Nature of States' Immunity

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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.

Hans v. Louisiana and Ex parte New York note that Chisholm was erroneously decided and that the Amendment’s intent was to restore the “original understanding” that a state could not be sued without its consent, and that nothing in the Constitution, including Article III’s grants of federal court jurisdiction, was intended to provide otherwise. In Edelman v. Jordan,1 the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. The Court stated: “[I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” 2 But that the bar is not wholly jurisdictional seems established as well.3

Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit4 becomes conceptually difficult, as jurisdiction may not be conferred if the state refuses its consent.5 And Article III jurisdiction exists for some suits against states, such as those brought by the United States or by other states.6 Furthermore, Congress is able, in some instances, to legislate away state immunity,7 although it may not enlarge Article III jurisdiction.8 The Court has declared that “the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art. III,” while acknowledging that “[a] sovereign’s immunity may be waived.” 9

Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: a state was not subject to suit without its consent.10 Modern case law supports this view. In the 1999 Alden v. Maine decision, the Court stated: “the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today” 11 The Court, in dealing with questions of governmental immunity from suit, has traditionally treated precedents dealing with state immunity and those dealing with Federal Governmental immunity interchangeably.12 Viewing the Amendment and Article III this way explains consent to suit as a waiver.13 The limited effect of the doctrine in federal courts arises from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own courts or the courts of another sovereign. But upon entering the Union the states surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but that is more than their coequal.14

Within the area of federal court jurisdiction, the issue becomes the extent to which the states, upon entering the Union, ceded their immunity to suit in federal court. Chisholm held—and the Eleventh Amendment reversed —that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment, in effect, recognized state immunity to suits based on federal causes of action.15 Other cases have held that states ceded their immunity to suits by the United States or by other states.16

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the Federal Government’s power.17 In this respect, the federal courts may not act without congressional guidance in subjecting states to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially created doctrines requiring it to be explicit when it legislates against state immunity.18

Questions regarding the constitutional dimensions of sovereign immunity have arisen in the context of interstate sovereign immunity when a private party institutes an action against a state in another state’s court. In the now-overturned 1979 decision of Nevada v. Hall, the Court held that while states are free as a matter of comity “to accord each other immunity or to respect any established limits on liability,” the Constitution does not compel a state to grant another state immunity in its courts.19 In Hall, California residents who were severely injured in a car crash with a Nevada state university employee on official business sued the university and the State of Nevada in California court.20 After considering the scope of sovereign immunity as it existed prior to and “in the early days of independence,” the doctrine’s effect on “the framing of the Constitution,” and specific “aspects of the Constitution that qualify the sovereignty of the several States,” such as the Full Faith and Credit Clause,21 the Court concluded that “[n]othing in the Federal Constitution authorizes or obligates this Court to frustrate” California’s policy of “full compensation in its courts for injuries on its highways resulting from the negligence” of state or non-state actors “out of enforced respect for the sovereignty of Nevada.” 22

Forty years later, the Court overruled Hall in Franchise Tax Board of California v. Hyatt (Franchise Tax Board III), holding that “States retain their sovereign immunity from private suits brought in the courts of other States.” 23 Franchise Tax Board III involved a tort action by a private party against a California state agency in Nevada’s courts.24 The “sole question” before the Court was whether to overrule Nevada v. Hall, a question over which the Court divided in 2016.25 As the majority in Franchise Tax Board III read the historical record, although interstate sovereign immunity may have existed as a voluntary practice of comity at the time of the Founding, the Constitution “fundamentally adjust[ed] the States’ relationship with each other and curtail[ed] their ability, as sovereigns, to decline to recognize each other’s immunity.” 26 The Court reiterated the view embraced in several of its decisions since Hall that in proposing the Eleventh Amendment in response to Chisholm v. Georgia, “Congress acted not to change but to restore the original constitutional design.” 27 Accordingly, the Court explained, the “sovereign immunity of the States . . . neither derives from, nor is limited by, the terms of the Eleventh Amendment.” 28 Moreover, the Court reasoned, “[n]umerous provisions” in the Constitution support the view that interstate sovereign immunity is “embe[dded] . . . within the constitutional design.” 29 Among other provisions, the Court cited Article I insofar as it “divests the States of the traditional diplomatic and military tools that foreign sovereigns possess” and Article IV’s Full Faith and Credit Clause, which requires that “state-court judgments be accorded full effect in other States and preclude[s] States from ‘adopt[ing] any policy of hostility to the public Acts’ of other States.” 30 Accordingly, because sovereign immunity was inherent in the constitutional design, the Court concluded that the State of California could not be sued in Nevada absent the former state’s consent.31

1: 415 U.S. 651 (1974).
2: 415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945), where the issue was whether state officials who had voluntarily appeared in federal court had authority under state law to waive the state’s immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional issue on its own motion.
3: See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in which the Court bypassed the Eleventh Amendment issue, which had been brought to its attention, because of the interest of the parties in having the question resolved on the merits. See id. at 520 (Justice Lewis Powell dissenting).
4: Clark v. Barnard, 108 U.S. 436 (1883).
5: E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Lewis Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting states).
6: See, e.g., the Court’s express rejection of the Eleventh Amendment defense in these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904).
7: E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
8: The principal citation is Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
9: Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984).
10: As Justice Oliver Holmes explained, the doctrine is based “on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Of course, when a state is sued in federal court pursuant to federal law, the Federal Government, not the defendant state, is “the authority that makes the law” creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154 (1996) (Souter, J., dissenting). For the history and jurisprudence, see Lewis J. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).
11: Alden v. Maine, 527 U.S. 706, 713 (1999).
12: See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild, 161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642–43, 645 (1911).
13: A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940).
14: See Fletcher, supra.
15: For a while only Justice William Brennan advocated this view, Parden v. Terminal Ry., 377 U.S. 184 (1964); Emps. of the Dep’t of Pub. Health and Welfare v. Dep’t of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Stevens, dissenting).
16: E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may seek damages from another state, including damages to its citizens, provided it shows that the state has an independent interest in the proceeding).
17: E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S. 332, 337 (1979).
18: See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ among themselves as to the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). As noted in the previous section, later cases stiffened the rule of construction. The parallelism of congressional power to regulate and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), the Court strictly construed congressional provision of suits as not reaching states, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law.
19: 440 U.S. 410, 426 (1979), overruled by Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1492 (2019) [hereinafter Franchise Tax Bd. III.] 40. Id. at 411–12.
20: Id. at 411–12.
21: Id. at 414–18.
22: Id. at 426. In the Court’s view, for a federal court to infer “from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy of full compensation, that holding would constitute the real intrusion on the sovereignty of the States—and the power of the people—in our Union.” Id. at 426–27.
23: Franchise Tax Bd. III, 139 S. Ct. 1485, 1492 (2019).
24: Id. at 1490–91.
25: Id. at 1491; see also Franchise Tax Bd. of Cal. v. Hyatt, 136 S. Ct. 1277, 1279 (2016) ( “The Court is equally divided on this question, and we consequently affirm the Nevada courts’ exercise of jurisdiction over California.” ); Franchise Tax Bd. III, 139 S. Ct. at 1490–91 (explaining that the two prior Franchise Tax Board decisions centered on interpretations of the Full Faith and Credit Clause of Article IV of the Constitution).
26: Franchise Tax Bd. III, 139 S. Ct. at 1493, 1497.
27: Id. at 1496 (quoting Alden v. Maine, 527 U.S. 706, 722 (1999)).
28: Id. (quoting Alden, 527 U.S. at 713). 49. Id. at 1497.
29: Id. at 1497.
30: Id. (citation omitted).
31: Id. at 1499. The Court reasoned that stare decisis did not compel it to follow Hall even though “some plaintiffs, such as Hyatt” relied on that decision in litigation against states. Id. at1499. In the Court’s view, Hall “failed to account for the historical understanding of state sovereign immunity” and stood “as an outlier in [the Court’s] sovereign immunity jurisprudence.” Id.