1. Constitutional Law Spring 2008 Prof. Fischer Class 15 Limits on Legislative Power/Judicial Power: Sovereign Immunity and Amendment XI

2. Amendment XI (ratified 1795) The judicial power of the United States shall not be construed to extend to any [suit] commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects or any Foreign States.

3. History of Sovereign Immunity: Common Law Doctrine - Crown Immunity "The State of monarchy is the supreme thing on Earth........ As to dispute what God may do is blasphemy, so is it treason in subjects to dispute what a king may do.....“ (James I – The Trew Law of Monarchy (1598) "A good king will frame his actions according to the law, yet he is not bound thereto but of his own goodwill.“ (James I - 1598 – The Trew Law of Monarchy (1598))

4. Is sovereign immunity an anachronistic doctrine? Felix Frankfurter (born 1882 in the Austro- Hungarian Empire) argued that it was “an anachronistic survival of monarchical privilege” In Great Northern Life Ins. Co. v., 322 U.S. 47 (1944) Frankfurter stated that sovereign immunity “undoubtedly runs counter to modern democratic notions of the moral responsibility of the State.”

5. History of Eleventh Amendment Reaction to Supreme Court decision in Chisholm v. Georgia (1794) on whether Article III authorized suit against Georgia without its consent Chief Justice John Jay (left) agreed with Blair, Wilson, Cushing that it did. Iredell lone dissenter

6. Hans v. Louisiana (1890) [C p. 223] Suit by Hans (LA citizen) against LA Claim: violation of Contracts Clause A I § 10 Justice Bradley wrote the opinion of the Court

7. Limits on Eleventh Amendment immunity What are the three main limits on state immunity?

8. 1. Limit on state immunity: certain lawsuits against state officials Ex parte Young (1908) [C p. 223] Lawsuits for injunctive relief Damages? Exceptions – no state claims via supplemental (pendant) jurisdiction under 28 U.S.C. § 1367; lawsuits enforcing laws with comprehensive enforcement mechanisms (e.g. IGRA in Seminole Tribe v. Florida (1996))

9. 2. Limit on state immunity: WAIVER/CONSENT Must be explicit. No constructive waivers No implied waivers.

10. 3. Limit on state immunity: abrogation

11. Other limits on state sovereign immunity Lawsuits by federal government against the states Lawsuits in admiralty Lawsuits by state against other states (as long as state suing to protect own interests, not that of citizens) Lawsuits against municipalities or political subdivisions of states as long as not really suing states

12. Seminole Tribe v. Florida (1996) [C p. 228] Statute at issue: IGRA Gaming has caused Seminole Tribe to rise from abject poverty to huge wealth

13. Seminole Tribe v. Florida (1996) [C p. 228] Majority opinion of Justice Rehnquist, joined by O’Connor, Scalia, Kennedy, and Thomas

14. Seminole Tribe v. Florida (1996) [C p. 228] Dissent of Stevens (who telecommutes from Florida for around 2 weeks each month in the winter months)

15. Seminole Tribe v. Florida (1996) [C p. 228] Dissent of Souter, joined by Ginsburg and Breyer