Congressional Control Over State Sovereign Immunity: The Recent Supreme Court Decisions
  Gregory G. Katsas *

On June 23, 1999, the last day of the most recent Supreme Court Term, the Court handed down three major decisions addressing the extent to which Congress can abrogate the sovereign immunity of the states from lawsuits brought by private parties in state or federal court. By the same five-to-four majority in each case, the Court imposed significant restrictions on Congress's power to abrogate state sovereign immunity. Although these decisions do not substantially change the overall balance of power between the federal government and the states, they do continue a recent trend of state victories in federalism cases.

The recent decisions arose in the wake of significant state victories in Seminole Tribe v. Florida, 517 U.S. 44 (1996), and City of Boerne v. Flores, 521 U.S. 507 (1997). In Seminole Tribe, the Court held that Congress cannot, when acting pursuant to its legislative powers under Article I of the Constitution, abrogate the states' Eleventh Amendment immunity from lawsuits in federal court. After Seminole Tribe, the principal abrogation questions now involve Section 5 of the Fourteenth Amendment, which gives Congress the power to "enforce" the Due Process, Takings, and other substantive clauses contained in or incorporated by the Fourteenth Amendment. Although the Court previously had held that Congress can abrogate the Eleventh Amendment when acting pursuant to Section 5, Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), City of Boerne stressed that any exercise of Section 5 enforcement power must be reasonably proportionate to the substantive Fourteenth Amendment violations that Congress seeks to remedy or prevent. Against this backdrop, the Court confronted the question whether Congress can authorize private-party suits against the states in federal court for violations of the Lanham Act or for patent infringement.

In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (No. 98-149), the Court held that Congress cannot authorize such suits for violations of the false-advertising provisions of the Lanham Act. The Court reasoned that the statutory prohibition against false advertising creates no right to exclude others, and thus no "property" right protected by the Fourteenth Amendment. Accordingly, the Court concluded, the provision purporting to abrogate the states' Eleventh Amendment immunity from Lanham Act false-advertising claims was not a valid exercise of Congress's Section 5 enforcement power. More significantly, the Court rejected any "constructive waiver" theory for overriding the states' Eleventh Amendment immunity. In Parden v. Terminal Railroad Co., 377 U.S. 184 (1964), the Court had held that Congress may condition a state's right to engage in specified commercial activity upon its submission to federal-court jurisdiction for claims arising out of that activity, and that the state's decision to engage in the activity would be deemed a constructive "waiver" of its Eleventh Amendment immunity. The Court overruled Parden in College Savings, concluding that such "Parden-style conditions" are not sufficiently voluntary (on the part of the states) to constitute an effective waiver of constitutional rights, but are sufficiently compelled (on the part of Congress) to constitute an impermissible abrogation. In the course of its analysis, the Court broadly held that states do not lose any of their sovereign immunities when acting as market participants in commercial activities.

In a companion case, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (No. 98-531), the Court held that Congress cannot authorize private-party suits against the states in federal court for patent infringement. The Court acknowledged that patents constitute "property" protected by the Due Process Clause of the Fourteenth Amendment. Applying the proportionality analysis required by City of Boerne, however, the Court found scant evidence that states had frequently infringed patents in the past, and even less evidence that states had failed to provide state-law remedies for victims of such infringement. With few relevant deprivations of property, and even fewer deprivations "without due process," the Court concluded that an across-the-board abrogation of the Eleventh Amendment in patent infringement cases constituted a disproportionate, and thus impermissible, exercise of Congress's Section 5 power to "enforce" the Fourteenth Amendment.

The third recent sovereign immunity case, Alden v. Maine (No. 98-436), addressed the question whether Congress can abrogate the states' sovereign immunity from private-party suits in state courts. The Eleventh Amendment by its terms applies only in federal court, and recent decisions had assumed that Congress could therefore abrogate the states' sovereign immunity in state courts. In Alden, however, the Court rejected that view. Relying heavily on historical materials from the founding era, it concluded that the Eleventh Amendment is merely one particular codification of more general principles of state sovereign immunity that are implicit in the structure of the original Constitution itself. Accordingly, the Court held that Congress cannot authorize private-party suits against the states in state courts.

Despite the dissenters' strong rhetoric, these decisions do not effect a substantial shift in power from the federal government to the states. To begin with, they do nothing to restrict the three traditional avenues for enforcing federal law against the states in federal court. First, because the Eleventh Amendment does not apply to suits by the United States, see, e.g., Principality of Monaco v. Mississippi, 292 U.S. 313, 328-29 (1934), the federal government still may sue the states in federal court, for money damages or injunctions. Second, under Ex Parte Young, 209 U.S. 123 (1908), a private party still may sue state officials in federal court for injunctive relief, even though, as a practical matter, the injunction binds the state itself. Third, a private party still may sue state officials in federal court for money damages in their individual capacities (subject, in many cases, to a qualified immunity where the conduct at issue did not violate clearly established federal law). See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-48 (1974). These available federal-court remedies are significant. Indeed, they have proven sufficient to secure widespread state compliance with the Constitution itself, even though 42 U.S.C. § 1983, the catchall federal-court damages remedy for state constitutional violations, does not apply to the states themselves, see Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). College Savings and Florida Prepaid simply place Lanham Act and patent infringement plaintiffs in the same position, vis-a-vis the federal courts, that plaintiffs with constitutional claims have occupied at least for the decade since Will was decided.

With regard to redress in state courts, Florida Prepaid makes clear that Alden is far less categorical than appears at first glance. Florida Prepaid confirms that, where "life, liberty, or property" are at stake, the states still have an obligation to provide adequate redress for any deprivations that they have inflicted on private parties, not because Congress can legislatively override their immunities, but because the Fourteenth Amendment of its own force prohibits such deprivations "without due process of law." That is a significant obligation, given the range of interests protected against state infringement by the Due Process Clause itself, and by the numerous bill-of-rights provisions held to have been incorporated into the Due Process Clause. Florida Prepaid leaves open the question what constitutes adequate redress in state courts. Presumably, the available theories of liability need not be identical to those available in federal court. Indeed, such complete overlap appeared impossible in Florida Prepaid itself, where the patent infringement claim at issue was subject to the exclusive jurisdiction of the federal courts, and where the Court seemed to assume that state-court redress would be accomplished through distinct state-law theories such as conversion or unfair competition. Moreover, the states presumably need not provide remedies as generous as the treble damages and attorneys' fees that are available under the federal patent statutes, but surely not constitutionally compelled as a matter of due process. At some point, however, the failure to provide adequate redress in state court would itself constitute a due process violation possibly remediable either by the Supreme Court, see 28 U.S.C. § 1257, or by the district courts through § 1983, see, e.g., Parratt v. Taylor, 451 U.S. 527 (1981).

Finally, the recent sovereign immunity decisions do nothing to restrict the broad substantive powers of Congress to regulate either private parties or the states. Under the modern Court's decisions, Congress's power under the Commerce Clause is subject only to modest restrictions, see United States v. Lopez, 514 U.S. 549 (1995), and although Congress may not specifically target either state legislatures, see New York v. United States, 505 U.S. 144 (1992), or state executive agencies, see Prinz v. United States, 521 U.S. 898 (1997), for the imposition of federal obligations, it may nonetheless extend generally applicable laws to the states even in areas affecting core concerns of state sovereignty, see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). It is perhaps fitting that Alden, like Garcia itself, involved application to the states of the Fair Labor Standards Act ("FLSA"). That parallel highlights the fact that, although states are no longer subject to private enforcement of the FLSA through damages remedies (absent their consent), they do remain subject to the FLSA, and to enforcement by the federal government and by private parties through Ex Parte Young. Thus, although the recent decisions mitigate what the Court described as the "indignity" of subjecting the states to coercive private enforcement, they do not address far more basic questions about the appropriate extent of Congress's substantive powers vis-a-vis either the states or private parties.

* Greg Katsas is a partner in the Washington, D.C. office of Jones, Day, Reavis & Pogue. The views expressed in this article are his own personal views and do not necessarily reflect those of Jones Day.


2001 The Federalist Society