|
Thomas
F. Gede*
"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 Hansuntil, 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.
*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.
|