Supreme Court Reaffirms State Sovereignty
Federalism & Separation of Powers Practice Group Newsletter - Volume 1, Issue 1, Fall 1996
December 1, 1996Thomas F. Gede
The most significant decision involving federalism that was handed down during the October 1995 Term--indeed, during the last several Terms--was the Court's landmark ruling in Seminole Tribe of Florida v. State of Florida, 116 S. Ct. 1114 (1996). In Seminole, the Court held that, in light of the "background principle" of sovereign immunity that underlay the Eleventh Amendment, Congress has no power under the Commerce Clauses of Article I of the Constitution to subject the States to citizen suits in federal court without their consent. The decision may have far reaching effects, potentially invalidating a host of laws that permits citizens to sue States in federal court over such varied matters as environmental clean-ups, claims arising in bankruptcy proceedings, and fair labor standards. The decision has generally been applauded by conservatives, and it unquestionably promotes the sort of substantive policies that federalists advocate. But is the method of decisionmaking reflected in Seminole faithful to the principles of originalism and textualism that federalists have also strongly championed? Or it is an exercise in conservative judicial activism that disregards the text in favor of judicially imposed substantive values? These issues are explored in the following lively exchange between California Assistant Attorney General Thomas Gede and Cardozo Law School Professor John Duffy.
It is not in the power of individuals to call any State into court. The only operation [the proposed federal jurisdiction] can have, is that, if a State should wish to bring a suit against a citizen, it must be brought before the federal courts. [I]f a State should condescend to be a party, this court may take cognizance of it. -- James Madison to the Virginia Convention, 3 Elliot's Debates, 533.
In a major case involving federalism and state sovereignty, the United States Supreme Court ruled on March 27, 1996, that the Eleventh Amendment to the U.S. Constitution prevents Congress from authorizing suits against States by Indian Tribes to enforce legislation enacted under the Indian Commerce Clause. In Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the Court affirmed that a suit brought by the Seminole Tribe against Florida violated the State's sovereign immunity from suit in federal court without its consent. Significantly, in reaching its decision, the Court overruled Pennsylvania v. Union Gas, 491 U.S. 1 (1989), which had held that Congress could subject the States to suits by citizens in federal court under the Interstate Commerce Clause. Congress, according to the Seminole Court, cannot abrogate this state sovereign immunity when it is acting under the Indian or Interstate Commerce Clauses or any power given to Congress in Article I of the Constitution. This decision is of greater consequence for its restoration of the balance of power between the federal and state governments than for any particular effect on Indian Tribes or on tribal-state relations. Indeed, the decision will clearly affect the justiciability of citizen claims against States in such diverse matters as bankruptcy, federal child support enforcement law, the Endangered Species Act, the Americans with Disabilities Act, and the Religious Freedom Restoration Act. Seen in the context of New York v. United States, 112 S. Ct. 2408 (1992), and United States v. Lopez, 115 S. Ct. 1624 (1995), Seminole further demonstrates the Court's understanding of States as sovereigns in the Federal Union.
In Seminole, the Court examined the provision of the federal Indian Gaming Regulatory Act of 1988 (IGRA), 25 U.S.C. §§2701-2711, that allows a federally recognized Indian Tribe to sue a State in federal court on a claim that the State failed to negotiate in good faith for a Tribal-State Compact governing the conduct of significant gaming activities (games other than bingo) that are permitted in the State. 25 U.S.C. §2710(d)(7). Generally, under IGRA, a State that is found to have negotiated in bad faith may be ordered to conclude a compact, and if it fails to do that, it may be ordered to submit to a federal court-appointed mediator. 25 U.S.C. §2710(d)(7)(B)(iii)-(iv). If a mediator's selection of a compact is not approved by a State, the mediator refers the matter to the Secretary of Interior, who then may prescribe regulations for the gaming. Id. §2710(d)(7)(B)(v)-(vii).
In Seminole, the Tribe sued Florida, claiming that the State had breached this duty to negotiate in good faith by refusing to include in the compact certain gambling devices, such as slot machines, that otherwise violated state criminal laws. Among other issues, Florida raised the Eleventh Amendment as a jurisdictional defense. This defense had been raised at various times from 1991 to 1995 in comparable federal lawsuits against the States of Wisconsin, South Dakota, Alabama, North Carolina, Michigan, Oklahoma, Kansas, New Mexico, Texas, Washington, Montana and Idaho. However, in only one decision did a federal appellate court uphold the Eleventh Amendment as a bar to a lawsuit under IGRA--the Eleventh Circuit Court of Appeals in Seminole Tribe, consolidated with Poarch Band of Creek Indians v. Alabama. The Eleventh Circuit held that Congress did not have the power to abrogate state sovereign immunity under Indian Commerce Clause, distinguishing Union Gas which found such a power in the Interstate Commerce Clause. The Supreme Court granted Seminole Tribe's petition for certiorari in the Eleventh Circuit case, and thirty-one States supported Florida as amicus curiae in the Supreme Court.
On March 27, 1996, the Court issued the 31-page majority opinion, authored by Chief Justice William Rehnquist, joined by Justices O'Connor, Scalia, Kennedy and Thomas, accompanied by a 26-page dissent by Justice Stevens, and a 92-page dissent by Justice Souter, joined by Justices Ginsburg and Breyer. The majority concluded that the Eleventh Amendment bars Congress from authorizing suits by Indian Tribes against States by legislation enacted pursuant to the Indian Commerce Clause. The Court noted that, while the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, the Court had held for more than a century that the Amendment reflects a deeper sovereignty that says States are not amenable to a suit by an individual without the State's consent. 116 S. Ct. at 1131. The question in Seminole was whether Congress had the power under Article I to abrogate that immunity.
The Seminole Court noted that it previously had found authority to abrogate state immunity under only two provisions of the Constitution: (1) section 5 of the Fourteenth Amendment, which empowered Congress to enforce, by appropriate legislation, that amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456 (1976); and (2) the Interstate Commerce Clause, Art. I, §8, cl. 3, see Pennsylvania v. Union Gas, 491 U.S. at 19-20 (holding that Congress' power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages"). See Seminole, 116 S. Ct. at 1125. While Florida urged the Court to hold that the Indian Commerce Clause should not be construed to give Congress the same authority, inasmuch as Congress' power was already complete in that area, the Seminole Court rejected the argument. It reasoned that because Congress exercises more authority at the expense of the States under the Indian Commerce Clause, Congress would, if anything, have a greater power to abrogate state immunity, assuming such a power existed at all under Article I. 116 S. Ct. at 1126. The Seminole Court took the next step urged by Florida and the amici States, and reconsidered the validity of the plurality decision in Union Gas altogether. The Court did not feel constrained by stare decisis, described as a "principle of policy," and not an "inexorable command," and noted that Justice Brennan's opinion received only the support of three other Justices (Marshall, Blackmun and Stevens, JJ.) and that Justice White wrote separately to express his disagreement with the plurality's rationale. Additionally, Union Gas had created confusion in the lower courts; the decision, according to Chief Justice Rehnquist, was of "questionable precedential value." 116 S. Ct. at 1127. Significantly, the Court found that Union Gas "deviated sharply" from established federalism jurisprudence and "essentially eviscerated" the decision in Hans v. Louisiana, 134 U.S. 1 (1890). Hans, and the century of jurisprudence following, made clear that federal judicial power does not extend to suits by citizens against a State without the State's permission and that neither the literal sweep of the words of Article III (providing for both diversity and federal question jurisdiction) nor the absence of restrictions in the text of the Eleventh Amendment detracts from that immunity.
Professor Duffy mistakenly suggests that the Seminole Court was wrong in concluding that Union Gas "deviated sharply" from Hans. As the Court noted, Union Gas departed not only from Hans, but from "established federalism jurisprudence." 116 S. Ct. at 1127. Professor Duffy's recitation of court of appeals decisions from 1979 and 1987 hardly convinces one that the Supreme Court's jurisprudence has been anything other than a reaffirmation of Hans—until, of course, the 1989 plurality in Union Gas. The Seminole Court correctly outlines the Court's own decisions, the ones that count, to this effect. 116 S. Ct. at 1127-29. Professor Duffy's arguments derive from Justice Souter's dissent, which, the majority notes, "disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events." 116 S. Ct. at 1129-30. As the majority noted:
The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man . . . . The text dealt in terms only with the problem presented by the decision in Chisholm [v. Georgia, 2 Dall. 419 (1793)] . . . [and] . . . it seems unlikely that much thought was given to the prospect of federal question jurisdiction over the States.
For these reasons, Professor Duffy errs in assuming the text was designed by omission to permit federal question jurisdiction by individuals over the States. No evidence points to that understanding. Indeed, it is precisely because little thought was given to federal question jurisdiction over the States that Madison, in the quotation cited at the beginning of this article, refers only to diversity jurisdiction. As discussed below, the Framers undoubtedly understood federal question jurisdiction would obtain in suits against States only when brought by the United States or by other States. Only in such cases did States, by the plan of the convention, surrender their sovereign immunity.
The Eleventh Amendment states: "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." Undoubtedly, the language of the Amendment appears to track, and therefore limit, only the grant of diversity jurisdiction in Article III, section 2, clause 1 ("The judicial Power shall extend . . . to Controversies between . . . a State and Citizens of another State, . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects"). What remained unresolved for a time was whether the Amendment barred suits against States brought by citizens of the same State and suits brought on other, nondiversity grounds in the same clause of Article III, such as federal-question jurisdiction, see U.S. Const. art. III (jurisdiction "shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties . . ."). The Supreme Court answered this question more than a century ago, in Hans v. Louisiana. There, the Court said the Eleventh Amendment was important not merely for what it said but for what it reflected: "a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away." Union Gas, 491 U.S. at 32 (Scalia, J., dissenting).
The Hans Court reviewed the historical backdrop of the Amendment, noting that it was passed in the wake of the Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793), which allowed a South Carolina citizen to bring an assumpsit action against Georgia in federal court. Hans made clear that the Amendment, proposed within a year of the Chisholm decision and ratified within a year of proposal, not only repudiated the premise of the federal court jurisdiction allowed in Chisholm, but also repudiated the premise that Article III was not limited by the sovereign immunity of the States. Thus, the Court held, the final words of the Amendment, tracking the diversity language of Article III, did not limit the States' sovereign immunity solely to cases involving suits brought by citizens of other States or foreign States, but also to suits brought by citizens of the same State, irrespective of the grounds. The Court in Hans explained:
Can we suppose that, when the 11th Amendment was adopted, it was understood to be left open for citizens of a State to sue their own State in the federal courts, whilst the idea of suits by citizens of other States, or of foreign states, was indignantly repelled? Hans, 134 U.S. at 15.
In fact, the Hans Court noted, 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." Id. Justice Iredell, in his dissent in Chisholm, extensively outlined an understanding of Anglo-American common law throughout the centuries to this effect. 2 Dall. at 437-49. As Hans suggested, it would be absurd on its face to suggest that the Eleventh Amendment would have been adopted by the States if it had included a proviso allowing a State to be sued by its own citizens in cases arising under the U.S. Constitution or laws of the United States. Obviously, Article III diversity jurisdiction, by its very nature, did not need to account for suits between States and citizens of the same State. Historically, such disputes would fall into the State's own tribunals; thus, the Eleventh Amendment would have no cause to contemplate same-State suits. Ultimately, Hans recognized that the Eleventh Amendment was emblematic of a broader sovereign immunity understood to be complete at the time of the adoption of the Constitution. As Alexander Hamilton set forth in The Federalist, No. 81:
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. . . .
The Supreme Court has noted that there are but two "surrenders" by States of their sovereign immunity in what Hamilton called the "plan of the convention" or what was "inherent in the constitutional plan," see Monaco v. Mississippi, 292 U.S. 313, 329 (1934): (1) a waiver of immunity from suits by the United States, see United States v. Mississippi, 380 U.S. 128, 140-41 (1965); and (2) a waiver of immunity from suits by other States, see South Dakota v. North Carolina, 192 U.S. 286 (1904). Additionally, in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court made clear that the Eleventh Amendment, and the principle of state sovereign immunity which it reflects, was limited by later Amendments whose substantive provisions were directed at the States, such as the Fourteenth Amendment. Id. at 453. Until 1989, in Union Gas, no decision had discovered a further cession of immunity by the States, inherent in the constitutional plan, based on a provision of the Constitution that preceded the Eleventh Amendment. However, as Justice Scalia noted in his dissent in Union Gas, if the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers. "An interpretation of the original Constitution which permits Congress to eliminate sovereign immunity only if it wants to renders the doctrine a nullity and is therefore unreasonable." Union Gas, 491 U.S. at 42 (Scalia, J., dissenting) (emphasis added).
There are additional strong foundations for the jurisprudence behind Hans v. Louisiana. As Chief Justice Hughes noted in Monaco v. Mississippi, behind the text of Article III and the Eleventh Amendment are "postulates which limit and control" the federal court jurisdiction provided. 292 U.S. at 322. Clearly, for example, controversies must be justiciable; yet the Constitution does not expressly set forth this postulate. Similarly, sovereign immunity is a postulate which precedes the constitutional text and provides the background for the subsequent constitutional considerations. Again, as diversity jurisdiction by its very definition could not contemplate suits between States and citizens of the same State, it was simply unnecessary for the Eleventh Amendment to account for such suits when clarifying that States were not to be made defendants in citizen suits.
Professor Duffy asserts that the relevant quote from Alexander Hamilton's Federalist No. 81 proves that the States did surrender, somewhere and somehow, by the plan of the convention, their sovereign immunity to the whim of the Congress whenever it legislates under the its enumerated powers. He points to the language of the quote that refers to the suits of individuals -- therefore, he argues, the reference to surrender of immunity under plan of the convention cannot refer to suits by the United States or other States, and -- further, therefore, the plan of the convention must account for a surrender of immunity to suits by individuals. Aside from the stretch of logic, Professor Duffy fails to account for the full quote by Hamilton. Hamilton, in addressing the ability of individuals to sue States for damages, continued:
. . . A recurrence to the principles [concerning the alienation of state sovereignty] will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorise suits against states, for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.
Thus, Hamilton made it clear in this passage that the Framers did not intend, by the plan of the convention, to subject States to suit in federal court for damages brought by individuals.
As for federal-question jurisdiction, at the time of the adoption of the Eleventh Amendment, there was no historical understanding that the language of Article III provided for private suits against States under the federal Constitution or laws. Nothing in the Constitution points to such an understanding, any more than one which suggests it permits private claims against the United States without its consent, see United States v. Testan, 424 U.S. 392, 399-402 (1976); U.S. Const., Art. I, §9, cl. 7. Certainly, the entity in the best position to vindicate questions against the States arising under the federal constitution, laws, or treaties in the federal courts is the Federal Government itself -- indeed, States surrendered in the "plan of the convention" their immunity from suits brought by the United States against them.
Hans recognized that the assertion of federal-question jurisdiction in that case arose in part from the Judiciary Act of 1875, but Justice Bradley reflected on Justice Iredell's examination of the earlier Judiciary Act of 1789, and stated that it could not have been the intention, in organizing the federal court system, to create
new and unheard of remedies, by subjecting sovereign states to actions at the suit of individuals . . . . [Instead, the intention was] to invest the federal courts with jurisdiction to hear and determine controversies and cases between the parties designated, that were properly susceptible of litigation in courts. Hans, 134 U.S. at 12 (emphasis added).
Thus, it is the pre-constitutional common law and a sound historical understanding which provides meaning to state sovereign immunity, not a barren reading of Article III and Eleventh Amendment text.
Furthermore, there are profound policy reasons, grounded in the principles of federalism, for upholding state sovereign immunity. "The `constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of `our fundamental liberties.'" Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572 (1985) (Powell, J., dissenting). The two-sovereign balance, consisting of "an indestructible Union, composed of indestructible States," Texas v. White, 7 Wall. 700, 725 (1869), is designed, in part, to frustrate the aggrandizement of power in any one central authority -- the premise being that power is corrupting and the people ought to remain skeptical of enlarging that power, particularly within one government at the expense of the other. While the Supremacy Clause obviously gives the Federal Government the "decided advantage in this delicate balance," Gregory v. Ashcroft, 501 U.S. 452, 460 (1991), the balance requires that States not lose their sovereign attributes, lest all governmental sovereignty shift in the Federal direction. As the Atascadero Court observed: "By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance." 473 U.S. at 242.
Additionally, in Hess v. Port Authority Trans-Hudson Corp., 115 S. Ct. 394 (1994), Justice Ginsburg examined "the Eleventh Amendment's twin reasons for being"--protection of the States' solvency and the States' dignity. Id. at 404-06. Without question, a State's power of the purse--and the taxpayer's treasury -- are threatened by private suits against the State. Id. at 405. Obviously, one of the most important goals of Eleventh Amendment immunity is to shield the States' treasuries. The Seminole Court, however, did not limit state sovereign immunity to cases for damages; yet, the protection of the State's fisc remains an important backdrop principle that gives meaning to the immunity. Of course, the preservation of state sovereign immunity does not injure the ability of citizens to enjoin state action that violates federal law, totally apart from claims for damages or monetary claims. Individuals have the ability to sue individual state officials acting unconstitutionally in order to halt federal law violations, under Ex parte Young, 209 U.S. 123 (1908). Moreover, under the Fourteenth Amendment, Congress may pass laws authorizing citizen suits against States to enforce that Amendment.
Ultimately, the Seminole decision re-affirmed a century of established sovereign immunity jurisprudence, reflecting "a presupposition of our constitutional structure: . . . that the States entered the federal system with their sovereignty intact; [and] that the judicial authority in Article III is limited by this sovereignty." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). In reaffirming state immunity, Seminole serves profoundly to restore a fundamental attribute of state sovereignty and the federal-state balance of power.
*Thomas F. Gede is Special Assistant Attorney General, California Office of Attorney General; President, Federalist Society of Sacramento, 1993-1996. Mr. Gede was counsel of record for the thirty-one amici curiae States supporting Florida in Seminole. The views expressed in this article do not necessarily reflect the views of the Attorney General or the California Department of Justice.
|Blind to Text, Unfaithful to Principle by John F. Duffy|