The Eleventh Amendment as Curb on Bureaucratic Power

Posted: 14 Jun 2001


Scholars frequently attack the Court's recent sovereign immunity jurisprudence on the ground that it serves no practical function. In particular, critics can identify no sensible purpose to the doctrine's distinction between private lawsuits seeking "prospective" (injunctive) relief against state governments (which are allowed under Ex Parte Young) and private lawsuits seeking "retrospective" (monetary) relief against state governments (which is barred by the principle of sovereign immunity). This Article takes issue with this objection to sovereign immunity doctrine by suggesting a practical function to the injunction-damages distinction. The doctrine might serve the function of strengthening the position of elected non-federal policy "generalists" (governors and state legislators) against appointed state bureaucrats. State agency specialists often are more loyal to their counterparts in federal agencies, because they share a professional culture, career paths, program priorities, etc. Such a state official might not resist federal agency mandates in the rule-making process, because such mandates comport with his or her own thinking about governmental priorities, and they are a good excuse for a larger budget request from the state legislature. State agency specialists, therefore, can become a surreptitious force for undermining the policy-making discretion of state legislatures and governors.

The Eleventh Amendment doctrine's distinction between damages and injunctions might possibly protect against this threat to federalism. The reason is rooted in the practical reality of budgeting. The money necessary to pay damages rarely comes out of the revenues appropriated for an agency's operations. Instead, states typically maintain some sort of "Judgments Fund" for the payment of damages award. Because damages judgments do not affect an agency's bottom line, damages are a political headache for the state legislature, which must figure out how to find the money to pay the judgment, often out of other programs' budget. By contrast, each agency must itself decide how to comply with injunctions by reallocating their existing resources. Given the practical inertia of state budgeting, the cost of the federal mandate, when enforced with an injunction, will tend to lie where it falls - on the budget of the state agency subject to a state mandate - if the mandate is enforced only by an injunction and not by damages.

By forbidding damages, sovereign immunity doctrine places a "firewall" between each state agency, insuring that federally mandated costs imposed on one state agency - perhaps with that agency's acquiescence - do not spill over on to the budgets of other rival state programs. Thus, the doctrine prevents any state agency from using federal mandates to enlarge its own budget. In this way, the states' immunity from damages might be a partial cure or at least palliative for the ill of state agency's disloyalty to the state's political leadership.

Suggested Citation

Hills, Roderick Maltman, The Eleventh Amendment as Curb on Bureaucratic Power. Available at SSRN:

Roderick Maltman Hills (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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