The Supreme Court Sides with the States 3—4 Finally, because the actions of elected government officials theoretically reflect the will of the people, sovereign immunity furthers the interests of popular sovereignty by protecting state majoritarian policy preferences. Thus, courts and commentators alike have articulated a number of normative bases for why states ought to enjoy immunity from suit under federal law in our federal system.
Accordingly, in the Supreme Court first recognized, in Mt. The Court briefly considered whether a local public board of education in Ohio was entitled to state sovereign immunity in a suit by a fired school teacher. The Court considered the following to be relevant: But in another sense, both the language and legal theory of Mt. Healthy made for a new twist. Prior cases where courts had found the state to be the real party in interest were cases in which the state itself—and its treasury—arguably was the intended target of the litigation.
Healthy , U. While the basic rationale for conferring immunity upon arms of the state may seem intuitive, unfortunately, from its inception, the arm-of-the-state doctrine has lacked direction, coherence, and consistency. This has made possible the contradiction where a type of entity can be an arm of the state in one instance but not be an arm of the state in another instance, depending upon both the circuit test used and the applicable state laws governing the defendant entity. In the wake of Mt. Healthy and an analytically similar decision two years later, Lake Country Estates, Inc.
Tahoe Regional Planning Agency , 39 U. The Court determined that a bistate entity created jointly by California, Nevada, and Congress was not an arm of the state. In each case, the Court highlighted several traits of the entity in question, but the Court failed to indicate whether these traits constituted formal factors, whether its list of factors was exhaustive, or what such factors were intended to measure. To be fair, perhaps the Court did not intend to delineate a systematic framework for its arms doctrine in these cases, instead hoping lower courts would develop it.
The Court finally articulated a guiding rationale for its arms doctrine in Hess v. Port Authority Trans-Hudson Corp. It is unclear, for example, how the twin reasons function analytically in the arms inquiry. Previous courts had considered a mix of factors in one analytical step to determine whether an entity was an arm of the state. The Hess court, in contrast, appeared to consider the twin reasons as a second stage of analysis after first considering various factors, which pointed in different directions. This would seem to be the obvious reading at first blush, 46 See, e.
If this is the correct analytic reading though, it is unclear what rationale should guide the initial factor analysis prior to consideration of the twin reasons. Protecting state treasury and dignity interests may be the basis for state sovereign immunity generally, but what is the normative basis for determining what an arm of the state is? What is the prototypical example of an arm of the state against which other entities can be compared, or are state arms inherently indefinable? Pahl Zinn, Note, Hess v. Port Authority Trans-Hudson Corporation: Erosion of the Eleventh Amendment , Detroit C.
Circuit court decisions in the years since Hess have largely borne out this prediction. Even the circuits that have refashioned their arms tests in response to Hess have only done so facially, leaving their substantive analysis unchanged. The decades since Mt. Healthy have produced the following: In responding to the disarray, instead of taking the present framework as a given, this Comment pulls it apart and identifies how the present framework has failed. While not purporting to offer a single definitive, infallible test, this Comment simply suggests how arm-of-the-state jurisprudence might be set on the right track by incorporating a rationale that has hitherto largely been ignored.
To begin that discussion, this Comment first explores the inherent flaws of the current arm-of-the-state jurisprudential framework. Healthy introduced the modern arm-of-the-state doctrine, federal courts had long barred suit where the court found a state to be the real party in interest in the litigation.
Since the state is ordinarily immune from suit under the Eleventh Amendment, clever litigants might attempt to work around this obstacle by naming another individual or entity as the defendant rather than the state itself. In such cases where a monetary judgment would nonetheless inevitably draw from the state treasury, courts blocked these suits as well.
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Typically, these real-party-in-interest suits named state government officials as the defendants, 60 E. Not all suits targeting the state were barred, though. Where a private litigant sued a state officer in his official capacity for injunctive relief, which effectively is still a suit against the state, courts held such suits did not run afoul of the Eleventh Amendment. The Ex parte Young doctrine does permit prospective enforcement of federal law against a state that may result in monetary expenditures from the state, but such expenditures are considered to have only an ancillary rather than a direct effect on the treasury.
The basis for differentiating between injunctive and damages suits against a state might seem unclear at first blush, but such differentiation is consistent with the historic basis for the Eleventh Amendment. After the Supreme Court interpreted Article III of the Constitution to permit a citizen of one state to bring a suit for damages against another state in Chisholm v. Georgia , 63 2 U. For a discussion of Chisholm and its historic backdrop, see William A. Chisholm was decided in when many states found themselves grappling with Revolutionary War debt, and many lawmakers feared that, as had the plaintiff in Chisholm , more creditors would sue cash strapped state governments to collect on war debts.
This historic context led Justice Ginsburg to conclude in Hess that the primary purpose of state sovereign immunity as embodied in the Eleventh Amendment is to protect state treasuries—and taxpayer dollars—from monetary judgments so that states might be able to administer their financial affairs without the insolvency risk that private suits threaten.
Under this reading, the evil to be avoided under the Eleventh Amendment is not the possibility of any and all suits against states by private litigants but rather suits for damages. This narrative would appear to provide the conceptual basis for the arm of the-state doctrine. While not explicitly using real-party-in-interest phraseology itself, the Mt.
Healthy Court cited to a line of cases where an effort to protect the state from monetary judgments was the controlling rationale. Healthy and its progeny began to consider a variety of nonfinancial liability factors, 69 See Needle, supra note 36, at Accordingly, for decades lower courts have assigned the most weight in their arms analyses to factors that tracked the treasury-protection rationale. Conceptually, analysis under the arm of the state doctrine would appear to be straightforward: But there are two problems with making a real-party-in-interest analysis dispositive.
First, whether the state would be the real party in interest in a suit against a given entity is not necessarily an either—or calculation. Focusing only on the narrow question of whether the state would directly pay for a judgment against an entity 73 E. There are yet other ways in which a state might be financially implicated by a suit against a lesser entity. Under a broader definition of state funding that includes appropriations that an entity receives from the state 77 E. Compare Holz , F. Air Pollution Control Dist. But even if we only consider as relevant whether a state is legally responsible as opposed to practically responsible for a judgment imposed against an entity, a wide conception of legal responsibility may implicate a state treasury to various degrees.
In Regents of the University of California v. Some courts have read Regents to mean that legal liability but not practical liability matters in the analysis, e. While Regents may have foreclosed practical liability as a viable basis for Eleventh Amendment immunity, courts have construed legal liability to mean a number of different things beyond a literal reading that the state must be on the hook to directly pay the specific judgment against a given entity.
The discussion up to this point presupposes that the treasury-protection rationale—championed by Hess —is the normative basis for Eleventh Amendment sovereign immunity, let alone the arm-of-the-state doctrine, but many jurists and scholars debate that premise. A competing historic and theoretical reading of Eleventh Amendment sovereign immunity is that such immunity is intended to protect the states from suits in general, lest their sovereign dignity be affronted.
Smith, States as Nations: Dignity in Cross-Doctrinal Perspective , 89 Va. The Court acknowledged this second rationale in Hess , 85 U. See Scott Dodson, Dignity: See Hess , U. If this question has such overriding force, there is really no balance at all. If we consider the various factors courts consider in their arms analyses, we could simply decide that whereas financial factors track the treasury-protection rationale, nonfinancial factors as a matter of definition track the dignity protection rationale.
Indeed, courts have done both in their arms analyses. Such reasoning is conclusory. Not only is the Hess twin-reasons framework problematic in theory, but as lower courts have applied the framework, it has produced results that seem at odds with Mt.
Eleventh Amendment to the United States Constitution
Presumably, Hess can explain why a political subdivision like a city or county should not be considered an arm of the state: City of Pittsburgh, U. Yet the Eleventh Circuit has appeared to do what the Supreme Court has refused to do by extending sovereign immunity protection to county health departments and county sheriffs. This reasoning would warrant a conferral of sovereign immunity on political subdivisions only in certain contexts, but the Supreme Court has appeared to insist that political subdivisions are precluded from sovereign immunity categorically.
At least within some courts, though, county-level entities can be considered arms of the state. Thus in some cases, it seems the arm of the state doctrine has morphed into a fingertip-of-the-state doctrine. At the other extreme, the Seventh Circuit has held that a state lottery commission was not an arm of the state.
The State Lottery Commission of Indiana produces substantial revenue for the state rather than receiving state revenue , and presumably the commission was equipped to pay a monetary judgment itself rather than having to pass a judgment off to the state. In so concluding, the Seventh Circuit appealed to language in Hess demanding that revenue generating entities with no financial reliance on the state not be considered immune under the Eleventh Amendment.
But again, intuitively it would seem that a state commission created by state law exercising a function statewide on behalf of the state would be an arm of the state. In a case like this, the arm-of-the-state doctrine has become more of a shoulder-of-the-state doctrine. Without teasing out these two examples, it should at least be evident that such results are not intuitive. A county sheriff or health department certainly seems to occupy the political-subdivision category as Mt.
Healthy frames it, and a state commission would seem to occupy the arm category as a state agency. What should be clear is that the Hess framework, whether in theory or in application, is and has been problematic.
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To avoid these inherent problems, before courts recognize an entity as an arm of the state, they should be confident that such an entity is politically accountable to the state, lest there be no possibility of a check against its assertion of sovereign immunity. Accordingly, a political-accountability rationale needs to be incorporated into the arm-of-the-state doctrine. But is there any jurisprudential warrant for courts to do so?
In short, yes there is. Also noted at the outset is that sovereign immunity can be understood to promote democratic processes as well. When we talk about the state, we are not referring to some abstract entity but rather the citizens that comprise the state. These citizens comprise the state electorate, and the electorate collectively chooses its state lawmakers, who are responsible for passing laws, approving budgets, and appointing heads to a variety of state agencies.
The electorate, operating through the state, may decide to allocate funds so as to permit their courts to grant relief to private parties harmed by the state. If so, the state may decide to waive its sovereign immunity either in part or in whole so as to honor the claims of litigants. But if the electorate opts to allocate its limited tax resources for other purposes, the state may instead decide to preserve its immunity—perhaps resulting in lower taxes.
This option is likewise available to the state, in which case private litigation, if permitted by the courts, would force public payments in an undemocratic manner. The obvious objection to sovereign immunity is that it allows for the violation of individual rights. If a state cannot be forced to answer for its conduct unless it consents to suit, then likewise a state need not respect the rights of its citizens unless it decides to do so.
But a preference for sovereign immunity implies that we necessarily tolerate the occasional violation of individual rights in exchange for the policy benefits sovereign immunity provides. Sovereign immunity serves to protect the public by ensuring the continued availability of essential public services. Thus sovereign immunity amounts to a macro policy preference. If, in spite of the policy advantages discussed above, the doctrine of sovereign immunity still gives us pause, fortunately there is a natural check built into the system—the check of political accountability.
As Professor Harold Krent has argued, sovereign immunity gives the government the freedom to pursue policies consistent with democratic majoritarian interests, but this power is then counterbalanced by the political pressure those same democratic majorities can exert on lawmakers should the government abuse its policy discretion. Krent, Reconceptualizing Sovereign Immunity , 45 Vand. Thus, if the government, through its elected officials or otherwise, engages in behavior or pursues policies that have the effect of violating individual rights, to the extent that the people disapprove, they can check the government at the ballot box by electing new officials who will cease such behavior or change such policies.
This remedy may provide no consolation to individuals whose rights have been violated, and it does little to cure retrospective wrongs, but as a polity we make these sacrifices for the resource-allocation freedom we otherwise gain. Given this arrangement, the possibility of political accountability can be the only counterbalancing check against inequitable applications of sovereign immunity. And this check actually works. Maine , which held that a group of state probation officers seeking federally mandated overtime wages could not sue the state of Maine in state court without its consent.
Exercises of political accountability are not guaranteed to follow, of course. But the point of the political-accountability check to sovereign immunity is not that every harmed party will be vindicated but rather that the possibility of vindication via the political process exists. The electorate may well express a tacit policy preference for permitting certain rights violations to go unremedied so as to preserve the state fisc; the doctrine of sovereign immunity simply allows the majority to select such risk in exchange for reduced public costs if it so chooses.
The proposition that sovereign immunity and political accountability are two sides of the same coin is certainly not a new one—the Supreme Court has been echoing this point for years. Those who have suffered purported harms are not without recourse; they simply must seek relief from the politically accountable legislature rather than from the politically insulated courts. The Court was even more emphatic about the interplay of sovereign immunity and political process in Alden v.
Holding for the first time that a state could not be compelled to answer in its own courts for a federally-created claim, Id. Since public financial resources are scarce, the decision of how to spend those limited resources, whether to satisfy judgments or to pay for the myriad of other public expenses facing the state, should be left to the political process rather than to the courts to decide. We see these same concerns expressed in other sovereign immunity contexts as well. Maine , Leonard concludes: Otherwise, many legitimate democratic decisions cannot take effect.
Such reasoning misses the mark. Sovereign immunity is not ultimately about immunity entitlements but rather about a delicate constitutional framework undergirded by principles of federalism designed to maximally protect conditions that permit democracy. Sovereign immunity cases are about protecting that balance, and this focus should be present in the arm-of-the-state context as well. Once again, indeed there is. More forcefully, Ginsburg homed in on the treasury protection rationale in her analysis: Perhaps courts considered such analysis to be too specific to bistate entities to be of much use in more typical arm-of-the-state cases.
If a state exercises sufficient control over an entity, then the state can hold that entity accountable. Conversely, when a state does wield the kind of control over an entity allowing for meaningful accountability, this leads to the conclusion that the given entity is an arm of the state. Second, a state must wield sufficient control over an entity to allow the state to hold the entity politically accountable.
A conjunctive approach more effectively gauges whether an entity is politically accountable to the state: In contrast, if the electorate is interested but not able to hold an entity accountable, then any attempt to hold an entity accountable will be ineffectual. Only if both conditions are met are the preconditions for political accountability triggered.
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This Comment proposes that more courts follow suit. The incorporation of a political accountability rationale into the arm-of-the-state doctrine would not require a complete overhaul of the tests courts currently use or a jettisoning of all the factors they currently consider. And undoubtedly some factors courts currently consider should fall out of the analysis since it is unclear what operational rationale informs these factors.
But incorporation of a political-accountability rationale into arm-of-the-state jurisprudence would shore up the weaknesses inherent in the Hess twin-reasons framework, ultimately giving us confidence that entities dubbed arms of the state properly warrant that designation. The following discussion imagines how such a reconceived framework might function. This Part lays out a framework for how courts might determine whether a particular entity is politically accountable to the state, discussing which factors would and would not matter in that calculus.
While the two elements previously sketched are both necessary to this framework—state interest and state control—there is less rigidity to how and which factors should be evaluated under each element. There may be factors or considerations hitherto not considered by the courts—or this Comment—that prove relevant to the calculus, and a court could determine that certain factors warrant more or less weight than others. This Comment should ultimately be understood as the beginning of the conversation rather than the last word.
The following discussion first examines a threshold inquiry concerning which entity a court should examine when conducting its arms analysis. Finally, Part IV closes by considering factors measuring whether the state exercises sufficient control over an entity for political accountability purposes. Before examining in closer detail the two elements previously sketched, a threshold question in any arm-of-the-state analysis must be resolved: The obvious answer would be the entity being sued.
Yet, while not considering this threshold question formally, courts frequently consider traits of larger parent entities when determining the arm status of the formally named defendant. On the one hand, such analysis would seem disingenuous—it would seem such courts may examine the traits of a parent entity simply because the court might be dissatisfied with the expected result should it only confine its analysis to the traits of the formally named defendant. But on the other hand, the real-party-in-interest doctrine, from which the arm-of-the-state doctrine developed, counsels that a court should determine who the real defendant is rather than just who the nominal defendant is.
A clever litigant could target a sub-entity whose parent entity the litigant knows full well is an arm of the state. Thus courts should identify the proper entity to be examined. In making that determination, courts should identify the greatest single institutional unit whose head officer or board of officers exercises full discretionary authority all the way down the chain of command. In some cases a court should consider the central state agency to be the relevant entity even though a branch office may be the target of the suit. For example, if a state police department exercised full discretionary control over all its police posts, it would not make sense for a court to examine an individual post as a distinct entity.
The permitted conduct and policies of any individual police post would likely be indicative of policy statewide, and therefore a court should consider the statewide entity as a whole. While a single branch office could engage in questionable conduct, if the parent entity truly exercises centralized control, then such branch conduct would be a function of the policies of the parent entity that permits such conduct. In other cases, a court should not examine a larger parent entity as the relevant entity if a confederated governing structure connects variously situated entities.
In this case, each sub-entity really would be its own governing unit and the proper point of focus. Put more concisely, this question asks whether the state is interested in holding the entity politically accountable. This question does not concern whether the state, its current leaders, or the statewide electorate do in fact care about the conduct in question, or whether they approve or disapprove.
The following factors effectively gauge state interest. But as the discussion in Part II. Having previously reserved the question of whether federal statutory rights could be enforced in state courts, 37 the Court in Alden v. Both Seminole Tribe and Alden were also 5—4 decisions with the four dissenting Justices maintaining that Hans was wrongly decided. This now-institutionalized 5—4 split continued with Federal Maritime Commission v. South Carolina State Ports Authority , 40 which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies.
The operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of A great deal of the difficulty in interpreting and applying the Eleventh Amendment stems from the fact that the Court has not been clear, or at least has not been consistent, with respect to what the Amendment really does and how it relates to the other parts of the Constitution.
One view of the Amendment, set out above in the discussion of Hans v. That view finds present day expression. Jordan , 44 in which the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit 47 becomes conceptually difficult, as it is not possible to confer jurisdiction where it is lacking through the consent of the parties. Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: But upon entering the Union the states surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but that is more than their coequal.
Outside the area of federal court jurisdiction, Nevada v. Hall , 58 perfectly illustrates the difficulty. Although it recognized that the rule during the framing of the Constitution was that a state could not be sued without its consent in the courts of another sovereign, the Court discerned no evidence in the federal constitutional structure, in the specific language, or in the intention of the Framers, that would impose a general, federal constitutional constraint upon the action of a state in authorizing suit in its own courts against another state.
Within the area of federal court jurisdiction, the issue becomes the extent to which the states upon entering the Union gave up their immunity to suit in federal court. Chisholm held, and enactment of the Eleventh Amendment reversed the holding, that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v.
Louisiana and subsequent cases held that the Amendment in effect codified an understanding of broader immunity to suits based on federal causes of action. Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government. Despite the apparent limitations of the Eleventh Amendment , individuals may, under certain circumstances, bring constitutional and statutory cases against states.
In other cases, the Eleventh Amendment does not apply because the procedural posture is such that the Court does not view them as being against a state. As discussed below, this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where the res , or property in dispute, is in fact the legal target of a dispute. Because Eleventh Amendment sovereign immunity inheres in states and not their subdivision or establishments, a state agency that wishes to claim state sovereign immunity must establish that it is acting as an arm of the state: The immunity of a state from suit is a privilege which it may waive at its pleasure.
A state may expressly consent to being sued in federal court by statute. In a few cases, the Court has found a waiver by implication, but the vitality of these cases is questionable. One of the two primary grounds for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, enacted some 20 years previously, the state had effectively accepted the imposition of the Act and consented to suit.
Further, even if a state becomes amenable to suit under a statutory condition on accepting federal funds, remedies, especially monetary damages, may be limited, absent express language to the contrary.
Superfund and the Eleventh Amendment: Are the States Immune from § Suits?
A state may waive its immunity by initiating or participating in litigation. Barnard , 85 the state had filed a claim for disputed money deposited in a federal court, and the Court held that the state could not thereafter complain when the court awarded the money to another claimant. However, the Court is loath to find a waiver simply because of the decision of an official or an attorney representing the state to litigate the merits of a suit, so that a state may at any point in litigation raise a claim of immunity based on whether that official has the authority under state law to make a valid waiver.
If a state voluntarily agrees to removal of a state action to federal court, the Court has held it may not then invoke a defense of sovereign immunity and thereby gain an unfair tactical advantage. The Constitution grants Congress power to regulate state action by legislation. At least in some instances when Congress does so, it may subject the states themselves to suit by individuals to implement the legislation. The clearest example arises from the Civil War Amendments, which directly restrict state powers and expressly authorize Congress to enforce these restrictions through appropriate legislation.
In the case of Pennsylvania v. Twenty-five years earlier the Court had stated that same principle, 93 but only as an alternative holding, and a later case had set forth a more restrictive rule. The dissenters disputed each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, would have held that no such power existed under Article I. Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.
Section 5 of the Fourteenth Amendment , of course, is another matter. In another line of case, a different majority of the Court focused not so much on the authority Congress used to subject states to suit as on the language Congress used to overcome immunity. Indeed, at one time a plurality of the Court apparently believed that only if Congress refers specifically to state sovereign immunity and the Eleventh Amendment will its language be unmistakably clear.
Even before the decision in Alden v. Courts may open their doors for relief against government wrongs under the doctrine that sovereign immunity does not prevent a suit to restrain individual officials, thereby restraining the government as well. Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law.
Plaintiff railroad stockholders brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt.
If the Supreme Court had held that the injunction was not permissible, because the suit was one against the state, there would have been no practicable way for the railroads to attack the statute without placing themselves in great danger. In deciding Young , the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party.
Two of the leading cases, as were many cases of this period, were suits attempting to prevent Southern states from defaulting on bonds. Jumel , a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds.