December 27, 2023 | SCOTUS Issues Term’s First Decision – Finds ADA Case Moot
|Introduction: Chisholm v. Georgia (1793)
|In the aftermath of the American Revolution, many debts were left unpaid. One individual, Robert Farquhar, sued the state of Georgia for money due to him. The state, however, refused to show up. It claimed that, as a sovereign entity, it could not be sued unless it explicitly agreed to be sued. This notion of sovereign immunity, in general, was not unfamiliar in American law. In the United Kingdom, the monarchs had long had this protection. By definition, the crown was the law. It was simply non-nonsensical for it to be brought to court under allegations that it violated the law. Georgia made the argument, therefore, that an individual citizen could not sue Georgia in federal court. Without Georgia’s consent, it asserted, the federal courts did not have the authority to adjudicate the case.However, the Supreme Court, in Chisholm v. Georgia (1793) rejected the idea that sovereign immunity extended to the individual states. Instead it ruled that Article III, the provision of the Constitution establishing the federal courts, essentially acted as a blanket waiver of state sovereign immunity. Meaning, by ratifying the Constitution, the states had actually given up whatever immunity they may have enjoyed previously.
|Chisholm v. Georgia (1793)
|State Sovereign Immunity
|The result of Chisholm v. Georgia (1793) was the 11th Amendment. With the knowledge that the Constitution not only did not protect state sovereign immunity – but actually nullified it – the country quickly ratified this first post-Bill of Rights addition to the Constitution. It states as follows: “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States by citizens of another state, or by citizens or subjects of any foreign state.”In other words, Chisholm was superseded. Individual states could no longer be defendants in federal court in cases prosecuted by citizens from other states.
|Exceptions to the 11th Amendment: Waiver, Agency, and Congressional Abrogation
|The 11th Amendment, however, has never truly enjoyed the kind of sweeping effect it was, perhaps, meant to enjoy. In fact, today, states are regularly sued in federal court for a number of reasons.First, states can consent to be sued or waive their sovereign immunity. In fact, the Supreme Court has actually held that simply by invoking what is known as “removal jurisdiction” (a process in litigation by which parties seek to move a case from a state court to a federal court), a state automatically waives its sovereign immunity. In Lapides v. Board of Regents of University System of Georgia (2002), the Georgia public university system was brought to state court. But it voluntarily sought to remove the case to federal court. Therefore, it waived whatever immunity the 11th Amendment may have otherwise granted it.
Second, the 11th Amendment has been interpreted to only apply to states as states. In other words, when an individual sues a state officer, agent, or employee, it may do so. This exception is so powerful, that even where a state officer appears to be acting on behalf of the state itself, it may still be sued. In Ex parte Young (1908), the Attorney General of Minnesota was sued for carrying out a railroad-related law passed by Minnesota. The law itself was unconstitutional. The Court held that since, under the Supremacy Clause, the Constitution overrides state laws, a state official acting in the name of an unconstitutional state law is not acting on behalf of a state at all. The law is a nullity. Therefore, the individual is acting on his own. Mr. Young, the Attorney General, was able to be sued in federal court.
Third, and perhaps most significantly, Congress may – in some instances – override the immunity established by the 11th Amendment. Most often, this has meant that Congress can act within its authority to legislate under the enforcement provision of the 14th Amendment, and abrogate state sovereign immunity in states relating to that enforcement. For example, in Fitzpatrick v. Bitzer (1976), the Court examined a Congressional act giving individuals the power to sue states in federal court over violations of Title VII of the Civil Rights Act (which prohibits discrimination). Title VII was passed pursuant to the Equal Protection Clause of the 14th Amendment. The 14th Amendment, the Court held, was specifically passed to constrain state authority – to prevent them from being able to discriminate and to give the federal government the power to act toward that goal. The Court ruled that the 14th Amendment overrode the 11th Amendment, and the lawsuit provision of Title VII was therefore constitutional.
Obviously, even though Congress may abrogate 11th Amendment immunity when acting to enforce the 14th Amendment, if Congress itself does not act within its own authority to legislate under the 14th Amendment, then the abrogation of immunity is also unconstitutional. In other words, if Congress passes a law which it asserts is to enforce the 14th Amendment – but happens to step beyond whatever enforcement power is given to Congress by that amendment, then despite whatever abrogation of immunity Congress may have included in the law, no such abrogation is considered to have taken place.
The standard under which Congress has the authority to legislate to enforce the 14th Amendment is known as the Congruence and Proportionality Test. For the purposes of the 11th Amendment, the meaning of that test is only tangential (see the 14th Amendment, Section 5). However, by way of example, in Nevada Department of Human Resources v. Hibbs (2003), the Supreme Court held that Congress passed the Congruence and Proportionality Test in enacting the Family Medical Leave Act – and therefore, the abrogation of 11th Amendment immunity included in a provision of the FMLA was also constitutional. However, in Board of Trustees of the University of Alabama v. Garret (2001), the Court held that Congress allowing state employees to sue employers in federal court over the Americans with Disabilities Act (ADA) did not meet the Congruence and Proportionality Test, and was therefore unconstitutional.
Beyond the 14th Amendment, though, it is unclear as to whether other provisions of the Constitution also allow Congress to abrogate sovereign immunity. For example, in Seminole Tribe of Florida v. Florida (1996), the Court held that Congress did not have the authority to abrogate state sovereign immunity under its Article I powers. This ruling was again followed in Alden v. Maine (1999). However, in Central Virginia Community College v. Katz (2006), the Court held that Congress abrogating state sovereign immunity under the Bankruptcy Clause, a provision of Article I was constitutional.
Still, Congressional abrogation of state sovereign immunity is most often evident in 14th Amendment cases.
|Ex parte Young (1908)
Fitzpatrick v. Bitzer (1976)
Seminole Tribe of Florida v. Florida (1996)
Alden v. Maine (1999)
Board of Trustees of the University of Alabama v. Garrett (2001)
Lapides v. Board of Regents of University System of Georgia (2002)
Nevada Department of Human Resources v. Hibbs (2003)
Central Virginia Community College v. Katz (2006)