Constitutional Law Spring 2008 Prof. Fischer

1. Constitutional LawSpring 2008Prof. 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