STATE IMMUNITY FROM FEDERAL LAW

By the end of the 1980s, Congress enjoyed virtually plenary power to create and enforce regulations of state governmental activities. The Supreme Court had interpreted the commerce clause power of Congress quite expansively; had rejected claims that federalism principles (sometimes loosely but inaccurately labeled " tenth amendment principles") prevent Congress from imposing generally applicable regulations on states; and had rejected claims that eleventh amendment principles prevent Congress from enforcing those regulations by authorizing private suits against noncomplying states in federal court. In the 1990s, however, one of the hallmarks of the Court's jurisprudence has been a renewed commitment to securing states sovereign immunity from the application and federal court enforcement of certain forms of congressional dictates.

In addition to reminding Congress in united states v. lÓpez (1995) that its commerce clause power is not plenary, the Court began to reimpose some limits on the regulatory authority of Congress over state activity. In the mid-1980s, the Court had declared in garcÍav. san antonio metropolitan transit authority (1985) that the proper forum in which states should seek protection from direct regulation is Congress and not the courts. But in gregory v. ashcroft (1991), the Court altered the existing federal–state balance of power by employing a "clear statement rule" of statutory interpretation. The Court announced that it would interpret federal statutes not to apply to traditional government functions unless Congress made its intent to do so "unmistakably clear." The next year, in new york v. united states (1992), the Court held that while Congress may wield various sticks and carrots to encourage states to enact federally desired regulations, Congress may not simply "commandeer" states to enact regulations designed to accomplish national objectives. The Court then extended this anticommandeering rule in Printz v. United States (1997), holding that Congress may not conscript state executive officials to implement federal regulatory programs. In each of these three cases, the Court invoked the concept of "dual sovereignty" in justifying some limit on the authority of Congress to regulate the states directly, rather than merely to regulate persons and entities within the territorial boundaries of states.

Even where García still affords Congress regulatory authority over state activities as part of more generally applicable statutes, the Court has further protected the principle of state sovereignty during the 1990s by refortifying the Eleventh Amendment. Ever since Hans v. Louisiana (1890) more than a century ago, the Court has interpreted the Eleventh Amendment to preclude federal courts from entertaining private suits that assert claims arising under federal law against unconsenting states. By the end of the 1980s, the Court had conceded that Congress retained the authority to override this erstwhile Eleventh Amendment immunity pursuant either to its power under the fourteenth amendment, section 5to enforce the guarantees of that amendment, fitzpatrick v. bitzer (1976), or its power to regulate interstate commerce, Pennsylvania v. Union Gas (1989). In Seminole Tribe v. Florida (1996), however, the Court overruled Union Gas and held that Congress could not authorize private enforcement actions against states in federal court pursuant to its Article I grants of power. The Court felt that such a broad congressional authority was incompatible with the Hans -based tradition of state sovereign immunity. Thus, even when Congress may impose generally applicable regulatory burdens pursuant to its Article I powers on both state and private actors alike, Congress must rely primarily on state courts to vindicate private federal causes of action against the state. And while the Court did not disturb its previous conclusion in Bitzer that Congress may override state sovereign immunity pursuant to its section 5 power to enforce the fourteenth amendment, the Court subsequently narrowed the substantive scope of this power in Boerne (City of) v. Flores (1997), thus circumscribing the Bitzer exception. To be sure, since ex parte young (1908) the Court has qualified the scope of the Eleventh Amendment by allowing private plaintiffs to seek prospective relief against state officials to rectify ongoing violations of federal law. The fiction here is that such suits are really against the officials rather than "the state." But in Seminole Tribe as well as Idaho v. Coeur d'Alene Tribe (1997), the Court somewhat narrowed this exception as well.

The Court's justifications for its recently renewed commitment to protecting state autonomy from some forms of direct congressional regulation and most forms of federal judicial enforcement have been criticized as excessively formalistic. Neither the regulatory nor judicial immunity doctrines are persuasively grounded in constitutional text; the regulatory immunity does not even purport to be text-based, and the Court has all but admitted that its broad interpretation of Eleventh Amendment immunity runs counter to the plain meaning of the words. The Court's various claims of support from historical intentions and understandings fare better by comparison, but are far from conclusive.

At bottom, the Court grounds both doctrines in what it calls the structural principle of "dual sovereignty" asserted to underlie our constitutional framework. This principle suggests that states and the federal government are coequal sovereigns, implying that each sovereign should be immune from regulation by the other. But this claim of coequal status ignores the competing constitutional principle of federal supremacy. Neither principle can be considered in isolation: as Chief Justice john marshall put it long ago, states are "members of one great empire—for some purposes sovereign, for some purposes subordinate." And as the García Court more recently conceded, "to say that the Constitution assumes the continued role of the States is to say little about the nature of that role." Thus the Court's recent formalist efforts to derive its regulatory and judicial immunity doctrines from the principle of dual sovereignty obscure various normative judgments that necessarily guide its decisions. And yet the Court has failed to provide a careful discussion of the various federalism values either served or disserved by its immunity doctrines.

These doctrines might plausibly be viewed as second-best methods of policing the general boundaries of the Article I regulatory authority of Congress. The Court has lamented the tremendous post–new deal expansion of the power of Congress to regulate interstate commerce, but has simultaneously found it difficult to limit this power through defensible doctrinal lines. The immunity doctrines, while not directly tailored to the concerns about congressional omnicompetence, at least provide readily enforceable mediating principles that constrain Congress to some degree and proclaim a resounding symbolic victory for state sovereignty.

Evan H. Caminker
(2000)

(see also: Constitutional History, 1989–1998; Dual Federalism.)

Bibliography

Caminker, Evan H. 1995 State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law? Columbia Law Review 95:1001–1089.

——1997 Printz, State Sovereignty, and the Limits of Formalism. Supreme Court Review 1997:199–248.

Jackson, Vicki C. 1988 The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity. Yale Law Journal 88:1–126.

Meltzer, Daniel J. 1996 The Seminole Decision and State Sovereign Immunity. Supreme Court Review 1996:1–65.

Powell, H. Jefferson 1993 The Oldest Question of Constitutional Law. Virginia Law Review 79:633–689.

Prakash, Saikrishna B. 1993 Field Office Federalism. Virginia Law Review 79:1957–2037.

VÁsquez, Carlos Manuel 1997 What Is Eleventh Amendment Immunity? Yale Law Journal 106:1683–1806.