Federal Jurisdiction

26 October

• So Hans was an exercise in construction to fix an apparent shortcoming in 11A. And Young seems to undermine it, so how do we fix that problem? Four ways:
  1. Edelman: a distinction between prospective and retrospective relief. This balances the interests put at odds by Young. See, e.g., Milliken v. Bradley: Miliken was the governor of MI, but it's obvious that the remedy wasn't going to come from his pocket-- this was an expensive injunction. Note that this was about a statutory right (time limits in the welfare laws), not a constitutional right as Young (which was a Due Process case). Anyway, we want to get out of awards for damages, but the remedies granted might still cost a bunch of money.
  2. Pennhurst (p. 455) - the Young device is only available for violations of federal law not state. Some of the claims here were pendant jurisdiction (i.e., arising out of a common nucleus of operative fact). So, you can't do this with supplemental jurisdiction (§ 1367), because the point of Young is to balance sovereign immunity with the supremacy of federal law: no federal law, no interest in vindicating its supremacy. There's no constitutional entitlement to pendant jurisdiction-- it was a common-law right which was later codified.

     Note that the dissent (Stevens) argues that this isn't a federalism problem: the federal courts are helping the states enforce their own laws. This would fix the problem of forcing defendants either to bifurcate their claims or forfeit their state claims. So the dissent claims there's a strong federal interest, whereas the majority says it's non-existent.

     Remember that this is a question about whether the state can have the defense of sovereign immunity, not whether there's jurisdiction. There is jurisdiction here, and the state can consent to be sued, but they can get out of it (by this exception to the Young doctrine) if they don't want the help.

     But basically the federal court isn't as expert on interpreting state law, and there'd be no recourse to the state supreme court if they get it wrong, and they can't view the state's competing priorities for funds (in this case for care of institutionalized persons).

  3. Idaho v. Coeur d'Alene: actions for quiet title to land. The state's land is even more protected than the state's money, basically.
  4. Seminole: when a federal statute lays out detailed, specific remedies, those can statutorily displace the Young device. Similar logic, in a way to Yakus: when congress creates a statutory right, it can controle the procedure for its enforcement (normally states would be excluded from dealing with tribes altogether, so when they're included, congress can specify access to remedies).
  Young is a kind of pragmatic compromise: we want sovereign immunity, but sometimes we also need to correct problems. So we allow this fiction of naming the official in their capacity, but we limit the damage it can do. We pretty much consider Young to be a legal fiction. If we were to believe that Young was actually true, a state actor can't really violate state law-- the minute you act outside of state law (ultra vires), then immunity vanishes.

  Could there be more limitations? Maybe so-- Couer d'Alene came as a surprise. Or maybe Young would be overruled: people don't like the patchwork of sovereign immunity law, and so one option is just to wipe it out.

• Abrogation: congress has the power to take away a state's sovereign immunity when it does so explicitly ("unmistakeably clear statement of intent in the text:" Atascadero). Just creating a law that makes a state liable is not sufficient-- congress has to also specify that the state can be sued in federal court.

  No tricky devices here (a la Young and Edelman): we're just outright using the statute, ot case law.

• Fitzpatrick v. Bitzer
  So is § 5 of 14A special in any way (i.e., as a sovereign-immunity trumping machine)? Which of congress's powers let it abrogate sovereign immunity? Is legislative power sufficient, or does it require something like 14A?

  So we keep seeing this idea from Hamilton that the states came to the constitutional convention with their sovereignty intact, and we keep wondering what specifically they gave up by joining the union. We decide on a statute-by-statute basis whether the source of the statute is strong enough to abrogate state sovereign immunity. 13A, 14A, and 15A seem to be bigger surrenders-- they are about creating liability on the part of the states towards individuals. The idea of federalism at the time of the founding was different than it was post-Civil War.

  We ask two questions:

  1. Did Congress have this power?
  2. Did Congress exercise the power?
  Is the commerce power sufficient? Union Gas says yes, but that was a very fractured decision, and we get better information from Seminole.
• Lovers of the diversity theory (contra Hans) tend to support abrogation: if congress has gone through the special Atascadero-satisfying immunity, we can say that even though states have their sovereign immunity, it can still be abrogated. In other words, if you don't like Hans, and you can't get it overruled, you would want a strong abrogation power. Possibly, in other words, Seminole is really an expression of pro-diversity and anti-Hans sentiment.
• Seminole
  A repositioning back to the idea that 14A is special, in terms of abrogation powers. The Indian Commerce power is not sufficiently strong.
• Does § 1983 abrogate sovereign immunity? These are constitutional rights, after all, so there's not explicit abrogation in the constitution itself. Without § 1983, we'd have to use the Young device. The rights are incorporated against the states, of course, but can § 1983 give us a cause of action without resorting to Young or being limited only to prospective relief?

  No, you can't do that. For one thing, it's not unmistakeably clear: the state is not a "person" (which is what 14A says). It's not good enough language to satisfy Atascadero.

  Because of Hans, violation of a constitutional right alone is not enough to get you past sovereign immunity. Congress has the power to abrogate, but for that we'd need a statute that satisfies Atascadero, and § 1983 is insufficient.

28 October

• Alden v. Maine
  Garcia overruled National League of Cities (1976) (this is Con Law I stuff). They're both FLSA cases, regarding minimum wage issues. 11A only applies to the state and arms of the state: not cities, etc.

  Political safeguards of federalism: congress is in the best position to decide whether states should be liable under this or that statute. That Garcia was a 5-4 split, but the basic outcome was that there wasn't a major role for the judiciary in protecting the states-- congress is best situated for deciding what should be left to the states.

  But after Seminole, we see that states might be immune to suits in federal courts based on statutes enacted under at least some congressional powers (including the commerce clause, it would seem: there's more federal power in the Indian commerce clause than the interstate commerce clause). But Alden is a state court claim, and it gets kicked out too: the powers delegated to congress do not include the power to subject states to suits for damages in state courts.

  In Seminole the rule was that the power given to congress under the Indian commerce clause, under which the Indian Gaming Law was passed, was not enough to overcome state sovereign immunity. Congress tried, in other words, but it was not enough.

  So the plaintiffs file in state court here, Seminole said that the scope of the power delegated to congress was limited, and so a suit in federal court couldn't proceed. And so in Alden we learn that that power can't expose states to suit in state court either.

  So, in Seminole, the question was: what is the scope of the commerce power? And the answer there is that it was negative. But back to Alden, how does 11A get them out of this claim? The state can be regulated, under the commerce power, by the FLSA (we learned that in Garcia). So the states are covered by this law, but they can't be sued. How is it the rule of law to say that the state can be regulated by FLSA, but can't be sued under it?

  Timeline ------[S]---------------C------[s]-------------> The future

  So states had some properties, including sovereign immunity, prior to the ratification of the constitution. And after the constitution they have something less, because they have delegated some powers to the federal government. So the question is what and how much have they given up? Well, that was Seminole, anyhow: they didn't really give up so much. And note that 11A isn't on that timeline: whatever immunity is, it's not created by 11A-- it's something that inheres in the states.

  But back to why 11A blocks this suit even in state court: it's because sovereign immunity means not being subject to suit BY INDIVIDUALS. They could still be sued by the department of labor. The states are still subject to regulation by the federal government, just not by private attorneys general.

• And Federal Maritime Commission v. South Carolina State Ports Authority drives this home: immunity applies in administrative proceedings as well.
• Sovereign immunity is about who can bring a suit: not individuals, whether that's in federal, state, or administrative court. 11A is written the way it is because it's about obliterating Chisholm, but the amendment is worded the way it is in order to convey the impression that Chisholm was always wrong-- it's not that sovereign immunity was present before it, went away, and then was re-created by 11A.

  So we're not talking about jurisdiction-- we're talking about immunity. And it was always there; it's an inherent thing about sovereigns.

• Katz
  So somehow we get around the sovereign immunity problem here without using abrogation. Basically, the bankruptcy clause succeeds where the commerce clause did not. The states surrendered their sovereignty with respect to at least this aspect of bankruptcy (i.e., in rem jurisdiction for federal courts) in the plan of the convention.

  We look for "what the states have surrendere in the plan of the convention."

• Problem 8-6
  The commerce power isn't going to work: no suits for damages (could use the Young device to get prospective relief.

  But we've got some other clauses implicated here: war power and the power to raise and support an army.

  14A would work (that's Fitzpatrick). It's those other two powers (war and army-raising) that are interesting. Did congress get the power to abrogate under those powers? Before Katz we might think that Seminole applied to all of Article I, but now we know that the door is open for some Article I powers to bypass immunity.

  So what you'd want to do is look at the language in Katz and see if you can find parallels with the war power. And discuss the strength of the war power. And look at the Atascadero standard to see if the statute even tries to abrogate (but note, following Katz, that certain powers trump immunity without needing to worry about the standard for abrogation).