With COVID-related spending exacerbating state finances, we may be in for a major development of Eleventh Amendment doctrine.
On Monday, Professor Scott Gerber contributed a thoughtful post in this space criticizing the Supreme Court’s recent sovereign immunity ruling in Franchise Tax Board of California v. Hyatt. In Hyatt, the Court held that California retained its sovereign immunity in a suit brought by a citizen of Nevada in Nevada state courts. The Court overruled its 1979 decision in Nevada v. Hall, which had held that the states do not retain their immunity in suits brought in the courts of other states. Professor Gerber argues that the Court’s recent decision is inconsistent with the Constitution’s original meaning.
This charge is not new, and in fact the Supreme Court seems to invite it. In Seminole Tribe v. Florida and Alden v. Maine, the Court relied on the Eleventh Amendment to hold that Congress could not abrogate a state’s sovereign immunity and force it to be sued by its own citizens in federal court (Seminole Tribe), nor in the state’s own courts (Alden v. Maine). These decisions seem odd because the Eleventh Amendment declares only that the federal judicial power “shall not be construed to extend to any suit” against a state by citizens of “another” state. Yet both Seminole Tribe and Alden were suits against a state by its own citizens. And Hyatt involved the lawsuit of one state’s citizens against another state in a state court, which has nothing to do with the federal judicial power. None involves the situation contemplated by the text of the Eleventh Amendment—a suit by a citizen of one state against a different state in federal court.
Thus the Supreme Court has stated that the Eleventh Amendment is merely declaratory of a broader sovereign immunity principle not expressly stated in the Constitution’s text. It is not surprising, then, that the Court’s sovereign immunity doctrine has been repeatedly criticized as inconsistent with originalism. I agree that the Court has indeed messed up sovereign immunity doctrine. But, as I explain in my book, A Debt Against the Living: An Introduction to Originalism, the results in most of these cases are consistent with both textualism and originalism (to the extent those are different methods).
The mistake that both the Supreme Court and the opponents of its sovereign immunity cases make is to presume that the answer to this specific question must be found in the Constitution. This gets the Constitution backward. The Constitution was not adopted on a tabula rasa, but rather atop many layers of preexisting law. Sovereign immunity—the immunity of the state from a suit for money damages in court without its consent—was part of that law. As Caleb Nelson has written, sovereign immunity was part of the common law of personal jurisdiction: a court simply could not exercise power over the body of the King or the state because there was no way to force them into court or to pay money from the treasury. James Iredell in 1793 explained that this sovereign immunity was part of the law of every state of the Union prior to the adoption of the Constitution. Therefore, if nothing in the Constitution itself abrogates that immunity or gives Congress the power to abrogate it, then the states’ immunity remains intact.
This explains the Supreme Court’s holding in Chisolm v. Georgia and the subsequent adoption of the Eleventh Amendment. As Bradford Clark has written, the only textual provision in the Constitution that might abrogate state sovereign immunity is the grant of jurisdiction in Article III to the federal courts over cases between a state and citizens of another state. Thus in Chisolm the Supreme Court held that a state could in fact be sued by residents of other states in federal court. The Eleventh Amendment reversed this decision by declaring that these grants of jurisdiction in Article III “shall not be construed” to abrogate a state’s sovereign immunity. With that Amendment, there is nothing left in the Constitution by which one might argue that the Constitution itself abrogates the sovereign immunity of the states.
One might wonder what work, then, the jurisdictional grants in Article III do after the Eleventh Amendment. How can the federal courts exercise jurisdiction over a state? The answer, of course, is that a state always could consent to be sued and, in any case, states automatically waive immunity when they are plaintiffs, including in criminal cases. There are many situations in which the jurisdictional grants do work even if some of the time the states retain their immunity.
This brings us to Seminole Tribe and Alden v. Maine. The Constitution does not itself abrogate sovereign immunity—that much is clear from the Eleventh Amendment. But might the Constitution grant Congress the power to abrogate a state’s sovereign immunity? That is what Congress had attempted to do in Seminole Tribe and Alden v. Maine. Again, the Eleventh Amendment only speaks of suits by citizens of one state against another state, so it simply doesn’t address the question. The answer is to be found once more in the Constitution’s specific grants of power. Congress may have the power to create obligations on the state governments pursuant to, say, the Commerce Clause, but where does Congress get the power to abrogate a state’s sovereign immunity?
There is no enumerated power to abrogate a state’s sovereign immunity, so the answer could only be the Necessary and Proper Clause. This clause grants Congress the authority to make all laws necessary and proper “for carrying into execution” its enumerated powers (or the other powers of the national government). This clause is a grant of what is known as implied powers—powers that are incidental to and lesser than an explicitly enumerated power. Here is a colloquial example. Suppose you tell a friend she can come retrieve a book from your bookcase when you aren’t home. This explicit authorization is also a grant of certain implied powers: for example, your friend could presumably move a few books out of the way in order to find and retrieve the book in question. But what if the door to the room is locked? The authorization does not include the power to break down the door. That power would be too great—too important—such that we would expect it to be explicitly authorized. Thus in upholding Congress’s power to incorporate a national bank under the Necessary and Proper Clause, Chief Justice John Marshall wrote in McCulloch v. Maryland that the power to incorporate a bank “is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as means of executing them.”
The question thus boils down to whether abrogating sovereign immunity is a sufficiently “small” power such that Congress can do it to effectuate its other enumerated powers, or whether it is a “great substantive and independent power” that must be expressly enumerated. I am not sure the answer must be that it is the latter, but certainly the way the Founding generation viewed sovereign immunity (see their reaction to Chisolm) suggests the power to abrogate it was indeed thought to be a great and substantive power that could not be left to implication. If that’s right, then Seminole Tribe and Alden v. Maine are easy cases.
This brings us finally to Hyatt, which did not involve Article III, the Eleventh Amendment, or Congress’s enumerated powers. The Supreme Court nevertheless held that the Constitution grants the states immunity even in suits in the state courts of other states. This is a mistake. Again, the Constitution does not grant sovereign immunity to anybody. Sovereign immunity was already out there—a constitutional backdrop, as William Baude has explained—that the Constitution left in place. How, then, are we to analyze a suit against one state in the courts of another?
As Professors William Baude and Stephen Sachs explained in a friend of the court brief, the answer is likely that the Constitution leaves this entirely to the states. The state in which the suit is proceeding may by comity afford immunity to a sister state; but if it doesn’t, then the defendant-state may nevertheless refuse to enforce the judgment. This would effectively lead to the result in Hyatt in the sense that a state could ultimately maintain its immunity, but it would be up for the states themselves to work that out. This approach may not answer all the relevant questions, but it is plausible and workable.
In short, the Court’s sovereign immunity cases, including last week’s, have been maligned for being inconsistent with the original meaning. The critics are partly right: the Supreme Court has effectively made up the doctrine in these cases. But they are wrong to suggest that the results in these cases are inconsistent with the Constitution’s original meaning. Quite the opposite.