1. CONGRESS POWER TO ENFORCE 13 TH, 14 TH & 15 TH AMENDMENTS AND LIMITATION IMPOSED BY THE 11th AMENDMENT Goals: Effect of 11 th A on scope of Congress power to enforce civil war amendment rights (equal protection, due process, badges of slavery, voting discrimination) Effect of 11 th A on scope of Congress power to enforce civil war amendment rights (equal protection, due process, badges of slavery, voting discrimination) learn limits imposed by 11th A & exceptions learn limits imposed by 11th A & exceptions Exceptions include: Congressional authorization of suits against state otherwise barred by 11 th A Exceptions include: Congressional authorization of suits against state otherwise barred by 11 th A Considerations of federalism… Congress power to authorize suits against States in Federal Court to remedy violations of 13, 14, 15th A implicates Federal-State relationship and relative powers Considerations of federalism… Congress power to authorize suits against States in Federal Court to remedy violations of 13, 14, 15th A implicates Federal-State relationship and relative powers

2. Brief History of 11th A Relevant Constitutional Text Article III, Sec.2 Judicial Power shall extend…to controversies between…a State and Citizens of another State… Chisholm court so bold, follows the text allows suit against South Carolina by citizen of Georgia in Federal Court

3. 11th A Adopted very quickly The Judicial power of the United States shall not be construed to extend to any suit….against one of the United States by Citizens of another State The Judicial power of the United States shall not be construed to extend to any suit….against one of the United States by Citizens of another State Literally: No Federal Court Jurisdiction over suits against the State Government by persons not from that state Literally: No Federal Court Jurisdiction over suits against the State Government by persons not from that state

4. Subsequent Judicial Interpretation Han: 11 th A reflects broad historical immunity of states from suit= (Contrary to what it actually says) No Individual can sue state in federal courts Han: 11 th A reflects broad historical immunity of states from suit= (Contrary to what it actually says) No Individual can sue state in federal courts Rationale derived from common law doctrines of sovereign immunity Rationale derived from common law doctrines of sovereign immunity Thus Han extends 11 th A restriction on federal court jurisdiction to suits brought by citizens of a state against that state Thus Han extends 11 th A restriction on federal court jurisdiction to suits brought by citizens of a state against that state

5. What isnt included w/in 11 th A Doesn't apply in suits by Fed Gov Doesn't apply in suits by Fed Gov Doesn't apply in suits by other states Doesn't apply in suits by other states Doesn't apply to Local govern entities like cities (but Pennhurst…) Doesn't apply to Local govern entities like cities (but Pennhurst…) Doesnt apply to Supreme Courts appellate jurisdiction (from state courts) Doesnt apply to Supreme Courts appellate jurisdiction (from state courts) Doesnt apply to suits against Public Officials in individual capacity if Doesnt apply to suits against Public Officials in individual capacity if

6. Ex Parte Young 11 th A Doesn't apply if suit is: Against Official of the State (not state itself/ unless State is real party in interest) Against Official of the State (not state itself/ unless State is real party in interest) Violation of Constitution or fed law via officer's actions: Violation of Constitution or fed law via officer's actions: BUT only BUT only For Prospective Relief (injunctions -even if it costs $ to enforce) For Prospective Relief (injunctions -even if it costs $ to enforce) Or $ directly out of D's pocket- personal liability (not out of state treasury) Or $ directly out of D's pocket- personal liability (not out of state treasury)

7. Exceptions May be Waived by the State (clear consent) (or removal of suit) May be Waived by the State (clear consent) (or removal of suit) May be abrogated by Congress under enabling clauses (eg,14th amendment, sec 5) as law to enforce Civil War Amendments if "unequivocally clear" May be abrogated by Congress under enabling clauses (eg,14th amendment, sec 5) as law to enforce Civil War Amendments if "unequivocally clear" WHY? WHY? 13 th, 14 th & 15 th are later in time… 13 th, 14 th & 15 th are later in time… THUS: Congress can remove 11 th A immunity and authorize suit against state government in federal courts to enforce Constitutional Rights Key Q scope of this power? (when, why, how)

8. What about Article I? Can Congress also abrogate 11 th A immunity pursuant to Article I powers…to regulate interstate commerce, control intellectual property, immigration, protect spending….? Can Congress also abrogate 11 th A immunity pursuant to Article I powers…to regulate interstate commerce, control intellectual property, immigration, protect spending….? Remember Garcia…state governments must comply with federal law Remember Garcia…state governments must comply with federal law Argument for …..? Argument for …..?

9. Supremes Say Yes…and then…No WHY Not? WHY Not? significance? Congress cant authorize private fed. suits against states for violations of most federal law…patent, copyright, commercial regulation (environment/ drug enforcement, etc), bankruptcy significance? Congress cant authorize private fed. suits against states for violations of most federal law…patent, copyright, commercial regulation (environment/ drug enforcement, etc), bankruptcy leave these laws unenforceable? leave these laws unenforceable?

10. Exceptions & alternatives for enforcement of federal law federal government can still sue federal government can still sue Monetary incentives for waiver/consent Monetary incentives for waiver/consent ….state courts? ….state courts? Stay tuned…. Stay tuned….