Sovereign Immunity, Due Process, and the Alden Trilogy

Abstract

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states' violation of federal law. The Court thus rejected the "forum allocation" interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by Congress acting through Article I. On the same day, however, the Court appeared to resurrect the forum allocation interpretation of the Eleventh Amendment with respect to a subset of federal laws: those that establish rights that constitute "property" or "liberty" within the meaning of the Fourteenth Amendment's Due Process clause. The Court in Florida Prepaid v. College Savings Bank affirmed that patents are property and that a state violates the Due Process clause when it deprives persons of such property without affording them an adequate compensatory remedy. The extent to which the Due Process principle articulated in Florida Prepaid undoes the sovereign immunity principle articulated in Alden depends on the breadth of the concepts of property and liberty. Although the third case in the Alden trilogy, College Savings Bank v. Florida Prepaid, makes it clear that not all federal rights are "property" for purposes of the Due Process clause, other cases, which the Court did not reject or even discuss, stress that the concepts of liberty and property are broad indeed. In particular, the "new property" cases define property in such a way as to include the right to accrued wages invoked by the plaintiffs in Alden. Thus, the Florida Prepaid's Due Process exception to Alden's sovereign immunity principle may be broad enough to have required a different result in Alden itself, had the exception been invoked. Alternatively, the decision in Alden, alongside that in College Savings Bank, may signal a dramatic narrowing of the Court's definition of "property" and "liberty." If so, the sovereign immunity tail is beginning to wag a large Due Process dog.

Keywords: sovereign immunity, Due Process clause, Alden, property liberty, Eleventh Amendment, Supreme Court, Fourteenth Amendment

JEL Classification: K00, K30, K39