1. Constitutional Law I Spring 2004Con Law I Immunities (sovereign & otherwise) April 1, 2004

2. 2 Extending the 11 th Amendment Previously 11 th Amendment restricted federal court jurisdiction when state an involuntary party  Nominal Party Rule  Stripping Doctrine for equitable relief  Waiver  Abrogation Congress could abrogate SI under valid § 5 enactment State SI broader than literal text of 11 th Amd.  Embodied “background” principles of sovereignty

3. 3 Extending the 11 th Amendment State SI in state court Constitution is generally indifferent to state claims & defenses  State can give itself immunity on state claim in state court State courts must hear federal claims  To extent its courts are open to the type of claims  Federal “rules of decision” apply (reverse Erie) Do states have SI in own courts against Federal claims?

4. 4 Alden v. Maine (1999) States gave themselves immunity in own courts prior to 1787 Constitution did not explicitly repeal state SI Chisholm was departure; overruled by 11 th Restores original understanding of SI – “essential sovereignty of the States” Even with immunity from suit (in both state and federal court), the “good faith of the states” will assure constitutional fidelity.

5. 5 FMC v. SC State Port Auth. (2202) Can states assert SI if sued in a federal agency tribunal? Quasi-judicial function of Art. II court  Private party suing state agency for violation of federal law (Shipping Act)  Agency hearing was predicate to Art. III proceeding This is sometimes, but not always, req’d by statute

6. 6 FMC v. SC State Port Auth. (2202) Basis for State SI Thomas:  “States, in ratifying the Constitution, did surrender a portion of their inherent immunity by consenting to suits brought by sister States or by the Fed. Gov’t. Nevertheless, the Convention did not disturb States’ immunity from private suits, thus firmly enshrining this principle in our constiutional framework.”  “Eleventh Amendment does not define the scope of the States’ sovereign immunity; it is but one particular exemplification of that immunity.”

7. 7 FMC v. SC State Port Auth. (2202) Extent of State SI Immunity from Judicial Proceedings Immunity from Administrative Proceedings?  Quasi-judicial functions are ancillary to exec functions  States not subject to agency adjudication in 1787 Which history matters? No immunity from agencies? Or no agencies? Resurrect the framers and ask them  Agency suits “walk, talk and squack very much like a [traditional] lawsuit.” Affront to state “dignity”  More so in Art. III court or administrative agency?

8. 8 FMC v. SC State Port Auth. (2202) Immunity from what? Liability Jurisdiction  Immunity means not having to even show up Immediate appeal lies from denial of immunity Let’s extend state immunity If FMC agreed to proceed against S.Car., not after quasi-judicial hearing, but through normal admin process, would that also violate SI?  Are states simply immune from federal law altogether  If US can sue state, why can’t private party ask it to do so? Does FMC prevent that?

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