Do States Have Sovereign Immunity?

The Eleventh Amendment bars the federal courts from taking certain lawsuits against state governments. But does that mean states have sovereign immunity? When the Constitution was written, some feared the implications of individuals suing states in federal court. Others argued that it made sense for the federal courts to keep states in check.

The general rule is that private citizens and groups may not sue their state in federal court due to state sovereign immunity. A state may consent to a private lawsuit in federal court, and Congress may also abrogate a state's sovereign immunity. However, private citizens generally may not sue their state or another state in federal court.

This article describes the concept of state sovereign immunity. It begins with the Eleventh Amendment's text and an explanation of its meaning. It then provides the historical background and different interpretations of state sovereign immunity. Then, it discusses several landmark Supreme Court cases dealing with state sovereign immunity. It concludes by discussing congressional abrogation and state waivers of sovereign immunity.

What the Eleventh Amendment Says

Ratified in 1795, the Eleventh Amendment states the following:

"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."

What the Eleventh Amendment Means

The Eleventh Amendment's plain language does not bar a private citizen from suing their own state in federal court. However, the Supreme Court has consistently held that the amendment bars private citizens from filing lawsuits against a state unless the state consents to the lawsuit. It also bars lawsuits filed by citizens of their own state and citizens from one state suing a different state.

The general rule, therefore, is that the Eleventh Amendment prohibits private citizens from suing a state government in federal court. A state government includes the state itself, as well as state agencies. It also generally bars plaintiffs from filing federal lawsuits against state officials like a governor.

Are there exceptions to the Eleventh Amendment?

There are exceptions to the general rule. With regard to suing a state or one of its agencies, the following exceptions apply:

• If the state consents to the lawsuit, the court can consider the case. In other words, states can waive their sovereign immunity.

• Congress can abrogate a state's sovereign immunity by using its power to enforce the Fourteenth Amendment. "Abrogate" means to abolish via a formal action, like passing a law.

With regard to suing state officers in federal court, the following exceptions apply:

• If the state official consents to the lawsuit, the court can consider the case. Again, state officials can waive their immunity.

• If Congress passes a law or act authorizing the lawsuit, it can go forward.

• If the plaintiff requests prospective injunctive relief, the federal court can adjudicate it. (Ex parte Young (1909)).

• If the state official was willfully negligent or acted outside the scope of their official duties, the official generally does not receive immunity.

Can other government agencies claim sovereign immunity under the Eleventh Amendment?

To receive the protection of sovereign immunity, a state agency must prove "that it is acting as an arm of the state." Courts will analyze state law when determining whether a state agency acts as an arm of the state. The policy behind allowing an agency to claim sovereign immunity is to protect the state treasury in situations where suing the agency would have the same practical effect as suing the state itself.

The Supreme Court has "consistently refused to extend the Eleventh Amendment's" protection to lawsuits against political subdivisions like counties, cities, or towns. While these entities may receive immunity from state law, they cannot rely on the Eleventh Amendment to receive immunity in federal court.

Why grant states sovereign immunity?

There are multiple theories on the Eleventh Amendment's protections regarding state sovereignty. Some of these theories include the following:

• By joining the Union after the Constitution's ratification, states gave up some of their sovereignty. The extent to which they gave up sovereign immunity has been debated since the Constitution's ratification. As the Court noted in Alden v. Maine (1999), "The limited effect of the doctrine in federal courts 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 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."

• The Eleventh Amendment "embodies a state sovereignty principle" that limits the federal government's power. As the Constitution Annotated notes, "federal courts may not act without congressional guidance in subjecting states to suit." It also limits Congress, "which can act to the extent of its granted powers," but "is constrained by judicially created doctrines requiring it to be explicit when it legislates against state immunity."

• As the Constitution Annotated notes, the Eleventh Amendment "merely recognize[s] the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution." That doctrine, as noted above, is that a state is not subject to suit without its consent.

The remainder of this article discusses the development of some of these views. For more information on sovereign immunity generally, see Louis L. Jaffe's article Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).

History of State Sovereign Immunity

Before the American Revolutionaries declared independence on July 4, 1776, the general rule was that no person or group could sue a sovereign government, including the states, without their consent.

The U.S. Constitution's ratification in 1788 theoretically changed the principle of state sovereignty in two significant ways:

• Because the Constitution created a national government, the states were no longer sovereign.

• Article III, Section 2 of the Constitution established the federal court system. It further specified that federal courts had jurisdiction over "Controversies . . . between a State and Citizens of another State" and "all Cases, in Law and Equity, arising under this Constitution," and "the Laws of the United States." These are known as diversity jurisdiction and federal question jurisdiction, respectively.

The issue of state sovereignty was contentious during the constitutional convention in 1787. Not only did the Framers hold heated debates about it, but so did states during the ratification debates.

As legal scholars note, these early debates remain of great importance. In recent years, the Supreme Court's decisions regarding state sovereignty echo some of these debates, especially those from the Virginia ratification convention.

The Supreme Court's decision in Chisholm v. Georgia (1793) was the first time after the Constitution's ratification that the Court decided the issue of state sovereignty. The Court's decision ultimately led to the ratification of the Eleventh Amendment.

Chisholm v. Georgia (1793)

Chisholm involved a South Carolina man, Alexander Chisholm, who sued the state of Georgia over a debt owed to him stemming from the Revolutionary War. He filed the lawsuit in federal court. Georgia argued that it was a sovereign state, making it immune from the lawsuit without its consent. The lower court ruled in the state's favor. Chisholm appealed the case to the U.S. Supreme Court.

The issue for the Court was whether a private citizen of one state could sue another state in federal court. The Court ultimately ruled that Article III's diversity clause abrogated Georgia's sovereign immunity. Due to the abrogation, Chisholm's lawsuit could proceed.

Chisholm held that the states gave up their immunity in diversity cases based on common law or state law causes of action. The Eleventh Amendment reversed the Court's holding in Chisholm.

In 1793, the Supreme Court had five justices. Four ruled in favor of Chisholm, and one wrote a dissenting opinion. Each justice wrote separate ("seriatim") opinions at that time.

In his dissenting opinion, Justice James Iredell spelled out the instances in which federal courts had jurisdiction over cases where a state was a party. He argued that these included the following:

• Civil cases between two or more states

• Civil cases between a state and citizens of another state

• Civil cases between a state and foreign states, citizens, or subjects

Justice Iredell argued that private citizens could not sue a state in federal court. He relied on "long-standing principles ground in the common law" in his determination that states were sovereign and thus immune from lawsuits by their own citizens.

However, Justice Iredell was the only Justice who took this stance. In short, Chisholm held that states had given up their sovereign immunity to lawsuits based on diversity jurisdiction when the states ratified the Constitution.

Response to Chisholm

The day after the Court decided Chisholm, a senator from Massachusetts made a motion to amend the Constitution. Although Congress adjourned before it approved it, the push to pass an amendment endorsing state sovereignty continued.

State legislatures responded as well. The Georgia House of Representatives even passed a bill that would have imposed the death penalty for executing the judgment in Chisholm (the Georgia state senate did not pass the bill).

In 1794, Congress proposed the Eleventh Amendment to the states. In 1795, three-fourths of the states ratified the amendment, and it became the law of the land. Its ratification reversed Chisholm and made Justice Iredell's dissent the law of the land.

As the Supreme Court noted in Alden, Congress did not intend to change the Constitution's design with the Eleventh Amendment. Instead, it passed the law in response to Chisholm and to "restore the original constitutional design." In doing so, the Eleventh Amendment does not create nor limit states' sovereign immunity.

Hans v. Louisiana (1890)

In Hans, the Court held that a private citizen cannot sue their home state in federal court due to the Eleventh Amendment. In doing so, the Court adopted Justice Iredell's dissenting opinion from Chisholm. Hans stands for the proposition that private citizens cannot sue their home state in federal court for alleged violations of federal law or the Constitution (i.e., federal question jurisdiction).

The case involved a Louisiana man who sued the state for an alleged violation of Article I's contracts clause. The Court ruled that the man could not sue the state. The Court wrote that the Framers understood the Eleventh Amendment to mean that private citizens cannot sue a state without the state's consent. Therefore, if a state does not waive its sovereign immunity, a private citizen of that state cannot sue it in federal court.

The Court noted that the Eleventh Amendment's text is silent as to whether a citizen of a state may sue their state under federal question jurisdiction. The Court wrote that if it ruled in favor of the plaintiff, it would create an "anomalous result." Specifically, it would have created a rule in which citizens could sue their own state in federal courts while at the same time barring citizens of State A from suing State B (as the Eleventh Amendment prohibits).

Finally, the Court noted Justice Iredell's dissent in Chisholm was correct. The Court wrote, "[t]he 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."

As the Constitution Annotated notes, the Hans decision "reflected the determination that the decision [in Chisholm] was wrong and that federal jurisdiction did not extend to making defendants of unwilling states."

The Court noted that Chief Justice John Marshall's opinion in an earlier case (Cohens v. Virginia (1821)) contained language that was contrary to its decision in Hans. However, because Chief Justice Marshall's language was dictum, the Court held that it "ought not to outweigh the important considerations referred to which lead to a different conclusion."

Modern Interpretation of State Sovereign Immunity

The Court's decision in Hans remains the modern interpretation of state sovereign immunity. However, the issue of state sovereignty has remained a fiercely debated topic throughout American history.

In the late 1990s, the Supreme Court had several opportunities to revisit its jurisprudence regarding state sovereign immunity. These cases were usually close decisions, often with five Justices joining the majority opinion and four dissenting Justices.

The dissents often argued that the Court wrongly decided Hans and that it should overrule the case. Specifically, the Justices often argued that the Eleventh Amendment only bars cases brought under diversity jurisdiction as opposed to federal question jurisdiction.

Relevant cases include:

• Atascadero State Hosp. v. Scanlon (1985) (dissenting)

• Welch v. Texas Dep't of Highways & Pub. Transp. (1987) (dissenting)

• Pennsylvania v. Union Gas Co. (1989) (Justice Stevens concurring).

However, the Hans decision remains good law. This section describes some of the Court's cases regarding state sovereign immunity. Other relevant opinions not discussed below include the following:

• Patsy v. Florida Board of Regents (1982)

• Florida Dep't of State v. Treasure Salvors (1982)

• Pennhurst State School & Hosp. v. Halderman (1984)

• Union Gas Co. (1989) (Justice Scalia concurring in part and dissenting in part)

• Hoffman v. Connecticut Dep't of Income Maintenance (1989) (plurality opinion of Justice White and concurring opinions of Justices O'Connor and Scalia)

• Federal Maritime Commission v. South Carolina State Ports Authority (2002)

The following opinions represent landmark decisions regarding state sovereignty. They show the development of modern state sovereignty principles and shed additional light on their historical background.

Ex Parte Young (1909)

In Ex parte Young, the Court allowed a railroad to sue a state official. Specifically, the railroad sought an injunction to prevent the official from enforcing a regulation that violated the Fourteenth Amendment.

Today, the Court's decision in Ex parte Young serves as a foundation for a constitutional cause of action against state officers. It is an exception to the general doctrine of state sovereign immunity. The case allows plaintiffs seeking prospective relief, like an injunction, to sue state officials.

Ex Parte New York (1921)

In Ex parte New York, the Court held that states are immune to lawsuits based on admiralty jurisdiction. In other words, the Court relied on Hans to conclude that private citizens generally may not rely on admiralty jurisdiction to sue a state in federal court without the state's consent.

Writing for the majority, Justice Mahlon Pitney wrote the following about the Eleventh Amendment:

"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."

The rule applies to a state's own citizens as well as citizens of other states. It also applies despite the Eleventh Amendment's reference to "any suit in law or equity."

Edelman v. Jordan (1974)

In Edelman v. Jordan (1974), the Court ruled that a state can raise an Eleventh Amendment defense during an appeal, even if it did not raise it at the trial court level. In this respect, the Court ruled that the Eleventh Amendment acts as a jurisdictional bar, and courts must always consider a jurisdictional defense.

The plaintiff, John Jordan, brought a class action lawsuit against Illinois state officials regarding unpaid benefits. The class alleged that officials wrongfully withheld benefits from the class when they failed to pay out welfare benefits from the Aid to the Aged, Blind, or Disabled (AABD) program in a timely manner. The class sought positive injunctive relief to require the state officials to pay them the money owed.

At the trial court level, the federal judge issued a permanent injunction that, among other things, required the officials to release and remit benefits it wrongfully withheld. The Court of Appeals affirmed the release and remittance of benefits.

The Supreme Court held that the Eleventh Amendment prohibited the part of the district court's order that required the officials to release and remit AABD benefits. Specifically, the Court held that because the state did not consent to the lawsuit, the class could not sue it for the unpaid benefits. It also held that a federal court cannot order a state to pay back funds it held in violation of the constitution.

One of the issues the Court considered was whether the state could rely on the Eleventh Amendment as a jurisdictional bar. The state raised the issue for the first time on appeal. Typically, courts will not consider any argument that a party fails to argue at the trial court level.

The Court held that the state could rely on the Eleventh Amendment because it related to a court's jurisdiction. In other words, because the state argued that the Eleventh Amendment barred the federal court from considering the case or issuing an order, it was proper for the Court to consider the argument.

The Court also distinguished Edelman from Ex parte Young. In Ex parte Young, the Court ordered the Minnesota Attorney General to conform his conduct to comply with the Fourteenth Amendment. In Edelman, the district court ordered the state officials to pay back funds.

The difference between the cases was conduct versus the release of public funds. The named official, Edelman, would not have to pay the money himself. Instead, the state would have to pay the money. If the plaintiffs prevailed, the award would resemble a "monetary award against the State itself." In essence, it would be an award for damages against Illinois.

The Court held that public aid recipients like the plaintiffs may only seek prospective injunctive relief. Therefore, they could not seek retroactive injunctive relief, which included the release of the withheld funds from the state's funds, in federal court.

Ultimately, the Court held that the district court's award of the benefits violated the Eleventh Amendment. Because the Social Security Act did not authorize a citizen to sue a state, Congress has not abrogated Illinois's sovereign immunity. Therefore, the Eleventh Amendment barred the district court's award of retroactive benefits.

In his dissent, Justice Marshall wrote that a federal law (42 U.S.C. § 1983) that allowed citizens to sue state officials for civil rights violations had abrogated state sovereign immunity.

Seminole Tribe of Florida v. Florida (1996)

The Court reaffirmed Hans in its decision in Seminole Tribe of Florida v. Florida. There, the Court's majority concluded Congress could not abrogate state sovereign immunity. Specifically, the 5-4 majority held that the Eleventh Amendment prohibits Congress from allowing Indian tribes to file lawsuits "against States to enforce legislation enacted pursuant to the Commerce Clause."

The Court noted that, up to that point, Congress could abrogate state sovereign immunity in two ways:

• Through the Fourteenth Amendment (Fitzpatrick v. Bitzer (1976)), and

• When Congress regulates commerce via the interstate commerce clause. (Union Gas).

The Court overruled its decision in Union Gas. It held that states have immunity from lawsuits brought in federal court and that Congress could not abrogate that immunity through the commerce clause. In doing so, it reaffirmed that every state has sovereign immunity, and private parties cannot sue them without their consent.

Additionally, the Court held that the Court's decision in Ex parte Young did not allow the Seminole Tribe to sue Florida's governor because the federal law at issue specifically prohibited such lawsuits.

Alden v. Maine (1999)

In Alden (1999), the Court held that the Eleventh Amendment bars lawsuits against states in state and federal courts. Specifically, the Court held that a state can rely on the Eleventh Amendment to assert state sovereign immunity in its own courts, and Congress does not have the power under Article I to abrogate that immunity.

The Court reviewed the historical background of state sovereignty. The majority wrote that "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."

Similarly, the Constitution Annotated notes that Alden "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."

The case answered the question left unanswered by the Seminole case and a 1973 case about whether "federal statutory rights could be enforced in state courts." (Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare (1973)). As the Constitution Annotated notes, the holding in Alden "effectively limited the application of significant portions of federal law to state governments."

Exceptions to State Sovereign Immunity

States do not have absolute immunity from private citizens' lawsuits. Sometimes, private citizens may file civil cases against a state. As noted above, states can waive their sovereign immunity. Additionally, Congress may sometimes abrogate sovereign immunity via its enforcement of the Fourteenth Amendment.

Moreover, sometimes, the Court does not view a case as being against a state. For example, the Court generally allows people to enjoin state officials. In addition, bankruptcy and some admiralty cases are allowed.

Congressional Abrogation

The Fourteenth Amendment, ratified after the Civil War, allows Congress to pass and enforce legislation that regulates state actions. When Congress passes such legislation, "it may subject states to suit by individuals" to implement it.

In Fitzpatrick (1976), the Supreme Court held that Congress can pass legislation abrogating a state's sovereign immunity when it uses its power to enforce the Fourteenth Amendment. There, the Court wrote that "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."

As the Court noted in Seminole, Congress must "unequivocally express[] its intent to abrogate the immunity." Additionally, Congress must act within the powers enumerated in Article I, Section 8 to validly abrogate state sovereign immunity.

Waiver

A state can waive its sovereign immunity and allow a private citizen to sue it in federal court. The state must expressly waive its sovereign immunity through clear language in a statute or constitutional provision. However, the Court has held a state may also waive its immunity if there is an "overwhelming implication from the text as [will] leave no room for any other reasonable construction."

The Constitution Annotated notes that a state "does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts." The Court has held that the state must intend "to subject itself to suit in federal court" for a waiver to be valid. Therefore, just because a state waives its immunity from lawsuits in its state courts does not mean it waives its Eleventh Amendment immunity against federal lawsuits.