Download this Paper Open PDF in Browser

The Supreme Court's Confusing State Sovereign Immunity Jurisprudence

62 Pages Posted: 29 Aug 2007 Last revised: 31 Mar 2014

Edwin S. Fruehwald

Independent

Abstract

Beginning in 1996, the conservative majority of the Rehnquist Court created a broad sovereign immunity for states from suits for money damages in both federal and state courts. In these cases, the Court asserted that Congress could not abrogate this sovereign immunity through its Article I powers. In later cases, the Court analyzed possible circumstances when Congress could negate this immunity under ยง5 of the Fourteenth Amendment, producing inconsistent answers. Then, in 2006, the Court reversed its total rejection of Congress's ability to extinguish the states' sovereign immunity under Congress's Article I powers when it held that Congress could abrogate a state's sovereign immunity under the Bankruptcy Clause. This abrupt reversal brings into question the Court's entire sovereign immunity jurisprudence. This paper will reexamine the Court's state sovereign immunity jurisprudence in light of this latest development.

Keywords: constitutional law, federalism, sovereign immunity

Suggested Citation

Fruehwald, Edwin S., The Supreme Court's Confusing State Sovereign Immunity Jurisprudence. Drake Law Review, Vol. 56, No. 2, 2008; Hofstra Univ. Legal Studies Research Paper No. 07-24. Available at SSRN: https://ssrn.com/abstract=1009593

Paper statistics

Downloads
320
Rank
79,959
Abstract Views
972