1. Part 4: Sovereign Immunity and New Judicial Federalism
Lecture 22 Federalism
Part 4: Sovereign Immunity
and New Judicial Federalism

2. This lecture We will cover Sovereign Immunity and the 11th Amendment
New Judicial Federalism
Pages

3. Sovereign Immunity
States were to be protected from lawsuits from citizens of other states unless the state consents to the lawsuit
Chisholm v. Georgia (1793)
Court allows jurisdiction for a lawsuit by South Carolina citizens against Georgia
This is overturned by ratification of the 11th Amendment in 1795
But what about suits by people in the state suing their own state in federal court?
Cohens v. Virginia (1821) seemed to say the could sue
Hans v. Louisiana (1890) says no they can not
Can Congress abrogate this?
Fitzpatrick v. Bitzer (1976) says yes on 14th Amendment grounds
Pennsylvania v. Union Gas Company (1989) says yes on Commerce clause grounds
Seminole Tribe of Florida v. Florida (1996) takes the opposite view

4. Alden v. Maine (1999) Alden v. Maine (1999) Background
Congress can make exceptions to sovereign immunity at given times
Congress enabled state employees to sue states for violations of the FLSA
In light of Seminole Tribe of Florida, they lost their case in federal court
So they moved to state court to sue under the FLSA
Question: Can Congress abrogate a state’s immunity under Article I from suits in state courts?

5. Alden v. Maine- II Arguments For Alden (to abrogate)
States cannot use sovereign immunity in a state case
The 11th Amendment only applies in federal courts
For the State of Maine (against abrogation)
It is essential to state sovereignty
Do not interpret it to only apply to federal courts

6. Alden v. Maine- III Justice Kennedy rules for a 5-4 Court
The original silence was based on the belief that no one would try to abrogate sovereign immunity of states
Early history shows these suits were not authorized by Congress
Congress authorizing this in state courts would be more offensive to state sovereignty than authorizing it in federal court
It would act to commandeer the state judicial system by the federal government
The federal government holds immunity, so why not states too?
It could threaten the financial integrity of a state
It could give the federal government undo leverage over states

7. Alden v. Maine- IV More from Kennedy Sovereign immunity has its limits
States may consent to lawsuits
Congress may assert its 14th Amendment powers
It bars actions against only states, but not other entities
Maine never consented to the suit
Thus Maine holds sovereign immunity from lawsuits under the FLSA in its state courts

8. Alden v. Maine- V Justice Souter, dissenting
Joined by Stevens, Ginsburg, and Breyer
Congress had authority to extend FLSA protections to state employees- so why not give them a right of action for its violations
If there is a right, there must be a remedy
He compares their decisions on sovereign immunity to those of the Lochner era
The one being as unrealistic as the other, as indefensible, and probably as fleeting
So Stevens hopes this line of cases is overturned someday

9. A few more Sovereign Immunity Cases
Most of the rest of the rulings go in favor of states
Kimel v. Florida Board of Regents (2000)
No under the Age Discrimination Act
Board of Trustees of the University of Alabama v. Garrett (2001)
No under the Americans with disabilities act
Nevada Department of Human Resources v. Hibbs (2003)
Yes, for a specific application of the Family and Medical Leave Act
There was a pattern of state violations
Coleman v. Maryland Court of Appeals (2012)
No, also under the Family and Medical Leave Act
No pattern of violation established

10. New Judicial Federalism
When will the federal courts review cases of state courts?
If a federal law or constitutional provision is involved it can
Murdock v. City of Memphis (1875)
The Court would not review state court decisions unless it implicated federal law
Adequate and independent state grounds test
State courts are entitled to interpret state laws
The Burger Court changes things
It went from 75% ruling for criminal defendants to only 30%
Liberals on the Court suggested that state courts provide for more protection of civil liberties and rights by using their own constitutions above those at the federal level
This would avoid review at the federal level

11. Michigan v. Long (1983) Michigan v. Long (1983) Background
State courts often address federal and state constitutional provisions in opinions
This makes the adequate and independent state grounds test murky
The Court had used many remedies and applications
Dismissal of the appeal
Sending it back for clarification (the first 2000 election decision)
Direct the litigant to get state clarification
Making a judgment on what basis the state court used

12. Michigan v. Long- II More background
Article 1, Section 11 of the Michigan Constitution was nearly identical to the Fourth Amendment
The Michigan Supreme Court invoked both the federal and state constitutions as the reason for its decision
They ruled in favor of Long to suppress a search of his car by police
However, they rested their decision on both constitutions
Question: Did the Supreme Court have jurisdiction in this case under the adequate and independent grounds test?

13. Michigan v. Long- III Arguments:
For Michigan (the Attorney General, not the Supreme Court)
Even thought the Michigan Supreme Court mentions the Michigan Constitution, they based the decision only on Fourth Amendment cases
If they would have applied Michigan law properly, it would have been upheld given the strong relationship between it and the Fourth Amendment
For Long (to uphold the Michigan Supreme Court ruling)
The Court lacks jurisdiction because the Michigan Supreme Court based its decision on adequate state law grounds
Michigan law grants more rights for search and seizure than the Fourth Amendment does
In the alternative, the Court should remand for clarification

14. Michigan v. Long- IV
Justice O’Connor delivers the 6-3 opinion (some was 5-4)
Justice Blackmun concurred in part and dissented in part
Under the Fourth Amendment, Terry would say the search was reasonable
The Michigan Court ruled more on Fourth Amendment grounds than Michigan ones
This was the problem
If they had ruled only on Michigan state grounds, the court would not weigh in
The mentioned nearly all federal cases and only two state ones
Need for uniformity of federal law interpretation
She says state courts should write clearly and expressly on bona fide state legal grounds
State courts picked up on this- note the Massachusetts same sex marriage case

15. Michigan v. Long- V Justice Stevens, dissenting
There was also a dissent by Brennan, joined by Marshall
He makes a judicial restraint argument
He rejects the uniformity argument
He said there were a lot of other alternatives the Court could have employed rather than simply overturn this ruling

16. Next lecture We will wrap up the chapter on federalism
National preemption of state laws
Three main cases
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