Humenansky v. Regents of the University of Minnesota: Questioning Congressional Intent and Authority to Abrogate Eleventh Amendment Immunity with the ADEA

I. INTRODUCTION The Eleventh Amendment provides that "[t]he 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."1 Although the Supreme Court has expanded the scope of Eleventh Amendment immunity far beyond the boundaries of the amendment's actual text,2 state immunity from suits brought by private citizens in federal court is not absolute. One limitation to Eleventh Amendment immunity arises from the power of Congress to enforce equal protection rights.3 Congress may abrogate the states' immunity through legislation.4 To do so, however, it must (1) provide within the language of the statute an "unmistakably clear" statement of its intent to revoke state immunity to claims arising under that legislation, and (2) properly enact the immunity-abrogating statute pursuant to its authority to enforce the Fourteenth Amendment.5 Seven federal circuits have concluded that Congress properly manifested its intent to abrogate the states' Eleventh Amendment immunity when it amended the Age Discrimination in Employment Act ("ADEA" or "Age Act")6 to include the states within the definition of potentially liable employers.7 Conversely, a minority of circuits have held that the language of the Age Act does not contain an effective expression of congressional intent.8 In Humenansky v. Regents of the University of Minnesota, for example, the Eighth Circuit held that the ADEA fails to abrogate the Eleventh Amendment in part because the statute does not contain a plain statement of intent in any single section within the text, nor a direct reference to the Eleventh Amendment or sovereign immunity. The circuit split over whether Congress properly manifested its intent to abrogate state immunity is a product of the courts' diverging interpretations of the "unmistakably clear" requirement referred to above and originally set forth in Atascadero State Hospital v. Scanlon.10 This Note will attempt to clarify the Atascadero standard for expressing congressional intent by analyzing the Humenansky decision. Part II will review the history of the Eleventh Amendment, noting several landmark cases that have expanded or restricted the scope of the amendment during the last two centuries. Part II will also provide a brief introduction to the ADEA. Part III will summarize the facts of the Humenansky case and the court's conclusions. Part IV will analyze the Humenansky decision as it relates to the intent requirement for Eleventh Amendment abrogation. By examining the language of the ADEA in light of several statutes that have previously been held by the Supreme Court to possess sufficient or insufficient manifestations of congressional intent, this section will provide a framework for analyzing statutory language that purports to deprive the states of their immunity. This part will also demonstrate that, in light of this multi-statute comparison, the ADEA does in fact possess a sufficiently clear expression of intent to abrogate the states' Eleventh Amendment immunity to ADEA suits. Section B of Part IV will demonstrate that the ADEA also meets the second prong of the Eleventh Amendment abrogation test-it was enacted pursuant to the Fourteenth Amendment.ll Finally, Part V will conclude that the Supreme Court, if faced with the issue, should reject the Humenansky court's position on both the authority and intent issues and hold that the ADEA does effectively abrogate the states' Eleventh Amendment immunity. II. BACKGROUND A. Evolution of Eleventh Amendment Immunity 1. Inception of the Eleventh Amendment The Eleventh Amendment was enacted in response to the 1793 Supreme Court decision, Chisholm u. Georgia. 12 In Chisholm, a South Carolina citizen, acting as executor for a deceased South Carolina citizen, sued the State of Georgia for the value of military supplies which the deceased had sold to the State. …