Aside from suits against States by the United States and by other States, there are permissible suits by individuals against States upon federal constitutional and statutory grounds and indeed upon grounds expressly covered by the Eleventh Amendment in somewhat fewer circumstances.
Consent to Suit and Waiver .--The immunity of a State from suit is a privilege which it may waive at its pleasure. It may do so by a law specifically consenting to suit in the federal courts. 57 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, 58 and a general authorization ''to sue and be sued'' is ordinarily insufficient to constitute consent. 59 ''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 inten tion to subject itself to suit in federal court.''' 60 In this case, 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, since 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. 61 While the Court in a few cases has found a waiver by implication, the current vitality of these cases is questionable. Thus, in Parden v. Terminal Railway, 62 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, that had been enacted some 20 years previously, the State had effectively accepted the imposition of the Act and consented to suit. 63 Distinguishing Parden as involving a proprietary activity, the Court subsequently 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. 64 This aspect of Parden has now been overruled, a plurality of the Court emphasizing that congressional abrogation of immunity must be express and unmistakable. 65
Similarly, the State may waive its immunity by initiating or participating in litigation. In Clark v. Barnard, 66 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, because of the question of the ability of the individual to act under state law to make a valid waiver, with the result that the State may at any point in litigation raise a claim of immunity. 67
With respect to governmental entities that derive their authority from the State, but are not the State, the Court closely examines state law to determine what the nature of the entity is, whether it is an arm of the State or whether it is to be treated like a municipal corporation or other political subdivision. An arm of the State has immunity: ''agencies exercising state power have been permitted to invoke the 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 Municipal corporations, though they partake under state law of the State's immunity, do not have immunity in federal court and the States may not confer it. 69 Entities created through interstate compacts (subject to congressional approval) generally also are subject to suit. 70
Congressional Withdrawal of Immunity .--The Constitution delegates to Congress power to legislate to affect the States in some permissible ways. At least in some instances when Congress does so, it may subject the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state powers and which expressly provide for congressional implementing legislation. 71 Thus, ''the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.'' 72 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to Congress in the body of the Constitution might not contain a similar power to authorize suits against the States. 73 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' judgment will promote compliance. 74 The principal judicial brake on this power to abrogate state immunity has been application of a clear statement rule requiring that congressional intent to subject States to suit must be clearly expressed. 75
In the 1989 case of Pennsylvania v. Union Gas Co., 76 the Court--temporarily at least--ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I 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, 77 but only as an alternative holding, and a later case had set forth a more restrictive rule. 78 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' 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 denied each of these strands of the argument, and, while recogninizing the Fourteenth Amendment abrogation power, would have held that none existed under Article I. Pennsylvania v. Union Gas lasted less than seven years, the Court overruling it in Seminole Tribe of Florida v. Florida. Supp.3 Chief Justice Rehnquist, writing for a 5-4 majority, concluded that there is ''no principled distinction in favor of the States to be drawn between the Indian Commerce Clause [at issue in Seminole Tribe] and the Interstate Commerce Clause [relied upon in Union Gas].'' Supp.4 In the majority's view, Union Gas had deviated from a line of cases tracing back to Hans v. Louisiana Supp.5 that viewed the Eleventh Amendment as implementing the ''fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.'' Supp.6 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.'' Supp.7 Section 5 of the Fourteenth Amendment, of course, is another matter. Fitzpatrick v. Bitzer, Supp.8 ''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. Supp.9
At the same time as these developments, however, a different majority secured a victory in circumscribing the manner in which Congress could express its decision to abrogate state immunity. Henceforth, and even with respect to statutes that were enacted prior to promulgation of the 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. 79 No legislative history will suffice at all. 80 Indeed, a plurality is of the apparent view that only if Congress refers specifically to state sovereign immunity and the Eleventh Amendment will its language be unmistakably clear. 81 Thus, 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.'' 82 The Court also construes adversely language Congress chose to reach the issue of state immunity while refusing to look at the legislative history which elaborates that language. 83 The result is that Congress has begun to utilize the ''magic words'' the Court appears to insist on. 84
It should be noted that, even if the Court reverses itself and holds that Congress lacks power to abrogate state immunity in federal courts under its commerce and other Article I powers, Congress is not barred by the Eleventh Amendment, nor apparently by any other constitutional provision, from providing authority for suits in state courts to implement federal statutory rights, thus doing away for those purposes with common law sovereign immunity of the states. 85
Although acknowledging that the Eleventh Amendment was not an issue because the Sec. 1983 suit had been pursued in state court, nonetheless the Court applied its strict rule of construction, requiring ''unmistakable clarity'' by Congress in order to subject States to suit, in holding that States and state officials sued in their official capacity could not be made defendants in Sec. 1983 actions in state courts. 86 While the Court is willing to recognize exceptions to the clear statement rule when the issue involves subjection of states to suit in state courts, the Court will normally opt for ''symmetry'' that treats the states' liability or immunity the same in both state and federal courts. 87
[Footnote 58] 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).
[Footnote 59] 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).
[Footnote 64] 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, id. at 415 U.S., 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.
[Footnote 65] 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.
[Footnote 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).
[Footnote 69] Lincoln County v. Luning, 133 U.S. 529 (1890); Chicot County v. Sherwood, 148 U.S. 529 (1893); Workman v. City of New York, 179 U.S. 552 (1900); Moor v. County of Alameda, 411 U.S. 693 (1973); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Notice that in National League of Cities v. Usery, 426 U.S. 833 (1976), the Court extended the state immunity from regulation in that case to political subdivisions as well.
[Footnote 71] 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' Sec. 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); Dellmuth v. Muth, 491 U.S. 223, 227 (1989).
[Footnote 73] Id. at 456 (under Fourteenth Amendment, Congress may ''provide for private suits against States or state officials which are constitutionally impermissible in other contexts.'')
[Footnote 74] 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 Sec. 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).
[Footnote 75] Even prior to the recent tightening of the rule to require clear expression in the statutory language itself (see n.79 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. Sec. 1983, Congress had not intended to include States within 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.
[Footnote 76] 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.
[Footnote 77] Parden v. Terminal Railway, 377 U.S. 184, 190 -92 (1964). See also Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 283 , 284, 285-86 (1973).
[Footnote 3 (1996 Supplement)] 116 S. Ct. 1114 (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).
[Footnote 4 (1996 Supplement)] 116 S. Ct. at 1127.
[Footnote 5 (1996 Supplement)] 134 U.S. 1 (1890).
[Footnote 6 (1996 Supplement)] 116 S. Ct. at 1127-28 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984).
[Footnote 7 (1996 Supplement)] Id. at 1131-32. 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 suitsbased on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state soverign 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.'' 116 S. Ct. at1153. 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 1173.
[Footnote 8 (1996 Supplement)] 427 U.S. 445 (1976).
[Footnote 9 (1996 Supplement)] 116 S. Ct. at 1128.
[Footnote 81] Justice Scalia does not hold to this view. Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (concurring). And see his statutory analysis in Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (concurring in part and dissenting in part). Justice White, for the plurality, denied this rigidity, id. at 56 n.7 (concurring); Justice Kennedy for the Court in Dellmuth, supra, 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.''
[Footnote 84] Thus, following Atascadero, in 1986 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. No. 99-506, Sec. 1003, 100 Stat. 1845 (1986), 42 U.S.C. Sec. 2000d-7. Following Dellmuth, which involved a fact situation occurring prior to the 1986 amendments, Congress overruled it anyway. Pub. L. No. 101-476, Sec. 103, 104 Stat. 1106 (1990), 20 U.S.C. Sec. 1403. See also the Copyright Remedy Clarification Act, Pub. L. No. 101-553, Sec. 2, 104 Stat. 2749 (1990), 17 U.S.C. Sec. 511 (making States and state officials liable in damages for copyright violations).
[Footnote 85] The point was noted and reserved in Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973), while Justice Marshall argued that this was plainly the case. Id. at 298 (concurring). Suits under Sec. 1983, for example, may be brought in state courts, Maine v. Thiboutot, 448 U.S. 1 (1980), and state immunities are inapplicable. Id. at 9 n.7; Maher v. Gagne, 448 U.S. 122, 130 n.12 (1980). Inasmuch as state courts are ordinarily obligated to enforce federal law, cf. Testa v. Katt, 330 U.S. 386 (1960), state courts are presumably required to hear Sec. 1983 and other claims, but the Court has expressly reserved the issue. Martinez v. California, 444 U.S. 277, 283 n.7 (1980).
[Footnote 87] Hilton v. South Carolina Pub. Rys. Comm'n, 112 S. Ct. 560, 564-66 (1991) (interest in ''symmetry'' is outweighed by stare decisis, the FELA action being controlled by Parden v. Terminal Ry.