1. Constitutional Law I Eleventh Amendment March 8, 2006

2. Spring, 2006Con Law I - Manheim2 Meaning of Sovereign Immunity The Sovereign (king, State, officers) is not bound by the law Hard to maintain in post-1776 America  Non sub homine, sed sub Deo et lege Rule of substantive law The Sovereign is not subject to suit in its own courts without its consent Rule of jurisdiction

3. Spring, 2006Con Law I - Manheim3 Chisholm v. Georgia (1793) Background Georgia reneges on a revolutionary war debt Chisholm (from S.Car.) sues GA in federal court  Art. III, § 2: “The judicial power shall extend to … all controversies between a State and citizens of another State…” Accord fed statute GA asserts sovereign immunity  Does Art. III merely confer jurisdiction; or  Does it enact a rule of law overriding immunity defenses states might otherwise have? S.Ct. adopts the latter interpretation

4. Spring, 2006Con Law I - Manheim4 Chisholm v. Georgia (1793) Art. III: merely jdx’l or also substantive law “The people of the United States” intended to bind the states by the legislative, executive, and judicial powers of the national government. The Court held that supreme or sovereign power was retained by citizens themselves, not by the "artificial person" of the State of Georgia. The Constitution made clear that controversies between individual states and citizens of other states were under the jurisdiction of federal courts. State conduct was subject to judicial review.

5. Spring, 2006Con Law I - Manheim5 Enactment of 11 th Amendment Text “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.” Sovereign Immunity How does 11 th Amd correct Chisholm?  Withdraws federal jurisdiction in certain cases; or  Creates a rule of substantive law – sovereign immunity If the latter, does the 11 th bestow sovereignty immunity, or merely restore whatever immunity states had prior to their entry into the Union?

6. Spring, 2006Con Law I - Manheim6 Withdrawal of Federal Jdx Diversity Suits 11th amd divests federal courts of jdx over states (as defendant) The judicial Power [of the United States] shall extend to all Cases, in Law and Equity… between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." against 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.”

7. Spring, 2006Con Law I - Manheim7 Withdrawal of Federal Jdx Diversity Suits 11th amd divests federal courts of jdx over states (as defendant) Federal Question cases Hans v. Louisianna (1890)  11 th Amd. to be liberally construed  Withdraws federal jurisdiction against state defendants in all cases, including federal question cases. Compare Sedgwick proposal (for 11 th amd):  "No state shall be liable to be made a party defendant, in any of the judicial courts established … under the authority of the United States …"

8. Spring, 2006Con Law I - Manheim8 Federal Supremacy after 11 th Am Effect of 11th on federal supremacy If states can't be sued in fed. court on federal claims, how is const'n enforced against them? Suit in state court  Myth of parity  Review by USSC Stripping doctrine Suits against state officers (Ex Parte Young)  A state officer violating federal law cannot be acting on behalf of the state, so cannot assert state SI Only applies to injunctive relief  Damages come from state treasury

9. Spring, 2006Con Law I - Manheim9 Pennhurst v. Halderman (1984) Stripping doctrine Suit against state officer for violating federal rights (statutory, as well as constitutional) Suit against state officer for violating state rights  State officer acting ultra vires her authority Stripping based on fiction to enable supremacy of federal law; does not extend to state law Kenneth Culp Davis: "as long as the doctrine of sovereign immunity continues to prevent suits which are really against the government to be brought against the government, what is needed is consistent adherence to the false pretense and rejection of the truth."

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11. Spring, 2006Con Law I - Manheim11 Exceptions Stripping Doctrine (Ex Parte Young) Abrogation by Congress Explicit State Waiver (Atascadero) By statute (e.g., Prop 57 bonds) By invoking federal jurisdiction (Clark v. Barnard) By removing case to federal court (Lapides) Inapplicable To local government (Mt. Healthy) In Supreme Court (ME v. Thiboutot) Suits by federal gov’t (US v. MS) Suits by other states (CO v. NM)

12. Spring, 2006Con Law I - Manheim12 Exceptions Congressional Abrogation Theory: in ratifying the constitution, states relinquished power – hence sovereignty. When congress acts within its enumerated power, states have no sovereignty. Not all federal laws abrogate SI – only those that say they do

13. Spring, 2006Con Law I - Manheim13 Congressional Abrogation Power to Abrogate 14th Amd. Section 5 (post-dates 11 th amd) Section 8 (pre-dates 11 th amd) Explicit abrogation Congress must make clear that law extends to states (Gregory v. Ashcroft) and that enforcement suits may be brought against state in federal court

14. Spring, 2006Con Law I - Manheim14 Abrogation under Section 5 Fitzpatrick v. Bitzer (1976) 14 th amd is a limitation on state power  States have no sovereign right to act contrary § 5 empowers congress to enforce those limits  States have no sovereign right to defy enforcements 11 th Amd (whatever it means) is limited by subsequent enactment of 14 th Amd  Gen'l rule of construction: in case of conflicting provisions, the later in time controls

15. Spring, 2006Con Law I - Manheim15 Abrogation under Section 8 Pennsylvania v. Union Gas (1989) 11 th Amd did not create sovereign immunity; it restored that which existed before Chisholm Whatever sovereign immunity states enjoyed prior to ratification, they ceded it coextensive with grants of substantive power to congress.  This "background principle" of State sovereign immunity was necessarily limited by § 8 grants of power to congress  Any enactment within congress' § 8 powers is capable of overriding state sovereign immunity

16. Spring, 2006Con Law I - Manheim16 Seminole Tribe v. Florida (1996) Indian Gamin Reg. Act requires states to negotiate with Indian tribes re. Gaming Act allows tribes to sue States in federal court if they fail to negotiate in good faith Act passed under Indian commerce clause Abrogation Does act "unequivocally express" congress' "intent to abrogate [state] immunity"? Can congress do so?

17. Spring, 2006Con Law I - Manheim17 Seminole Tribe v. Florida (1996) Majority: Section 8 powers were limited by 11 th Amd Congress cannot abrogate when acting per § 8 Penn. v. Union Gas overruled Stevens dissent: Congress cannot provide enforce- ment against states of most federal rights

18. Spring, 2006Con Law I - Manheim18 Seminole Tribe v. Florida (1996) Souter dissent: Did states enjoy SI in own courts before 1789? If so, did that immunity carry over to federal courts after ratification?  No historical record, at least wrt federal question cases, suggesting "a general understanding that the States would have no immunity in such cases" Even if states otherwise have SI in federal cases, can congress abrogate it?  What is the federalism difference between suits under self-executing provisions of the constitution, &  Suits explicitly authorized by Congress?

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20. Spring, 2006Con Law I - Manheim20 Alden v. Maine (1999) Suit against Maine under FLSA Fed.Ct. lacks jdx per 11 th Amd. 11 th is more than a w/drawal of jdx; it evinces a substantive rule of law (immunity defense) Federal substantive law applies in state court SI as a constitutional rule Not based on 11 th amd. per se Not based on any constitutional text Based on const’l “understandings”

21. Spring, 2006Con Law I - Manheim21 Alden v. Maine (1999) Theory of state sovereign immunity States were sovereign, pre-constitution Upon ratification they relinquished sovereignty only pursuant to the “plan of the convention”  I.e., wherever they precluded their own action e.g., Art. I, §10; Art. IV; 14th Amendment  Not where they merely delegated power to congress delegation of enumerated power was over individuals not over states; therefore states relinquished sover’ty viz individuals (supremacy) delegation did not include relinquishment of immunity Nice theory; but is it law?

22. Spring, 2006Con Law I - Manheim22 FMC v. S. Carolina (2002) Claim: SC violates Shipping Act Forum: Federal Agency (“Art. I court”) Agencies often adjudicate claims pertaining to their specialized jdx Agencies can also file suit on behalf of claimant  e.g., US v. Morrison; NLRB Neither 11 th Amd. nor SI apply to suits against states by US “Dual Sovereignty” in agency adjudications 11 th Amd. does not apply by its own terms No history of SI – no federal agencies

23. Spring, 2006Con Law I - Manheim23 FMC v. S. Carolina (2002) No text, no historical practice, then what? Ask the framers  “To decide whether SI applies here we must examine FMC adjudications to determine whether they are the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.”  “we cannot imagine that they would have found it acceptable to compel a State to answer complaints of private parties before an administrative tribunal” By extension  “FMC administrative proceedings bear a remarkably strong resemblance to civil litigation in federal cts.”

24. Spring, 2006Con Law I - Manheim24 FMC v. S. Carolina (2002) Deconstructing FMC proceedings Step 1: private citizen asks US to sue  Breyer: 1 st amendment right to do so Step 2: US may file suit in federal court  SI doesn’t apply to suits against states by the US Bottom line Actions that challenge a state’s “dignity” are barred, not by anything actually in the consti- tution, but by what 5 members of the court think the framers would have preferred.  These 5 judges are the “strict constructionists”  Other judges are “activist”

25. Spring, 2006Con Law I - Manheim25 TSAC v. Hood (2004) Abrogation under Congress’ Bankruptcy Power Art. I, § 8, cl. 4:  Congress has power “to establish... uniform Laws on the subject of Bankruptcies throughout the US.” 11 U.S.C. § 727(b) [Chapter 7, Voluntary Discharge] :  discharge under sub § (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter Defendants:  Federal: United States; Dept. of Education; Sallie Mae  State: TSAC  Private: University Account Services Enjoys SI, but not based on 11th Amd; often waived

26. Spring, 2006Con Law I - Manheim26 TSAC v. Hood (2004) Lower court holding (BC, BAP, 6th Cir): States ceded their SI at const’l convention Congress can abrogate per bankruptcy clause Rehnquist: 11th Amd & Abrogation are inapposite against In Rem proceedings are not against a state  Literal terms of 11 th amd are to be disregarded  Bankruptcy discharge operates against whole world Education loans gen’ly not dischargeable 11 USC § 523(a)(8) unless hardship is proven Fed.R.Bank.P require “adversary proceeding” against State Formal distinction even if an “affront” to State sovereignty

27. Spring, 2006Con Law I - Manheim27 TSAC v. Hood (2004) Thomas (dissent) This proceeding was in personam (adversary) even if other bankruptcy proceedings are in rem Congress justified discharge against states as an abrogation of State SI, not as exception to rule Grant of power to Congress to establish “uniform laws on Bankruptcy throughout the US” is not enough to override the (non-textual, pre-const’l) immunity of states from federal regulation Who won the Civil War? Constitution of the Confederate States of America

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30. Spring, 2006Con Law I - Manheim30 The remainder of these slides are not covered this semester; they involve Congress’ ability to abrogate 11th amendment immunity under its 14th Amendment, Section 5 powers. Some of this will be covered in your Constitutional Law II course.

31. Spring, 2006Con Law I - Manheim31 Florida Prepaid v. College SB (1999) College SB patent infringed by state agency Patent laws passed pursuant to patent clause Fed courts have exclusive jdx in patent cases Patent Remedy Act allows suits against states Can congress abrogate SI per Patent Clause No different than other § 8 powers Can congress abrogate SI per § 5 powers Yes, so long as law is "appropriate"  Congruence & proportionality test of Boerne

32. Spring, 2006Con Law I - Manheim32 Florida Prepaid v. College SB (1999) Congruence & proportionality for § 5 laws 1. What constitutional violation is at stake?  State infringement of patent (federal property right)  If done w/o compensation, it violates "due process" 2. Is the remedy provided by congress congruent to this constitutional wrong?  Act allows suit without first seeking comp. from state 3. Viewed as a prophylactic measure, is it propor- tional to likelihood & magnitude of the wrong?  Apparently not since no pattern of widespread abuse  Prophylactic laws appropriate only for "widespread and persisting deprivation of constitutional rights" New require- ment for § 5 enact- ments

33. Spring, 2006Con Law I - Manheim33 Florida Prepaid v. College SB (1999) Congruence & proportionality for § 5 laws Conclusion: Since the Patent Remedy Act is neither remedial nor prophylactic, It is not responsive to unconstitutional behavior § 5 must be a contrived basis for the law; it is really based on § 8. Stevens dissent: Court creates loophold in patent law; states have total freedom to infringe private property  Patents issued to, and infringement by, states is not a trivial issue

34. Spring, 2006Con Law I - Manheim34 Kimel v. Fla Bd. of Regents (2000) Age Discrimination in Employment Act (ADEA) Prohibits age discrimination by employers  Including states  With exceptions (e.g., BFOQ) Passed pursuant to congress' § 8 & § 5 powers  The former cannot abrogate state sovereignty  The latter can, but only if Congruent & Proportional to a 14 th Amd violation Boerne Test: Congruent: remedy must track § 1 violation Proportional: preventative measures must be in relation to risk of § 1 harm

35. Spring, 2006Con Law I - Manheim35 Kimel v. Fla Bd. of Regents (2000) Boerne Test: 1. Identify the constitutional violation  Irrational age discrimination; almost never found since age can be used as a proxy for everything else 2. Congruence  ADEA is not congruent because it forbids perfectly lawful discrimination by state and local gov'ts 3. Proportionality  As a prophylactic measure to prevent unconst. age discrimination, ADEA is way out of proportion  Unconst. age discrimination is an inconsequential problem; appropriate  Therefore, this is not an appropriate legislative response

36. Spring, 2006Con Law I - Manheim36 Univ of Alabama v. Garrett (2001) Americans with Disabilities Act (ADA) Title I Prohibits discrimination by employers (states) Boerne Test: 1. Identify the constitutional violation  Discrimination against disabled subject to RB test  States need not accommodate disabled (if rational) 2. Congruence  ADA not congruent since it forbids lawful state action 3. Proportionality  No overwhelming evidence of irrational state discrim.  Irrational discrim. by cities not relevant since no SI State  § 5 law must be proportional to unconst State action

37. Spring, 2006Con Law I - Manheim37 Univ of Alabama v. Garrett (2001) Boerne Test: 3. Proportionality  Congress cannot legislate against isolated or occasional unconstitutional state actions  There must be widespread pattern of illegality before it is "appropriate" for congress to legislate against it.  And the pattern must be found by Congress itself, not some agency or independent task force Cumulative impact of Garrett et al. Congress cannot create new rights Congress cannot expand scope of existing rights, beyond S.Ct. rule

38. Spring, 2006Con Law I - Manheim38 Tennessee v. Lane (2004) ADA Title II prohibits discrimination against qualified individuals by a “public entity” Tennessee state courthouses not accessible Congressional findings: disabled are discrete and insular minority history of purpose- ful discrimination unfair stereotype assumptions same as Supreme Court’s “indicia of suspect class” for equal protection

39. Spring, 2006Con Law I - Manheim39 Tennessee v. Lane (2004) Abrogation of 11 th Amendment Immunity Clear statement required  “States shall not be immune” Valid enactment (14 th amd § 5) required Boerne test: Identify const’l rights at stake  irrational discrimination against disabled  due process access to judicial system (courts)  criminal procedure rights (6 th am. confrontation) congruence and proportionality

40. Spring, 2006Con Law I - Manheim40 Tennessee v. Lane (2004) Congruence: Statutory remedy must match const’l rights  Aimed at due process violations (strict scrutiny) Proportionality: Risk and scope of const’l violation must justify prophylactic (preventative) measures  High risk: “pattern of unconstitutional treatment” – up to 76% of public services were inaccesable  Scope/breadth: Title II does not over-respond to const’l violations. Only reasonable accommodations are required. If it did, the Act might be viewed as an attempt to “rewrite the 14 th Amd;” i.e., create new rights

41. Spring, 2006Con Law I - Manheim41 Tennessee v. Lane (2004) Dissent (Rehnquist on Congruence) Title II duty to accommodate not limited to services/actions that trigger strict scrutiny  Same as to much of the evidence before congress  Apply rationality standard for physical barriers Higher standard required for § 5 enactments when abrogating state sov. immunity  No widespread pattern of State violations; most cases cited by congress involved local gov’t, which doesn’t have 11 th Amd immunity  But, County courts are “arms of the state” for 11 th amd.

42. Spring, 2006Con Law I - Manheim42 Tennessee v. Lane (2004) Dissent (Rehnquist on Proportionality) Title II applies to instances where failure to accommodate is lawful (e.g., hockey rinks)  Scope/breadth: Title II is not overkill simply because some applications (not before Court) might not pass.  FACIAL vs. AS-APPLIED unconstitutionality

43. Spring, 2006Con Law I - Manheim43 Tennessee v. Lane (2004) Dissent (Rehnquist on Proportionality) Title II applies to instances where failure to accommodate is lawful (e.g., hockey rinks)  Scope/breadth: Title II is not overkill simply because some applications (not before Court) might not pass.  FACIAL vs. AS-APPLIED unconstitutionality Rehnquist is wrong: There is no such thing as FACIAL constitutionality That a law might be unconsti- tutional AS-APPLIED in some other case (not before the Ct) is immaterial to this case Dissent (Scalia on Boerne) Congrence/Proportion’y invites judicial activism Replace with strict interpretation of “enforce”  Dictionary definition (1868).  No prophylactic laws; only remedial (ex. race discrim) Why not same approach for text of 11 th Amd?