ELEVENTH AMENDMENT

SUITS AGAINST STATES

CONTENTS

Page

State Sovereign Immunity ........................................................................................................ 1781

Purpose and Early Interpretation ..................................................................................... 1781

Expansion of the Immunity of the States ................................................................. 1785

The Nature of the States’ Immunity ................................................................................ 1789

Suits Against States ........................................................................................................... 1792

Consent to Suit and Waiver ....................................................................................... 1794

Congressional Withdrawal of Immunity ................................................................... 1796

Suits Against State Officials .............................................................................................. 1800

Tort Actions Against State Officials ........................................................................... 1809

1779

SUITS AGAINST STATES

ELEVENTH AMENDMENT

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.

STATE SOVEREIGN IMMUNITY

Purpose and Early Interpretation

Though Eleventh Amendment jurisprudence can appear esoteric and abstruse and the decisions under it inconsistent, the Amendment remains a vital element of federal jurisdiction that “go[es] to

the very heart of [the] federal system and affect[s] the allocation of

power between the United States and the several states.” 1 The limit

on state accountability in federal courts embodied through the Amendment might seem a discrete, straightforward adjustment of our federal structure precipitated by early case law, but discerning the implications of this embodiment continues to occasion heated dispute.

In accepting a suit against a state by a citizen of another state

in 1793,2 the Supreme Court provoked such anger in Georgia and

such anxiety in other states that, at the first meeting of Congress

following the decision, the Eleventh Amendment was proposed by

an overwhelming vote of both Houses and ratified with, what was

for that day, “vehement speed.” 3 Chisholm had been brought under

that part of the jurisdictional provision of Article III that authorized cognizance of “controversies . . . between a State and Citizens of another State.” At the time of the ratification debates, opponents of the proposed Constitution had objected to the subjection of

a state to suits in federal courts and had been met with conflicting

responses—on the one hand, an admission that the accusation was

true and that it was entirely proper so to provide, and, on the other

hand, that the accusation was false and the clause applied only when

1 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 at 286 (4th ed. 1983).

2 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).

3 The phrase is Justice Frankfurter’s, from Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), a federal sovereign immunity

case. The amendment was proposed on March 4, 1794, when it passed the House;

ratification occurred on February 7, 1795, when the twelfth state acted, there then

being fifteen states in the Union.

1781
a state was the party plaintiff.4 So matters stood when Congress,

in enacting the Judiciary Act of 1789, without recorded controversy

gave the Supreme Court original jurisdiction of suits between states

and citizens of other states.5 Chisholm v. Georgia was brought under this jurisdictional provision to recover under a contract for supplies executed with the state during the Revolution. Four of the five

Justices agreed that a state could be sued under this Article III jurisdictional provision and that under section 13 of the Act the Supreme Court properly had original jurisdiction.6

The Amendment proposed by Congress and ratified by the states

was directed specifically toward overturning the result in Chisholm

and preventing suits against states by citizens of other states or by

citizens or subjects of foreign jurisdictions. It did not, as other possible versions of the Amendment would have done, altogether bar

suits against states in the federal courts.7 That is, it barred suits

against states based on the status of the party plaintiff and did not

address the instance of suits based on the nature of the subject matter.8

The early decisions seemed to reflect this understanding of the

Amendment, although the point was not necessary to the decisions

and thus the language is dictum.9 In Cohens v. Virginia,

10 Chief

4 The Convention adopted this provision largely as it came from the Committee

on Detail, without recorded debate. 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 423–25 (rev. ed. 1937). In the Virginia ratifying convention, George Mason, who had refused to sign the proposed Constitution, objected to making states

subject to suit, 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION

OF THE FEDERAL CONSTITUTION 526–27 (1836), but both Madison and John Marshall (the

latter had not been a delegate at Philadelphia) denied states could be made party

defendants, id. at 533, 555–56, while Randolph (who had been a delegate, as well as

a member of the Committee on Detail) granted that states could be and ought to be

subject to suit. Id. at 573. James Wilson, a delegate and member of the Committee

on Detail, seemed to say in the Pennsylvania ratifying convention that states would

be subject to suit. 2 id. at 491. See Hamilton, in THE FEDERALIST No. 81 (Modern Library ed. 1937), also denying state suability. See Fletcher,supra at 1045–53 (discussing sources and citing other discussions).

5 Ch. 20, § 13, 1 Stat. 80 (1789). See also Fletcher,supra, at 1053–54. For a thorough consideration of passage of the Act itself, see J. GOEBEL, HISTORY OF THE SUPREME

COURT OF THE UNITED STATES: VOL. 1, ANTECEDENTS AND BEGINNINGS TO 1801 457–508 (1971).

6 Goebel, supra, at 726–34; Fletcher,supra, at 1054–58.

7 Fletcher, supra, at 1058–63; Goebel, supra, at 736.

8 Party status is one part of the Article III grant of jurisdiction, as in diversity

of citizenship of the parties; subject matter jurisdiction is the other part, as in federal question or admiralty jurisdiction.

9 One square holding, however, was that of Justice Washington, on Circuit, in

United States v. Bright, 24 Fed. Cas. 1232 (C.C.D. Pa. 1809) (No. 14,647), that the

Eleventh Amendment’s reference to “any suit in law or equity” excluded admiralty

cases, so that states were subject to suits in admiralty. This understanding, see Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828); 3 J. STORY, COMMENTARIES OF THE CONSTITUTION OF THE UNITED STATES 560–61 (1833), did not receive a holding

of the Court during this period, see Georgia v. Madrazo, supra; United States v. Pe1782 AMENDMENT 11—SUITS AGAINST STATES
Justice Marshall ruled for the Court that the prosecution of a writ

of error to review a judgment of a state court alleged to be in violation of the Constitution or laws of the United States did not commence or prosecute a suit against the state but was simply a continuation of one commenced by the state, and thus could be brought

under § 25 of the Judiciary Act of 1789.11 But, in the course of the

opinion, the Chief Justice attributed adoption of the Eleventh Amendment not to objections to subjecting states to suits per se but to

well-founded concerns about creditors being able to maintain suits

in federal courts for payment,12 and stated his view that the Eleventh Amendment did not bar suits against the states under federal

ters, 9 U.S. (5 Cr.) 115 (1809); Ex parte Madrazo, 32 U.S. (7 Pet.) 627 (1833), and

was held to be in error in Ex parte New York (No. 1), 256 U.S. 490 (1921).

10 19 U.S. (6 Wheat.) 264 (1821).

11 1 Stat. 73, 85.

12 “It is a part of our history that, at the adoption of the constitution, all the

states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits

were instituted; and the court maintained its jurisdiction. The alarm was general;

and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed

to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of

the court still extends to these cases: and in these, a state may still be sued. We

must ascribe the amendment, then, to some other cause than the dignity of a state.

There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors

to any considerable amount, and there was reason to retain the jurisdiction of the

court in those cases, because it might be essential to the preservation of peace. The

amendment, therefore, extended to suits commenced or prosecuted by individuals,

but not to those brought by states.” 19 U.S. at 406–07.

AMENDMENT 11—SUITS AGAINST STATES 1783
question jurisdiction 13 and did not in any case reach suits against

a state by its own citizens.14

In Osborn v. Bank of the United States,

15 the Court, again through

Chief Justice Marshall, held that the Bank of the United States 16

could sue the Treasurer of Ohio, over Eleventh Amendment objections, because the plaintiff sought relief against a state officer rather

than against the state itself. This ruling embodied two principles,

one of which has survived and one of which the Marshall Court

itself soon abandoned. The latter holding was that a suit is not one

against a state unless the state is a named party of record.17 The

former holding, the primary rationale through which the strictures

of the Amendment are escaped, is that a state official possesses no

official capacity when acting illegally and consequently can derive

no protection from an unconstitutional statute of a state.18

13 “The powers of the Union, on the great subjects of war, peace and commerce,

and on many others, are in themselves limitations of the sovereignty of the states;

but in addition to these, the sovereignty of the states is surrendered, in many instances, where the surrender can only operate to the benefit of the people, and where,

perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government. One of

the instruments by which this duty may be peaceably performed, is the judicial department. It is authorized to decide all cases of every description, arising under the

constitution or laws of the United States. From this general grant of jurisdiction, no

exception is made of those cases in which a state may be a party. . . . [A]re we at

liberty to insert in this general grant, an exception of those cases in which a state

may be a party? Will the spirit of the constitution justify this attempt to control its

words? We think it will not. We think a case arising under the constitution or laws

of the United States, is cognizable in the courts of the Union, whoever may be the

parties to that case.” 19 U.S. at 382–83.

14 “If this writ of error be a suit, in the sense of the 11th amendment, it is not a

suit commenced or prosecuted ‘by a citizen of another state, or by a citizen or subject of any foreign state.’ It is not, then, within the amendment, but is governed

entirely by the constitution as originally framed, and we have already seen, that in

its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties.” 19 U.S. at 412.

15 22 U.S. (9 Wheat.) 738 (1824).

16 The Bank of the United States was treated as if it were a private citizen,

rather than as the United States itself, and hence a suit by it was a diversity suit

by a corporation, as if it were a suit by the individual shareholders. Bank of the

United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809).

17 22 U.S. at 850–58. For a reassertion of the Chief Justice’s view of the limited

effect of the Amendment, see id. at 857–58. But compare id. at 849. The holding was

repudiated in Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828), in which

it was conceded that the suit had been brought against the governor solely in his

official capacity and with the design of forcing him to exercise his official powers. It

is now well settled that in determining whether a suit is prosecuted against a state

“the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit.” In re Ayers, 123 U.S. 443, 487 (1887).

18 22 U.S. at 858–59, 868. For the flowering of the principle, see Ex parte Young,

209 U.S. 123 (1908).

1784 AMENDMENT 11—SUITS AGAINST STATES
Expansion of the Immunity of the States.—Until the period

following the Civil War, Chief Justice Marshall’s understanding of

the Amendment generally prevailed. The aftermath of that conflict,

however, presented the Court occasion to consider anew the circumstances and import of the Amendment’s adoption. Following the war,

Congress effectively gave the federal courts general federal question jurisdiction,19 at a time when a large number of states in the

South were defaulting on their revenue bonds in violation of the

Contract Clause of the Constitution.20 As bondholders consequently

sought relief in federal courts, the Supreme Court gradually worked

itself into the position of holding that the Eleventh Amendment, or,

more properly speaking, the principles “of which the Amendment is

but an exemplification,” 21 is a bar not only of suits against a state

by citizens of other states, but also of suits brought by citizens of

that state itself.22

Expansion as a formal holding occurred in Hans v. Louisiana,

23

a suit against the state by a resident of that state brought in federal court under federal question jurisdiction, alleging a violation

of the Contract Clause in the state’s repudiation of its obligation to

pay interest on certain bonds. Admitting that the Amendment on

its face prohibited only the entertaining of a suit against a state by

citizens of another state, or citizens or subjects of a foreign state,

the Court nonetheless thought the literal language was an insufficient basis for decision. Rather, wrote Justice Bradley for the Court,

the Eleventh Amendment was a result of the “shock of surprise

throughout the country” at the Chisholm decision and reflected the

determination that the decision was wrong and that federal jurisdiction did not extend to making defendants of unwilling states.24

Under this view, the amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. The

views of the opponents of subjecting states to suit “were most sensible and just; and [those views] apply equally to the present case

19 Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470. See discussion under “Development of Federal Question Jurisdiction,” supra.

20 See, e.g., Orth, The Eleventh Amendment and the North Carolina State Debt,

59 N.C. L. REV. 747 (1981); Orth, The Fair Fame and Name of Louisiana: The Eleventh Amendment and the End of Reconstruction, 2 TUL. LAW. 2 (1980); Orth, The Virginia State Debt and the Judicial Power of the United States, in AMBIVALENT LEGACY:

A LEGAL HISTORY OF THE SOUTH 106 (D. Bodenhamer & J. Ely eds., 1983).

21 Ex parte New York (No. 1), 256 U.S. 490, 497 (1921).

22 E.g., In re Ayers, 123 U.S. 443 (1887); Hagood v. Southern, 117 U.S. 52 (1886);

The Virginia Coupon Cases, 114 U.S. 269 (1885); Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Louisiana v. Jumel, 107 U.S. 711 (1882). In Antoni

v. Greenhow, 107 U.S. 769, 783 (1883), three concurring Justices propounded the

broader reading of the Amendment that soon prevailed.

23 134 U.S. 1 (1890).

24 134 U.S. at 11.

AMENDMENT 11—SUITS AGAINST STATES 1785
as to that then under discussion. The letter is appealed to now, as

it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this

case as it was in that. It is an attempt to strain the Constitution

and the law to a construction never imagined or dreamed of.” 25 “The

truth is, that the cognizance of suits and actions unknown to the

law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. . . .

The suability of a State without its consent was a thing unknown

to the law.” 26 Thus, although the literal terms of the Amendment

did not so provide, “the manner in which [Chisholm] was received

by the country, the adoption of the Eleventh Amendment, the light

of history and the reason of the thing,” 27 led the Court unanimously to hold that states could not be sued by their own citizens

on grounds arising under the Constitution and laws of the United

States.

Then, in Ex parte New York (No. 1),

28 the Court held that, absent consent to suit, a state was immune to suit in admiralty, the

Eleventh Amendment’s reference to “any suit in law or equity” notwithstanding. “That a State may not be sued without its consent is

a fundamental rule of jurisprudence . . . of which the Amendment

is but an exemplification. . . . It is true the Amendment speaks only

of suits in law or equity; but this is because . . . the Amendment

was the outcome of a purpose to set aside the effect of the decision

of this court in Chisholm v. Georgia . . . from which it naturally

came to pass that the language of the Amendment was particularly

phrased so as to reverse the construction adopted in that case.” 29

Just as Hans v. Louisiana had demonstrated the “impropriety of

construing the Amendment” so as to permit federal question suits

against a state, so “it seems to us equally clear that it cannot with

propriety be construed to leave open a suit against a State in the

admiralty jurisdiction by individuals, whether its own citizens or

25 134 U.S. at 14–15.

26 134 U.S. at 15, 16.

27 134 U.S. at 18. The Court acknowledged that Chief Justice Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382–83, 406–07, 410–12 (1821),

was to the contrary, but observed that the language was unnecessary to the decision and thus dictum, “and though made by one who seldom used words without

due reflection, ought not to outweigh the important considerations referred to which

lead to a different conclusion.” 134 U.S. at 20.

28 256 U.S. 490 (1921).

29 256 U.S. at 497–98.

1786 AMENDMENT 11—SUITS AGAINST STATES
not.” 30 An in rem admiralty action may be brought, however, if the

state is not in possession of the res.

31

And in extending protection against suits brought by foreign governments, the Court made clear the immunity flowed not from the

Eleventh Amendment but from concepts of state sovereign immunity generally. “Manifestly, we cannot . . . assume that the letter of

the Eleventh Amendment exhausts the restrictions upon suits against

non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the . . . postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where

there has been ‘a surrender of this immunity in the plan of the convention.’ The Federalist, No. 81.” 32

In the 1980s, four Justices, led by Justice Brennan, argued that

Hans was incorrectly decided, that the Amendment was intended

only to deny jurisdiction against the states in diversity cases, and

that Hans and its progeny should be overruled.33 But the remaining five Justices adhered to Hans and in fact stiffened it with a

rule of construction quite severe in its effect.34 The Hans interpretation was further solidified with the Court’s ruling in Seminole Tribe

30 256 U.S. at 498. See also Florida Dep’t of State v. Treasure Salvors, 458 U.S.

670 (1982); Welch v. Texas Dep’t of Highways and Transp., 483 U.S. 468 (1987).

31 California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) (application of the

Abandoned Shipwreck Act) (distinguishing Ex parte New York and Treasure Salvors

as involving in rem actions against property actually in possession of the state).

32 Principality of Monaco v. Mississippi, 292 U.S. 313, 322–23 (1934) (footnote

omitted); Breard v. Greene, 523 U.S. 371, 377 (1998) (foreign nation may not contest validity of criminal conviction after state’s failure at time of arrest to comply

with notice requirements of Vienna Convention on Consular Relations). Similarly,

relying on Monaco, the Court held that the Amendment bars suits by Indian tribes

against non-consenting states. Blatchford v. Native Village of Noatak, 501 U.S. 775

(1991).

33 E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985) (dissenting); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987)

(dissenting); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 309 (1990) (concurring). Joining

Justice Brennan were Justices Marshall, Blackmun, and Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring).

34 E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–103 (1984)

(opinion of the Court by Justice Powell); Atascadero State Hosp. v. Scanlon, 473 U.S.

234, 237–40, 243–44 n.3 (1985) (opinion of the Court by Justice Powell); Welch v.

Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–74, 478–95 (1987) (plurality opinion of Justice Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989)

(Justice Scalia concurring in part and dissenting in part); Dellmuth v. Muth, 491

U.S. 223, 227–32 (opinion of the Court by Justice Kennedy); Hoffman v. Connecticut

Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion of Justice

White); id. at 105 (concurring opinions of Justices O’Connor and Scalia); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of the Court by

Justice O’Connor).

AMENDMENT 11—SUITS AGAINST STATES 1787
of Florida v. Florida,

35 that Congress lacks the power under Article

I to abrogate state immunity under the Eleventh Amendment, and

with its ruling in Alden v. Maine 36 that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits

against states in state courts as well as federal.

Having previously reserved the question of whether federal statutory rights could be enforced in state courts,37 the Court in Alden v.

Maine 38 held that states could also assert Eleventh Amendment “sovereign immunity” in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts,

was a “misnomer” 39 as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent “compelling evidence” that the states had surrendered such by the ratification of the Constitution. Although this

immunity is subject to the same limitations as apply in federal courts,

the Court’s decision effectively limited the application of significant

portions of federal law to state governments. Both Seminole Tribe

and Alden were also 5–4 decisions with the four dissenting Justices maintaining that Hans was wrongly decided.

This now-institutionalized 5–4 split continued with Federal Maritime Commission v. South Carolina State Ports Authority,

40 which

held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. The operator of a cruise ship devoted

to gambling had been denied entry to the Port of Charleston, and

subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984.41 Justice Breyer,

writing for the four dissenting justices, emphasized the executive

(as opposed to judicial nature) of such agency adjudications, and

pointed out that the ultimate enforcement of such proceedings in

federal court was exercised by a federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while

admitting to a “relatively barren historical record,” presumed that

when a proceeding was “unheard of” at the time of the founding of

35 517 U.S. 44 (1996).

36 527 U.S. 706 (1999).

37 Employees of the Dep’t of Public Health and Welfare v. Department of Public

Health and Welfare, 411 U.S. 279, 287 (1973).

38 527 U.S. 706 (1999).

39 527 U.S. at 713.

40 535 U.S. 743 (2002). Justice Breyer’s dissenting opinion describes a need for

“continued dissent” from the majority’s sovereign immunity holdings. 535 U.S. at

788.

41 46 U.S.C. §§ 40101 et seq.

1788 AMENDMENT 11—SUITS AGAINST STATES
the Constitution, it could not subsequently be applied in derogation of a “State’s dignity” within our system of federalism.42

The Nature of the States’ Immunity

A great deal of the difficulty in interpreting and applying the

Eleventh Amendment stems from the fact that the Court has not

been clear, or at least has not been consistent, with respect to what

the Amendment really does and how it relates to the other parts of

the Constitution. One view of the Amendment, set out above in the

discussion of Hans v. Louisiana, Ex parte New York, and Principality of Monaco, is that Chisholm was erroneously decided and that

the Amendment’s effect, its express language notwithstanding, was

to restore the “original understanding” that Article III’s grants of

federal court jurisdiction did not extend to suits against the states.

That view finds present day expression.43 It explains the decision

in Edelman v. Jordan,

44 in which the Court held that a state could

properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. “[I]t has been

well settled . . . that the Eleventh Amendment defense sufficiently

partakes of the nature of a jurisdictional bar so that it need not be

raised in the trial court.” 45 But that the bar is not wholly jurisdictional seems established as well.46

Moreover, if under Article III there is no jurisdiction of suits

against states, the settled principle that states may consent to suit 47

becomes conceptually difficult, as it is not possible to confer jurisdiction where it is lacking through the consent of the parties.48 And

there is jurisdiction under Article III of some suits against states,

42 535 U.S. at 755, 760.

43 E.g., Employees of the Dep’t of Public Health and Welfare v. Department of

Public Health and Welfare, 411 U.S. 279, 291–92 (1973) (Justice Marshall concurring); Nevada v. Hall, 440 U.S. 410, 420–21 (1979); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982) (Justice Powell dissenting); Seminole Tribe of Florida

v. Florida, 517 U.S. 44, 64 (1996).

44 415 U.S. 651 (1974).

45 415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945), where the issue was whether state officials

who had voluntarily appeared in federal court had authority under state law to waive

the state’s immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393,

396 n.2 (1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977),

with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional issue on its own motion.

46 See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in

which the Court bypassed the Eleventh Amendment issue, which had been brought

to its attention, because of the interest of the parties in having the question resolved on the merits. See id. at 520 (Justice Powell dissenting).

47 Clark v. Barnard, 108 U.S. 436 (1883).

48 E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982)

(dissenting) (no jurisdiction under Article III of suits against unconsenting states).

AMENDMENT 11—SUITS AGAINST STATES 1789
such as those brought by the United States or by other states.49

Furthermore, Congress is able in at least some instances to legislate away state immunity,50 although it may not enlarge Article III

jurisdiction.51 The Court has declared that “the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art.

III,” but almost in the same breath has acknowledged that “[a] sovereign’s immunity may be waived.” 52

Another explanation of the Eleventh Amendment is that it merely

recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: a state was not subject to suit without its consent.53 This view also has support in modern case law: “the States’ immunity from suit is a fundamental aspect

of the sovereignty which the States enjoyed before the ratification

of the Constitution, and which they retain today . . . .” 54 The Court

in dealing with questions of governmental immunity from suit has

traditionally treated interchangeably precedents dealing with state

immunity and those dealing with Federal Governmental immunity.55 Viewing the Amendment and its radiations into Article III

in this way provides a consistent explanation of the consent to suit

as a waiver.56 The limited effect of the doctrine in this context in

federal court arises from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a

sovereign in its own courts or the courts of another sovereign. But

upon entering the Union the states surrendered their sovereignty

49 See, e.g., the Court’s express rejection of the Eleventh Amendment defense in

these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904).

50 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas

Co., 491 U.S. 1 (1989).

51 The principal citation is, of course, Marbury v. Madison, 5 U.S. (1 Cr.) 137

(1803).

52 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984).

53 As Justice Holmes explained, the doctrine is based “on the logical and practical ground that there can be no legal right as against the authority that makes the

law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).

Of course, when a state is sued in federal court pursuant to federal law, the Federal

Government, not the defendant state, is “the authority that makes the law” creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154

(1996) (Justice Souter dissenting). On the sovereign immunity of the United States,

see supra pp. 746–48. For the history and jurisprudence, see Jaffe, Suits Against

Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1 (1963).

54 Alden v. Maine, 527 U.S. 706, 713 (1999).

55 See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild,

161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642–

43, 645 (1911).

56 A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S.

584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S.

506, 514 (1940).

1790 AMENDMENT 11—SUITS AGAINST STATES
to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but

that is more than their coequal.57

Outside the area of federal court jurisdiction, Nevada v. Hall,

58

perfectly illustrates the difficulty. This case arose when a California resident sued a Nevada state agency in a California court because one of the agency’s employees negligently injured him in an

automobile accident in California. Although it recognized that the

rule during the framing of the Constitution was that a state could

not be sued without its consent in the courts of another sovereign,

the Court discerned no evidence in the federal constitutional structure, in the specific language, or in the intention of the Framers,

that would impose a general, federal constitutional constraint upon

the action of a state in authorizing suit in its own courts against

another state. The Court did imply that in some cases a “substantial threat to our constitutional system of cooperative federalism”

might arise and occasion a different result, but this was not such a

case.59

Within the area of federal court jurisdiction, the issue becomes

the extent to which the states upon entering the Union gave up

their immunity to suit in federal court. Chisholm held, and enactment of the Eleventh Amendment reversed the holding, that the

states had given up their immunity to suit in diversity cases based

on common law or state law causes of action; Hans v. Louisiana

and subsequent cases held that the Amendment in effect codified

an understanding of broader immunity to suits based on federal causes

of action.60 Other cases have held that the states did give up their

immunity to suits by the United States or by other states and that

subjection to suit continues.61

57 See Fletcher,supra.

58 440 U.S. 410 (1979).

59 440 U.S. at 424 n.24. The Court looked to the Full Faith and Credit Clause

as a possible constitutional limitation. The dissent would have found implicit constitutional assurance of state immunity as an essential component of federalism. Id.

at 427 (Justice Blackmun), 432 (Justice Rehnquist). In Franchise Tax Board v. Hyatt,

the Court was equally divided on the question of whether to overrule Hall, signaling that Hall’s continued viability may be a subject of future debate at the Supreme

Court. Franchise Tax Bd. of Cal. v. Hyatt, 578 U.S. ___, No. 14–1175, slip op. at 1

(2016).

60 For a while only Justice Brennan advocated this view, Parden v. Terminal

Ry., 377 U.S. 184 (1964); Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in

time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 247 (1985) (Justice Brennan, joined by Justices Marshall, Blackmun, and

Stevens, dissenting).

61 E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may seek

AMENDMENT 11—SUITS AGAINST STATES 1791
Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal

Government.62 In this respect, the federal courts may not act without congressional guidance in subjecting states to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially created doctrines requiring it to be explicit

when it legislates against state immunity.63

Suits Against States

Despite the apparent limitations of the Eleventh Amendment,

individuals may, under certain circumstances, bring constitutional

and statutory cases against states. In some of these cases, the state’s

sovereign immunity has either been waived by the state or abrogated by Congress. In other cases, the Eleventh Amendment does

not apply because the procedural posture is such that the Court

does not view them as being against a state. As discussed below,

this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where the res, or property in dispute, is in fact the legal target of a dispute.64

The application of this last exception to the bankruptcy area

has become less relevant, because even when a bankruptcy case is

not focused on a particular res, the Court has held that a state’s

sovereign immunity is not infringed by being subject to an order of

a bankruptcy court. “The history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both

proposed and enacted under its auspices immediately following ratification of the Constitution demonstrate that it was intended not

just as a grant of legislative authority to Congress, but also to audamages from another state, including damages to its citizens, provided it shows

that the state has an independent interest in the proceeding).

62 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S.

332, 337 (1979).

63 See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ

among themselves as to the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). As noted in the previous section, later cases stiffened the rule of construction. The parallelism of congressional power to regulate

and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of

Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279

(1973), the Court strictly construed congressional provision of suits as not reaching

states, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law.

64 See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446–48 (2004)

(exercise of bankruptcy court’s in rem jurisdiction over a debtor’s estate to discharge

a debt owed to a state does not infringe the state’s sovereignty); California v. Deep

Sea Research, Inc., 523 U.S. 491, 507–08 (1998) (despite state claims over shipwrecked vessel, the Eleventh Amendment does not bar federal court in rem admiralty jurisdiction where the res is not in the possession of the sovereign).

1792 AMENDMENT 11—SUITS AGAINST STATES
thorize limited subordination of state sovereign immunity in the bankruptcy arena.” 65 Thus, where a federal law authorized a bankruptcy trustee to recover “preferential transfers” made to state

educational institutions,66 the court held that the sovereign immunity of the state was not infringed despite the fact that the issue

was “ancillary” to a bankruptcy court’s in rem jurisdiction.67

Because Eleventh Amendment sovereign immunity inheres in

states and not their subdivision or establishments, a state agency

that wishes to claim state sovereign immunity must establish that

it is acting as an arm of the state: “agencies exercising state power

have been permitted to invoke the [Eleventh] Amendment in order

to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the

State itself.” 68 In evaluating such a claim, the Court will examine

state law to determine the nature of the entity, and whether to treat

it as an arm of the state.69 The Court has consistently refused to

extend Eleventh Amendment sovereign immunity to counties, cities, or towns,70 even though such political subdivisions exercise a

“slice of state power.” 71 Even when such entities enjoy immunity

from suit under state law, they do not have Eleventh Amendment

immunity in federal court and the states may not confer it.72 Similarly, entities created pursuant to interstate compacts (and subject

65 Central Virginia Community College v. Katz, 546 U.S. 356, 362–63 (2006).

66 A “preferential transfer” was defined as the transfer of a property interest

from an insolvent debtor to a creditor, which occurred on or within 90 days before

the filing of a bankruptcy petition, and which exceeds what the creditor would have

been entitled to receive under such bankruptcy filing. 11 U.S.C. § 547(b).

67 546 U.S. at 373.

68 Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01

(1979), citing Edelman v. Jordan, 415 U.S. 651 (1974), and Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945). The fact that a state agency can be indemnified for the costs of litigation does not divest the agency of its Eleventh Amendment

immunity. Regents of the University of California v. Doe, 519 U.S. 425 (1997).

69 See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)

(local school district not an arm of the state based on (1) its designation in state

law as a political subdivision, (2) the degree of supervision by the state board of

education, (3) the level of funding received from the state, and (4) the districts’ empowerment to generate their own revenue through the issuance of bonds or levying

taxes.

70 Northern Insurance Company of New York v. Chatham County, 547 U.S. 189,

193 (2006) (counties have neither Eleventh Amendment immunity nor residual common law immunity). See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977);

Moor v. County of Alameda, 411 U.S. 693 (1973); Workman v. City of New York, 179

U.S. 552 (1900); Lincoln County v. Luning, 133 U.S. 529 (1890). In contrast to their

treatment under the Eleventh Amendment, the Court has found that state immunity from federal regulation under the Tenth Amendment extends to political subdivisions as well. See Printz v. United States, 521 U.S. 898 (1997).

71 Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01

(1979) (quoting earlier cases).

72 Chicot County v. Sherwood, 148 U.S. 529 (1893).

AMENDMENT 11—SUITS AGAINST STATES 1793
to congressional approval) are not immune from suit, absent a showing that the entity was structured so as to take advantage of the

state’s constitutional protections.73

Consent to Suit and Waiver.—The immunity of a state from

suit is a privilege which it may waive at its pleasure. A state may

expressly consent to being sued in federal court by statute.74 But

the conclusion that there has been consent or a waiver is not lightly

inferred; the Court strictly construes statutes alleged to consent to

suit. Thus, a state may waive its immunity in its own courts without consenting to suit in federal court,75 and a general authorization “to sue and be sued” is ordinarily insufficient to constitute consent.76 “The Court will give effect to a State’s waiver of Eleventh

Amendment immunity ‘only where stated by the most express language or by such overwhelming implication from the text as [will]

leave no room for any other reasonable construction.’ A State does

not waive its Eleventh Amendment immunity by consenting to suit

only in its own courts, and ‘[t]hus, in order for a state statute or

constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court.’ ” 77

Thus, in Port Authority Trans-Hudson Corp. v. Feeney,

78 an expansive consent “to suits, actions, or proceedings of any form or nature at law, in equity or otherwise” was deemed too “ambiguous and

general” to waive immunity in federal court, because it might be

interpreted to reflect only a state’s consent to suit in its own courts.

But, when combined with language specifying that consent was conditioned on venue being laid “within a county or judicial district,

established by one of said States or by the United States, and situated wholly or partially within the Port of New York District,” waiver

was effective.79

73 Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979);

Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959).

74 Gunter v. Atlantic Coast Line R.R., 200 U.S. 273, 284 (1906).

75 Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213

U.S. 151, 172 (1909); Graves v. Texas Co., 298 U.S. 393, 403–04 (1936); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).

76 Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Ford Motor Co.

v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State

Tax Comm’n, 327 U.S. 573 (1947); Petty v. Tennessee-Missouri Bridge Comm’n, 359

U.S. 275 (1959); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S.

147 (1981). Compare Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519 n.* (1982)

(Justice White concurring), with id. at 522 and n.5 (Justice Powell dissenting).

77 Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990)

(internal citations omitted; emphasis in original).

78 495 U.S. 299 (1990).

79 495 U.S. at 306–07. But see Atascadero State Hosp. v. Scanlon, 473 U.S. 234,

241 (1985).

1794 AMENDMENT 11—SUITS AGAINST STATES
In a few cases, the Court has found a waiver by implication,

but the vitality of these cases is questionable. In Parden v. Terminal Railway,

80 the Court ruled that employees of a state-owned railroad could sue the state for damages under the Federal Employers’

Liability Act. One of the two primary grounds for finding lack of

immunity was that by taking control of a railroad which was subject to the FELA, enacted some 20 years previously, the state had

effectively accepted the imposition of the Act and consented to suit.81

Distinguishing Parden as involving a proprietary activity,82 the Court

later refused to find any implied consent to suit by states participating in federal spending programs; participation was insufficient,

and only when waiver has been “stated by the most express language or by such overwhelming implications from the text as [will]

leave no room for any other reasonable construction,” will it be found.83

.

Further, even if a state becomes amenable to suit under a statutory condition on accepting federal funds, remedies, especially monetary damages, may be limited, absent express language to the contrary.84

A state may waive its immunity by initiating or participating

in litigation. In Clark v. Barnard,

85 the state had filed a claim for

disputed money deposited in a federal court, and the Court held

that the state could not thereafter complain when the court awarded

the money to another claimant. However, the Court is loath to find

a waiver simply because of the decision of an official or an attorney

representing the state to litigate the merits of a suit, so that a state

may at any point in litigation raise a claim of immunity based on

80 377 U.S. 184 (1964). The alternative but interwoven ground had to do with

Congress’s power to withdraw immunity. See also Petty v. Tennessee-Missouri Bridge

Comm’n, 359 U.S. 275 (1959).

81 The implied waiver issue aside, Parden subsequently was overruled, a plurality of the Court emphasizing that Congress had failed to abrogate state immunity

unmistakably. Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468

(1987). Justice Powell’s plurality opinion was joined by Chief Justice Rehnquist and

by Justices White and O’Connor. Justice Scalia, concurring, thought Parden should

be overruled because it must be assumed that Congress enacted the FELA and other

statutes with the understanding that Hans v. Louisiana shielded states from immunity. Id. at 495.

82 Edelman v. Jordan, 415 U.S. 651, 671–72 (1974). For the same distinction in

the Tenth Amendment context, see National League of Cities v. Usery, 426 U.S. 833,

854 n.18 (1976).

83 Edelman v. Jordan, 415 U.S. 651 (1974) (quoting id. at 673, Murray v. Wilson

Distilling Co., 213 U.S. 151, 171 (1909)); Florida Dep’t of Health v. Florida Nursing

Home Ass’n, 450 U.S. 147 (1981). Of the four Edelman dissenters, Justices Marshall and Blackmun found waiver through knowing participation, 415 U.S. at 688.

In Florida Dep’t, Justice Stevens noted he would have agreed with them had he

been on the Court at the time but that he would now adhere to Edelman. Id. at

151.

84 Sossamon v. Texas, 563 U.S. ___, No. 08–1438, slip op. (2011).

85 108 U.S. 436 (1883).

AMENDMENT 11—SUITS AGAINST STATES 1795
whether that official has the authority under state law to make a

valid waiver.86 However, this argument is only available when the

state is brought into federal court involuntarily. If a state voluntarily agrees to removal of a state action to federal court, the Court

has held it may not then invoke a defense of sovereign immunity

and thereby gain an unfair tactical advantage.87

Congressional Withdrawal of Immunity.—The Constitution

grants Congress power to regulate state action by legislation. At

least in some instances when Congress does so, it may subject the

states themselves to suit by individuals to implement the legislation. The clearest example arises from the Civil War Amendments,

which directly restrict state powers and expressly authorize Congress to enforce these restrictions through appropriate legislation.88 Thus, “the Eleventh Amendment and the principle of state

sovereignty which it embodies . . . are necessarily limited, by the

enforcement provisions of § 5 of the Fourteenth Amendment.” 89 The

power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations

of the amendments, but extending as well to measures that in Congress’s judgment will promote compliance. 90 The principal judicial

brake on this power to abrogate state immunity in legislation enforcing the Civil War Amendments is the rule requiring that congressional intent to subject states to suit be clearly stated.91

86 Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–467 (1945); Edelman v. Jordan, 415 U.S. 651, 677–678 (1974).

87 Lapides v. Board of Regents, 535 U.S. 613 (2002).

88 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney, 437 U.S. 678 (1978);

City of Rome v. United States, 446 U.S. 156 (1980). More recent cases affirming Congress’s § 5 powers include Pennhurst State School & Hosp. v. Halderman, 465 U.S.

89, 99 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); and Dellmuth

v. Muth, 491 U.S. 223, 227 (1989).

89 Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (under the Fourteenth Amendment, Congress may “provide for private suits against States or state officials which

are constitutionally impermissible in other contexts.”).

90 In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that Congress could

validly authorize imposition of attorneys’ fees on the state following settlement of a

suit based on both constitutional and statutory grounds, even though settlement had

prevented determination that there had been a constitutional violation. Maine v.

Thiboutot, 448 U.S. 1 (1980), held that § 1983 suits could be premised on federal

statutory as well as constitutional grounds. Other cases in which attorneys’ fees were

awarded against states are Hutto v. Finney, 437 U.S. 678 (1978); and New York

Gaslight Club v. Carey, 447 U.S. 54 (1980). See also Frew v. Hawkins, 540 U.S. 431

(2004) (upholding enforcement of consent decree).

91 Even prior to the tightening of the clear statement rule over the past several

decades to require express legislative language (see note and accompanying text, infra),

application of the rule curbed congressional enforcement. Fitzpatrick v. Bitzer, 427

U.S. 445 451–53 (1976); Hutto v. Finney, 437 U.S. 678, 693–98 (1978). Because of

its rule of clear statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held

that in enacting 42 U.S.C. § 1983, Congress had not intended to include states within

1796 AMENDMENT 11—SUITS AGAINST STATES
In the 1989 case of Pennsylvania v. Union Gas Co.,

92 the Court—

temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers (as

opposed to its Fourteenth Amendment powers) may abrogate the

Eleventh Amendment immunity of the states, so long as it does so

with sufficient clarity. Twenty-five years earlier the Court had stated

that same principle,93 but only as an alternative holding, and a later

case had set forth a more restrictive rule.94 The premises of Union

Gas were that by consenting to ratification of the Constitution, with

its Commerce Clause and other clauses empowering Congress and

limiting the states, the states had implicitly authorized Congress

to divest them of immunity, that the Eleventh Amendment was a

restraint upon the courts and not similarly upon Congress, and that

the exercises of Congress’s powers under the Commerce Clause and

other clauses would be incomplete without the ability to authorize

damage actions against the states to enforce congressional enactments. The dissenters disputed each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, would have held that no such power existed under Article

I.

the term “person” for the purpose of subjecting them to suit. The question arose

after Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978), reinterpreted “person” to include municipal corporations. Cf. Alabama v. Pugh, 438 U.S.

781 (1978). The Court has reserved the question whether the Fourteenth Amendment itself, without congressional action, modifies the Eleventh Amendment to permit suits against states, Milliken v. Bradley, 433 U.S. 267, 290 n.23 (1977), but the

result in Milliken, holding that the Governor could be enjoined to pay half the cost

of providing compensatory education for certain schools, which would come from the

state treasury, and in Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition

of damages upon the governor, which would come from the state treasury, is suggestive. But see Mauclet v. Nyquist, 406 F. Supp. 1233 (W.D.N.Y. 1976) (refusing money

damages under the Fourteenth Amendment), appeal dismissed sub nom. Rabinovitch

v. Nyquist, 433 U.S. 901 (1977). The Court declined in Ex parte Young, 209 U.S.

123, 150 (1908), to view the Eleventh Amendment as modified by the Fourteenth.

92 491 U.S. 1 (1989). The plurality opinion of the Court was by Justice Brennan

and was joined by the three other Justices who believed Hans was incorrectly decided. See id. at 23 (Justice Stevens concurring). The fifth vote was provided by Justice White, id. at 45, 55–56 (Justice White concurring), although he believed Hans

was correctly decided and ought to be maintained and although he did not believe

Congress had acted with sufficient clarity in the statutes before the Court to abrogate immunity. Justice Scalia thought the statutes were express enough but that

Congress simply lacked the power. Id. at 29. Chief Justice Rehnquist and Justices

O’Connor and Kennedy joined relevant portions of both opinions finding lack of power

and lack of clarity.

93 Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 283, 284, 285–86 (1973).

94 Edelman v. Jordan, 415 U.S. 651, 672 (1974).

AMENDMENT 11—SUITS AGAINST STATES 1797
Pennsylvania v. Union Gas lasted less than seven years before

the Court overruled it in Seminole Tribe of Florida v. Florida.

95 Chief

Justice Rehnquist, writing for a 5–4 majority, concluded Union Gas

had deviated from a line of cases, tracing back to Hans v. Louisiana,

96 that viewed the Eleventh Amendment as implementing the

“fundamental principle of sovereign immunity [that] limits the grant

of judicial authority in Article III.” 97 Because “the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon

federal jurisdiction.” 98 Subsequent cases have upheld this interpretation.99

Section 5 of the Fourteenth Amendment, of course, is another

matter. Fitzpatrick v. Bitzer,

100 which was “based upon a rationale

wholly inapplicable to the Interstate Commerce Clause, viz., that

the Fourteenth Amendment, adopted well after the adoption of the

Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power

achieved by Article III and the Eleventh Amendment,” remains good

law.101 This ruling has led to a significant number of cases that examined whether a statute that might be applied against non-state

actors under an Article I power, could also, under section 5 of the

Fourteenth Amendment, be applied against the states.102

95 517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory

Act authorizing an Indian tribe to sue a state in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact).

96 134 U.S. 1 (1890).

97 517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465

U.S. 89, 97–98 (1984).

98 517 U.S. at 72–73. Justice Souter’s dissent undertook a lengthy refutation of

the majority’s analysis, asserting that the Eleventh Amendment is best understood,

in keeping with its express language, as barring only suits based on diversity of

citizenship, and as having no application to federal question litigation. Moreover,

Justice Souter contended, the state sovereign immunity that the Court mistakenly

recognized in Hans v. Louisiana was a common law concept that “had no constitutional status and was subject to congressional abrogation.” 517 U.S. at 117. The Constitution made no provision for wholesale adoption of the common law, but, on the

contrary, was premised on the view that common law rules would always be subject

to legislative alteration. This “imperative of legislative control grew directly out of

the Framers’ revolutionary idea of popular sovereignty.” Id. at 160.

99 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666 (1999) (the Trademark Remedy Clarification Act, an amendment to

the Lanham Act, did not validly abrogate state immunity); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (amendment to patent laws abrogating state immunity from infringement suits is invalid);

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (abrogation of state immunity in

the Age Discrimination in Employment Act is invalid).

100 427 U.S. 445 (1976).

101 Seminole Tribe, 517 U.S. at 65–66.

102 See Fourteenth Amendment, Congressional Definition of Fourteenth Amendment Rights, infra.

1798 AMENDMENT 11—SUITS AGAINST STATES
In another line of case, a different majority of the Court focused not so much on the authority Congress used to subject states

to suit as on the language Congress used to overcome immunity.

Henceforth, the Court held in a 1985 decision, and even with respect to statutes that were enacted prior to promulgation of this

judicial rule of construction, “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by

making its intention unmistakably clear in the language of the statute” itself.103 This means that no legislative history will suffice at

all.104

Indeed, at one time a plurality of the Court apparently believed that only if Congress refers specifically to state sovereign

immunity and the Eleventh Amendment will its language be unmistakably clear.105 Thus, the Court held in Atascadero that general language subjecting to suit in federal court “any recipient of

Federal assistance” under the Rehabilitation Act was deemed insufficient to satisfy this test, not because of any question about

whether states are “recipients” within the meaning of the provision but because “given their constitutional role, the states are

not like any other class of recipients of federal aid.” 106 As a result of these rulings, Congress began to use the “magic words”

the Court appeared to insist on.107 Later, however, the Court has

accepted less precise language,108 and in at least one context,

103 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis added).

104 See, particularly, Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (“legislative

history generally will be irrelevant”), and Hoffman v. Connecticut Dep’t of Income

Maintenance, 492 U.S. 96, 103–04 (1989).

105 Justice Kennedy for the Court in Dellmuth, 491 U.S. at 231, expressly noted

that the statute before the Court did not demonstrate abrogation with unmistakably clarity because, inter alia, it “makes no reference whatsoever to either the Eleventh Amendment or the States’ sovereign immunity.” Justice Scalia, one of four concurring Justices, expressed an “understanding” that the Court’s reasoning would allow

for clearly expressed abrogation of immunity “without explicit reference to state sovereign immunity or the Eleventh Amendment.” Id. at 233.

106 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). See also Dellmuth

v. Muth, 491 U.S. 223 (1989).

107 In 1986, following Atascadero, Congress provided that states were not to be

immune under the Eleventh Amendment from suits under several laws barring discrimination by recipients of federal financial assistance. Pub. L. 99–506, § 1003, 100

Stat. 1845 (1986), 42 U.S.C. § 2000d–7. Following Dellmuth, Congress amended the

statute to insert the explicit language. Pub. L. 101–476, § 103, 104 Stat. 1106 (1990),

20 U.S.C. § 1403. See also the Copyright Remedy Clarification Act, Pub. L. 101–553,

§ 2, 104 Stat. 2749 (1990), 17 U.S.C. § 511 (making states and state officials liable

in damages for copyright violations).

108 Kimel v. Florida Board of Regents, 528 U.S. 62, 74–78 (2000). In Kimel, statutory language authorized age discrimination suits “against any employer (including

a public agency),” and a “public agency” was defined to include “the government of a

State or political subdivision thereof.” The Court found this language to be sufficiently clear evidence of intent to abrogate state sovereign immunity. The relevant

AMENDMENT 11—SUITS AGAINST STATES 1799
has eliminated the requirement of specific abrogation language

altogether.109

Even before the decision in Alden v. Maine,

110 when the Court

believed that Eleventh Amendment sovereign immunity did not apply to suits in state courts, the Court applied its rule of strict construction to require “unmistakable clarity” by Congress in order to

subject states to suit.111 Although the Court was willing to recognize exceptions to the clear statement rule when the issue involved

subjection of states to suit in state courts, the Court also suggested

the need for “symmetry” so that states’ liability or immunity would

be the same in both state and federal courts.112

Suits Against State Officials

Courts may open their doors for relief against government wrongs

under the doctrine that sovereign immunity does not prevent a suit

to restrain individual officials, thereby restraining the government

as well.113 The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a

suit against the government, but for the purpose of finding state

action to which the Constitution applies, the official’s conduct is that

of the state.114 The doctrine preceded but is most noteworthily associated with the decision in Ex parte Young,

115 a case that deserves

the overworked adjective, seminal.

Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed

to comply with the law. Plaintiff railroad stockholders brought a fedportion of the opinion was written by Justice O’Connor, and joined by Chief Justice

Rehnquist and Justices Stevens, Scalia, Souter, Ginsberg, Breyer and Stevens. But

see Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002) (federal

supplemental jurisdiction statute which tolls limitations period for state claims during pendency of federal case not applicable to claim dismissed on the basis of Eleventh Amendment immunity).

109 Central Virginia Community College v. Katz, 546 U.S. 356, 363 (2006) (abrogation of state sovereign immunity under the Bankruptcy Clause was effectuated

by the Constitution, so it need not additionally be done by statute); id. at 383 (Justice Thomas dissenting).

110 527 U.S. 706 (1999).

111 Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (holding that states

and state officials sued in their official capacity could not be made defendants in

§ 1983 actions in state courts).

112 Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 206 (1991) (interest in “symmetry” is outweighed by stare decisis, the FELA action being controlled

by Parden v. Terminal Ry.).

113 See, e.g., Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949), where

the majority and dissenting opinions cite both federal and Eleventh Amendment cases

in a suit against a federal official. See also Tindal v. Wesley, 167 U.S. 204, 213 (1897),

applying to the states the federal rule of United States v. Lee, 106 U.S. 196 (1882).

114 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 (4th ed. 1983).

115 209 U.S. 123 (1908).

1800 AMENDMENT 11—SUITS AGAINST STATES
eral action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would

suffer irreparable harm if he were not prevented from acting. An

injunction was granted forbidding Young from acting on the law,

an injunction he violated by bringing an action in state court against

noncomplying railroads; for this action he was adjudged in contempt. If the Supreme Court had held that the injunction was not

permissible, because the suit was one against the state, there would

have been no practicable way for the railroads to attack the statute without placing themselves in great danger. They could have

disobeyed it and alleged its unconstitutionality as a defense in enforcement proceedings, but if they were wrong about the statute’s

validity the penalties would have been devastating.116 On the other

hand, effectuating constitutional rights through an injunction would

not have been possible had the injunction been deemed to be a suit

against the state.

In deciding Young, the Court faced inconsistent lines of cases,

including numerous precedents for permitting suits against state

officers. Chief Justice Marshall had begun the process in Osborn

by holding that suit was barred only when the state was formally

named a party.117 He presently was required to modify that decision and preclude suit when an official, the governor of a state, was

sued in his official capacity,118 but relying on Osborn and reading

Madrazo narrowly, the Court later held in a series of cases that an

official of a state could be sued to prevent him from executing a

state law in conflict with the Constitution or a law of the United

States, and the fact that the officer may be acting on behalf of the

state or in response to a statutory obligation of the state did not

make the suit one against the state.119 Another line of cases began

developing a more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, one that evidenced an

increasing wariness toward affirmatively ordering states to relinquish state-controlled property 120 and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.

121

116 In fact, the statute was eventually held to be constitutional. Minnesota Rate

Cases (Simpson v. Shepard), 230 U.S. 352 (1913).

117 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).

118 Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).

119 Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1875); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston

v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S.

1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames,

169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900).

120 Judicial reluctance to confront government officials over government-held property did not extend in like manner in a federal context, as was evident in United

States v. Lee, the first case in which the sovereign immunity of the United States

AMENDMENT 11—SUITS AGAINST STATES 1801
Two of the leading cases, as were many cases of this period,

were suits attempting to prevent Southern states from defaulting

on bonds.122 In Louisiana v. Jumel,

123 a Louisiana citizen sought to

compel the state treasurer to apply a sinking fund that had been

created under the earlier constitution for the payment of the bonds

after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the

state.124 Then, In re Ayers 125 purported to supply a rationale for

cases on the issuance of mandamus or injunctive relief against state

officers that would have severely curtailed federal judicial power.

Suit against a state officer was not barred when his action, aside

from any official authority claimed as its justification, was a wrong

simply as an individual act, such as a trespass, but if the act of the

officer did not constitute an individual wrong and was something

that only a state, through its officers, could do, the suit was in actuality a suit against the state and was barred.126 That is, the unconstitutional nature of the state statute under which the officer

acted did not itself constitute a private cause of action. For that,

one must be able to point to an independent violation of a common

law right.127

was claimed and rejected. United States v. Lee, 106 U.S. 196 (1882). See Article III,

“Suits Against United States Officials.” However, the Court sustained the suit against

the federal officers by only a 5-to-4 vote, and the dissent presented the arguments

that were soon to inform Eleventh Amendment cases.

121 134 U.S. 1 (1890).

122 See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889, 1968–2003 (1983); Orth, The Interpretation of

the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. ILL.

L. REV. 423.

123 107 U.S. 711 (1882).

124 “The relief asked will require the officers against whom the process is issued

to act contrary to the positive orders of the supreme political power of the State,

whose creatures they are, and to which they are ultimately responsible in law for

what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in

another, and they must raise more money by taxation when the same power has

declared that it shall not be done.” 107 U.S. at 721. See also Christian v. Atlantic &

N.C. R.R., 133 U.S. 233 (1890).

125 123 U.S. 443 (1887).

126 123 U.S. at 500–01, 502.

127 Ayers sought to enjoin state officials from bringing suit under an allegedly

unconstitutional statute purporting to overturn a contract between the state and

the bondholders to receive the bond coupons for tax payments. The Court asserted

that the state’s contracts impliedly contained the state’s immunity from suit, so that

express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, because any violation of the assumed contract was an act of

the state, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505–06. The rationale had

been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769,

783 (1882). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883);

Hagood v. Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22 (1890);

1802 AMENDMENT 11—SUITS AGAINST STATES
Although Ayers was in all relevant points on all fours with

Young,

128 the Young Court held that the injunction had properly issued against the state attorney general, even though the state was

in effect restrained as well. “The act to be enforced is alleged to be

unconstitutional, and, if it be so, the use of the name of the State

to enforce an unconstitutional act to the injury of the complainants

is a proceeding without the authority of and one which does not

affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by

the use of the name of the State to enforce a legislative enactment

which is void because unconstitutional. If the act which the state

Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment 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 subject in his person to the consequences of his individual conduct.” 129 Justice Harlan was the only dissenter, arguing that in law

and fact the suit was one only against the state and that the suit

against the individual was a mere “fiction.” 130

The “fiction” remains a mainstay of our jurisprudence.131 It accounts for a great deal of the litigation brought by individuals to

challenge the carrying out of state policies. Suits against state officers alleging that they are acting pursuant to an unconstitutional

In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896);

Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900).

128 Ayers “would seem to be decisive of the Young litigation.” C. WRIGHT, THE LAW

OF FEDERAL COURTS § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or

that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167

(1908). Similarly, in a later case, the Court continued to distinguish Ayers but on

grounds that did not in fact distinguish it from the case before the Court, in which

it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342

U.S. 299 (1952).

129 Ex parte Young, 209 U.S. 123, 159–60 (1908). The opinion did not address

the issue of how an officer “stripped of his official . . . character” could violate the

Constitution, in that the Constitution restricts only “state action,” but the double

fiction has been expounded numerous times since. Thus, for example, it is well settled

that an action unauthorized by state law is state action for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913).

The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), though

eviscerated by Home Tel. & Tel. was not expressly disavowed until United States v.

Raines, 362 U.S. 17, 25–26 (1960).

130 Ex parte Young, 209 U.S. 123, 173–74 (1908). In the process of limiting application of Young, a Court majority referred to “the Young fiction.” Idaho v. Coeur

d’Alene Tribe, 521 U.S. 261, 281 (1997).

131 E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting

request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep’t of State v. Treasure

Salvors, 458 U.S. 670, 685 (1982).

AMENDMENT 11—SUITS AGAINST STATES 1803
statute are the standard device by which to test the validity of state

legislation in federal courts prior to enforcement and thus interpretation in the state courts.132 Similarly, suits to restrain state officials from taking certain actions in contravention of federal statutes 133 or to compel the undertaking of affirmative obligations imposed

by the Constitution or federal laws 134 are common.

For years, moreover, the accepted rule was that suits prosecuted against state officers in federal courts upon grounds that they

are acting in excess of state statutory authority 135 or that they are

not doing something required by state law 136 are not precluded by

the Eleventh Amendment or its emanations of sovereign immunity,

provided only that there are grounds to obtain federal jurisdiction.137 However, in Pennhurst State School & Hospital v. Halder132 See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913);

Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S.

497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v.

Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971)

(enjoining state welfare officials from denying welfare benefits to otherwise qualified

recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits);

Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon state through order directed to governor and

other officials). On injunctions against governors, see Continental Baking Co. v. Woodring,

286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits

under this doctrine are principles of judicial restraint—constitutional, statutory, and

prudential—discussed under Article III.

133 E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield

Co., 435 U.S. 151 (1978).

134 E.g., Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S.

651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332, 346–49 (1979).

135 E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S.

481 (1908); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1977); Louisville & Nashville R.R. v. Greene,

244 U.S. 522 (1917). Property held by state officials on behalf of the state under

claimed state authority may be recovered in suits against the officials, although the

court may not conclusively resolve the state’s claims against it in such a suit. South

Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins

v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep’t of State v. Treasure

Salvors, 458 U.S. 670 (1982), in which the eight Justices who agreed that the Eleventh Amendment applied divided 4-to-4 over the proper interpretation.

136 E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Atchison, T. &

S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 545

(1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178

(1933); Lee v. Bickell, 292 U.S. 415, 425 (1934).

137 Typically, the plaintiff would be in federal court under diversity jurisdiction,

cf. Martin v. Lankford, 245 U.S. 547, 551 (1918), perhaps under admiralty jurisdiction, Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), or under federal question jurisdiction. Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S.

635 (2002). In the last instance, federal courts are obligated first to consider whether

the issues presented may be decided on state law grounds before reaching federal

constitutional grounds, and thus relief may be afforded on state law grounds solely.

1804 AMENDMENT 11—SUITS AGAINST STATES
man,

138 the Court, five-to-four, held that Young did not permit suits

in federal courts against state officers alleging violations of state

law. In the Court’s view, Young was necessary to promote the supremacy of federal law, a basis that disappears if the violation alleged is of state law. The Court also still adheres to the doctrine,

first pronounced in Madrazo,

139 that some suits against officers are

“really” against the state 140 and are barred by the state’s immunity, such as when the suit involves state property or asks for relief which clearly calls for the exercise of official authority, such as

paying money out of the treasury to remedy past harms. 141

For example, a suit to prevent tax officials from collecting death

taxes arising from the competing claims of two states as being the

last domicile of the decedent foundered upon the conclusion that

there could be no credible claim of violation of the Constitution or

federal law; state law imposed the obligation upon the officials and

“in reality” the action was against the state.142 Suits against state

officials to recover taxes have also been made increasingly difficult

to maintain. Although the Court long ago held that the sovereign

immunity of the state prevented a suit to recover money in the state

treasury,143 it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.144 Beginning, however, with Great Northern Life Ins. Co. v.

Read,

145 the Court has held that this kind of suit cannot be maintained unless the state expressly consents to suits in the federal

Cf. Siler v. Louisville & Nashville R.R., 213 U.S. 175, 193 (1909); Hagans v. Lavine,

415 U.S. 528, 546–47 & n.12 (1974). In a case removed from state court, presence of

a claim barred by the Eleventh Amendment does not destroy jurisdiction over nonbarred claims. Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381 (1998).

138 465 U.S. 89 (1984).

139 Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).

140 E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945).

141 In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent

decree regarding its state Medicaid program, attempted to extend the reasoning of

Pennhurst, arguing that unless an actual violation of federal law had been found by

a court, then such court would be without jurisdiction to enforce such decree. The

Court, in a unanimous opinion, declined to so extend the Eleventh Amendment, noting, among other things, that the principles of federalism were served by giving state

officials the latitude and discretion to enter into enforceable consent decrees. Id. at

442.

142 Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937). See also Old Colony

Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester County remains viable. Cory v.

White, 457 U.S. 85 (1982). The actions were under the Federal Interpleader Act, 49

Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions against officials have

been allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939) (joinder of

state court judge and receiver in interpleader proceeding in which state had no interest and neither judge nor receiver was enjoined by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933).

143 Smith v. Reeves, 178 U.S. 436 (1900).

144 Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912).

145 322 U.S. 47 (1944).

AMENDMENT 11—SUITS AGAINST STATES 1805
courts. In this case, the state statute provided for the payment of

taxes under protest and for suits afterward against state tax collection officials for the recovery of taxes illegally collected, which revenues were required to be kept segregated.146

In Edelman v. Jordan,

147 the Court appeared to begin to lay

down new restrictive interpretations of what the Eleventh Amendment proscribed. The Court announced that a suit “seeking to impose a liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment.” 148 What the Court

actually held, however, was that it was permissible for federal courts

to require state officials to comply in the future with claims payment provisions of the welfare assistance sections of the Social Security Act, but that they were not permitted to hear claims seeking, or issue orders directing, payment of funds found to be wrongfully

withheld.149 Conceding that some of the characteristics of prospective and retroactive relief would be the same in their effects upon

the state treasury, the Court nonetheless believed that retroactive

payments were equivalent to the imposition of liabilities which must

be paid from public funds in the treasury, and that this was barred

by the Eleventh Amendment. The spending of money from the state

treasury by state officials shaping their conduct in accordance with

a prospective-only injunction is “an ancillary effect” which “is a permissible and often an inevitable consequence” of Ex parte Young,

whereas “payment of state funds . . . as a form of compensation” to

those wrongfully denied the funds in the past “is in practical effect

indistinguishable in many aspects from an award of damages against

the State.” 150

146 See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. Tax Comm’n, 327 U.S. 573 (1946). States may confine to their

own courts suits to recover taxes. Smith v. Reeves, 178 U.S. 436 (1900); Murray v.

Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).

147 415 U.S. 651 (1974).

148 415 U.S. at 663.

149 415 U.S. at 667–68. Where the money at issue is not a state’s, but a private

party’s, then the distinction between retroactive and prospective obligations is not

important. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635 (2002),

the Court held that a challenge to a state agency decision regarding a private party’s past and future contractual liabilities does not violate the Eleventh Amendment. Id. at 648. In fact, three judges questioned whether the Eleventh Amendment

is even implicated where there is a challenge to a state’s determination of liability

between private parties. Id. at 649 (Souter, J., concurring).

150 415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming

Edelman, but holding that state officials could be ordered to notify members of the

class that had been denied retroactive relief in that case that they might seek back

benefits by invoking state administrative procedures; the order did not direct the

payment but left it to state discretion to award retroactive relief). But cf. Green v.

Mansour, 474 U.S. 64 (1985). “Notice relief” permitted under Quern v. Jordan is

consistent with the Eleventh Amendment only insofar as it is ancillary to valid pro1806 AMENDMENT 11—SUITS AGAINST STATES
That Edelman in many instances will be a formal restriction

rather than an actual one is illustrated by Milliken v. Bradley,

151

in which state officers were ordered to spend money from the state

treasury in order to finance remedial educational programs to counteract the effects of past school segregation; the decree, the Court

said, “fits squarely within the prospective-compliance exception reaffirmed by Edelman.” 152 Although the payments were a result of

past wrongs, of past constitutional violations, the Court did not view

them as “compensation,” inasmuch as they were not to be paid to

victims of past discrimination but rather used to better conditions

either for them or their successors.153 The Court also applied Edelman in Papasan v. Allain,

154 holding that a claim against a state

for payments representing a continuing obligation to meet trust responsibilities stemming from a 19th century grant of public lands

for benefit of education of the Chickasaw Indian Nation is barred

by the Eleventh Amendment as indistinguishable from an action

for past loss of trust corpus, but that an Equal Protection claim for

present unequal distribution of school land funds is the type of ongoing violation for which the Eleventh Amendment does not bar redress.

In Idaho v. Coeur d’Alene Tribe,

155 the Court further narrowed

Ex parte Young. The implications of the case are difficult to predict,

because of the narrowness of the Court’s holding, the closeness of

the vote (5–4), and the inability of the majority to agree on a rationale. The holding was that the Tribe’s suit against state officials

for a declaratory judgment and injunction to establish the Tribe’s

ownership and control of the submerged lands of Lake Coeur d’Alene

is barred by the Eleventh Amendment. The Tribe’s claim was based

on federal law—Executive Orders issued in the 1870s, prior to Idaho

statehood. The portion of Justice Kennedy’s opinion that represented the opinion of the Court concluded that the Tribe’s “unusual” suit was “the functional equivalent of a quiet title action which

implicates special sovereignty interests.” 156 The case was “unusual” because state ownership of submerged lands traces to the

spective relief designed to prevent ongoing violations of federal law. Thus, where

Congress has changed the AFDC law and the state is complying with the new law,

an order to state officials to notify claimants that past payments may have been

inadequate conflicts with the Eleventh Amendment.

151 433 U.S. 267 (1977).

152 433 U.S. at 289.

153 433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690–91 (1978)

(affirming order to pay attorney’s fees out of state treasury as an “ancillary” order

because of state’s bad faith).

154 478 U.S. 265 (1986).

155 521 U.S. 261 (1997).

156 521 U.S. at 281.

AMENDMENT 11—SUITS AGAINST STATES 1807
Constitution through the “equal footing doctrine,” and because navigable waters “uniquely implicate sovereign interests.” 157 This was

therefore no ordinary property dispute in which the state would retain regulatory control over land regardless of title. Rather, grant

of the “far-reaching and invasive relief” sought by the Tribe “would

diminish, even extinguish, the State’s control over a vast reach of

lands and waters long . . . deemed to be an integral part of its territory.” 158

A separate part of Justice Kennedy’s opinion, joined only by Chief

Justice Rehnquist, advocated more broad scale diminishment of Young.

The two would apply case-by-case balancing, taking into account the

availability of a state court forum to resolve the dispute and the

importance of the federal right at issue. Concurring Justice O’Connor,

joined by Justices Scalia and Thomas, rejected such balancing. Young

was inapplicable, Justice O’Connor explained, because “it simply cannot be said” that a suit to divest the state of all regulatory power

over submerged lands “is not a suit against the State.” 159

Addressing a suit by an independent state agency against state

health officials, the Court, quoting Pennhurst, reiterated “that the

general criterion for determining when a suit is in fact against the

sovereign is the effect of the relief sought.” 160

The agency sought access to records of state-run hospitals in

federal court. Six Justices upheld the effort: The relief sought was

straightforward and prospective, and not a burdensome encroachment on state sovereignty.161

Thus, as with the cases dealing with suits facially against the

states themselves, the Court’s greater attention to state immunity

in the context of suits against state officials has resulted in a mixed

picture, of some new restrictions, of the lessening of others. But a

number of Justices have increasingly resorted to the Eleventh Amend157 521 U.S. at 284.

158 521 U.S. at 282.

159 521 U.S. at 296.

160 Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. ___, No. 09–

529, slip op. at 8 (2011) (quoting Pennhurst State School & Hospital v. Halderman,

465 U.S. at 107). Federal law offered states funding to improve services for the developmentally disabled and mentally ill on condition that, inter alia, the states designate a private or independent state entity to seek remedies for incidents of neglect and abuse. Virginia was one of eight states to establish a state entity to exercise

this authority.

161 In a concurring opinion, Justice Kennedy, joined by Justice Thomas, continued to support a case-by-case balancing analysis. Virginia Office for Protection and

Advocacy v. Stewart, 563 U.S. ___, No. 09–529, slip op. (2011) (Kennedy, J., concurring).

1808 AMENDMENT 11—SUITS AGAINST STATES
ment as a means to reduce federal-state judicial conflict.162 One may,

therefore, expect this to be a continuingly contentious area.

Tort Actions Against State Officials.—In Tindal v. Wesley,

163 the Court adopted the rule of United States v. Lee,164 a tort

suit against federal officials, to permit a tort action against state

officials to recover real property held by them and claimed by the

state and to obtain damages for the period of withholding. The immunity of a state from suit has long been held not to extend to

actions against state officials for damages arising out of willful and

negligent disregard of state laws.165 The reach of the rule is evident in Scheuer v. Rhodes,

166 in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a state

alleging that they deprived plaintiffs of federal rights under color

of state law and seeking damages, when it was clear that plaintiffs

were seeking to impose individual and personal liability on the officials. There was no “executive immunity” from suit, the Court held;

rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular

office and the circumstances existing at the time the challenged action was taken.167

162 See, e.g., Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670, 702 (1982)

(dissenting opinion); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982)

(dissenting opinion). See also Employees of the Dep’t of Public Health and Welfare

v. Department of Public Health and Welfare, 411 U.S. 279 (1973).

163 167 U.S. 204 (1897).

164 106 U.S. 196 (1883).

165 Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547

(1918).

166 416 U.S. 233 (1974).

167 These suits, like suits against local officials and municipal corporations, are

typically brought pursuant to 42 U.S.C. § 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of

federal officials, see Article III, “Suits Against United States Officials,” supra.

AMENDMENT 11—SUITS AGAINST STATES 1809