirely appropriate. Cf. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). Congress is not superseding a constitutional provision in these cases, but rather is setting aside the Court's assessment of the extent to which the use of constitutionally prescribed federal authority is prudent.
Because Congress has decided that the federal interest in protecting the environment outweighs any countervailing interest in not subjecting States to the possible award of monetary damages in a federal court, and because the "judicial power" of the United States plainly extends to such suits, I join Justice BRENNAN's opinion. Even if a majority of this Court might have reached a different assessment of the proper balance of state and federal interests as an original matter, once Congress has spoken, we may not disregard its express decision to subject the States to liability under federal law.

## Notes

* ↑ See, e.g., Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv.L.Rev. 1342 (1989); Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1 (1988); Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425 (1987); Lee, Sovereign Immunity and the Eleventh Amendment: The Uses of History, 18 Urb.Law. 519 (1986); Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv.L.Rev. 61 (1984); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889 (1983); Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan.L.Rev. 1033 (1983); Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv.L.Rev. 682 (1976).
* ↑ The Eleventh Amendment asserts:
* ↑ This understanding of our state immunity cases explains an additional anomaly. Over the years, this Court has repeatedly exercised Article III power to review state-court judgments in cases involving claims that, under our post-Hans decisions, could not have been brought in federal district court. See, e.g., Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989); Williams v. Vermont, 472 U.S. 14, 105 S.Ct. 2465, 86 L.Ed.2d 11 (1985); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984); Heublein, Inc. v. South Carolina Tax Comm'n, 409 U.S. 275, 93 S.Ct. 483, 34 L.Ed.2d 472 (1972); Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963); Laurens Federal Savings & Loan Assn. v. South Carolina Tax Comm'n, 365 U.S. 517, 81 S.Ct. 719, 5 L.Ed.2d 749 (1961). See also Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140 (1900); Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821). To the extent the Eleventh Amendment is broadly construed to have removed all federal power to adjudicate claims against the States regardless of whether or not the claim is one arising under federal law,
* ↑ To the extent state immunity from suit in federal court is based on a concern for comity, and not on a limitation on Article III power, Congress is just as free to "declare its will" that this presumption come to an end as are States to decide not to accord one another immunity from suit in state court. See Nevada v. Hall, 440 U.S. 410, 425-426, 99 S.Ct. 1182, 1190-91, 59 L.Ed.2d 416 (1979).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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