Toward a Simpler Standard for Abrogating Sovereign Immunity

October 4, 2005

William E. Thro

In recent terms, the Supreme Court has repeatedly addressed issues related to the states’ sovereign immunity.
In particular, the Court has focused on whether Congress,exercising its powers to enforce the Fourteenth Amendment, has validly abrogated the States’ sovereign immunity. Yet, despite the fact that the Court has addressed the issue on multiple occasions, the Court’s analytical framework for determining the validity of abrogation is becoming more confused and uncertain. For example, the Court has declared that sovereign immunity bars employment discrimination claims based on age or disability,but does not bar a claim based on denial of an employment benefit. Similarly, the Court ruled that Congress’ findings of unconstitutional discrimination by the States was insufficient to justify abrogation for some disability discrimination claims,
but that those exact same congressional findings justified abrogation for other disability discrimination claims....

Toward a Simpler Standard for Abrogating Sovereign Immunity