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 possibility of individuals suing states in federal court. Others argued that it made sense for the federal courts to keep states in check.
"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."
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
After the Civil War, the Supreme Court expanded its interpretation of the Eleventh Amendment to allow citizens to file lawsuits not only against citizens of other states, but the state itself. Expansion as a formal holding occurred in Hans v. Louisiana,1 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 a 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.2
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 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."3 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.4 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,5 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),6 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."7
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 not.8 An in rem admiralty action may be brought, however, if the state is not in possession of the res.9
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."10
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.11 But the remaining five Justices adhered to Hans and in fact stiffened it with a rule of construction quite severe in its effect.12 The Hans interpretation was further solidified with the Court's ruling in Seminole Tribe of Florida v. Florida,13 that Congress lacks the power under Article I to abrogate state immunity under the Eleventh Amendment, and with its ruling in Alden v. Maine14 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,15 the Court in Alden v. Maine16 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 misnomer17 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,18 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 1984.19 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 the Constitution, it could not subsequently be applied in derogation of a State's dignity within our system of federalism.20
One view of the Eleventh 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. It explains the decision in Edelman v. Jordan,21 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."22 But that the bar is not wholly jurisdictional seems established as well.23
Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit24 becomes conceptually difficult, as it is not possible to confer jurisdiction where it is lacking through the consent of the parties.25 And there is jurisdiction under Article III of some suits against states, such as those brought by the United States or by other states.26 Furthermore, Congress is able in at least some instances to legislate away state immunity,27 although it may not enlarge Article III jurisdiction.28 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.29
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.30 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."31
In dealing with questions of governmental immunity from suit, the Court has traditionally treated interchangeably precedents dealing with state immunity and those dealing with Federal Governmental immunity.32 Viewing the Amendment and its radiations into Article III in this way provides a consistent explanation of the consent to suit as a waiver.33 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 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.34
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.35 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.36
Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the federal government.37 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.38
Questions regarding the constitutional dimensions of sovereign immunity have also arisen in the context of interstate sovereign immunity when a private party institutes an action against a state in another state's court. In the now-overturned 1979 decision of Nevada v. Hall, the Court held that while states are free as a matter of comity to accord each other immunity or to respect any established limits on liability, the Constitution does not compel a state to grant another state immunity in its courts.39 In Hall, California residents who were severely injured in a car crash with a Nevada state university employee on official business sued the university and the State of Nevada in California court.40 After considering the scope of sovereign immunity as it existed prior to and in the early days of independence, the doctrine's effect on the framing of the Constitution, and specific aspects of the Constitution that qualify the sovereignty of the several States, such as the Full Faith and Credit Clause,41 the Court concluded that [n]othing in the Federal Constitution authorizes or obligates this Court to frustrate California's policy of full compensation in its courts for injuries on its highways resulting from the negligence of state or non-state actors out of enforced respect for the sovereignty of Nevada.42
Forty years later, the Court overruled Hall in Franchise Tax Board of California v. Hyatt (Franchise Tax Board III), holding that States retain their sovereign immunity from private suits brought in the courts of other States.43 The case involved a tort action by a private party against a California state agency in Nevada's courts.44 The sole question before the Court was whether to overrule Nevada v. Hall, a question over which the Court divided in 2016.45 As the majority in Franchise Tax Board III read the historical record, although interstate sovereign immunity may have existed as a voluntary practice of comity at the time of the founding, the Constitution fundamentally adjust[ed] the States' relationship with each other and curtail[ed] their ability, as sovereigns, to decline to recognize each other's immunity.46 The Court reiterated the view embraced in several of its decisions since Hall that in proposing the Eleventh Amendment in response to Chisholm v. Georgia, Congress acted not to change but to restore the original constitutional design.47 Accordingly, the Court explained, the sovereign immunity of the States . . . neither derives from, nor is limited by, the terms of the Eleventh Amendment.48 Moreover, the Court reasoned, "[n]umerous provisions in the Constitution support the view that interstate sovereign immunity is embe[dded] . . . within the constitutional design."49 Among other provisions, the Court cited Article I insofar as it divests the States of the traditional diplomatic and military tools that foreign sovereigns possess and Article IV's Full Faith and Credit Clause, which requires that state-court judgments be accorded full effect in other States and preclude[s] States from 'adopt[ing] any policy of hostility to the public Acts' of other States.50 Accordingly, because sovereign immunity was inherent in the constitutional design, the Court concluded that the State of California could not be sued in Nevada absent the former state's consent.51
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.52
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 authorize limited subordination of state sovereign immunity in the bankruptcy arena.53 Thus, where a federal law authorized a bankruptcy trustee to recover preferential transfers made to state educational institutions,54 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.55
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.56 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.57 The Court has consistently refused to extend Eleventh Amendment sovereign immunity to counties, cities, or towns,58 even though such political subdivisions exercise a slice of state power.59 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.60 Similarly, entities created pursuant to interstate compacts (and subject 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.61
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.62 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,63 and a general authorization to sue and be sued is ordinarily insufficient to constitute consent.64 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.'65
Thus, in Port Authority Trans-Hudson Corp. v. Feeney,66 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.67
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,68 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.69 Distinguishing Parden as involving a proprietary activity,70 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.71 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.72
A state may waive its immunity by initiating or participating in litigation. In Clark v. Barnard,73 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 whether that official has the authority under state law to make a valid waiver.74 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.75