Restoring Congress's Authority Under Article I To Abrogate the States' Eleventh Amendment Immunity: A Remedy That Is Long Overdue

Abstract

For over two centuries, Congress had the authority to enact laws that provided meaningful monetary relief for individuals who were injured by states due to discrimination, violations of intellectual property rights, and other state actions that were within Congress’s power to legislate. That authority did not change until 1996, when the Supreme Court held in Seminole Tribe of Florida v. Florida that the Eleventh Amendment established a constitutional right to state sovereign immunity that trumped Congress’s authority under Article I of the Constitution.

The Eleventh Amendment was ratified in 1795 to protect the states’ common-law immunity from suit and, in numerous decisions over the next two hundred years, the Supreme Court recognized sovereign immunity as a common-law privilege. This recognition was based on the intent of Hamilton-Madison-Marshall and several other key supporters of the Constitution as well as the Framers of the Eleventh Amendment. Not until the Supreme Court’s decision in Seminole Tribe did the Court hold that the Eleventh Amendment established an immutable constitutional right to state sovereign immunity that overrode Congress’s authority under Article I. As this Article will show, Seminole Tribe rested on a flawed interpretation not only of the history of the Eleventh Amendment and the sovereign immunity principle, but also the text of both Article III of the Constitution and the Eleventh Amendment itself.

While Congress still has the authority under the post-Civil War Amendments to protect injured parties from state action through “appropriate legislation,” the Court has placed restrictions on laws passed under the authority of these Amendments if they abrogate state immunity from suit. These restrictions have caused landmark legislation, including the Americans with Disabilities Act and the Age Discrimination in Employment Act, to be struck down. As a result, injured parties must seek recourse under state laws that often fail to provide adequate relief. These major federal laws would likely have been sustained if sovereign immunity were recognized as a common-law principle, rather than a constitutional limit on Congress’s authority.

In the past two years, the Supreme Court has retreated from Seminole Tribe by creating exceptions to the limitations on the federal government’s power to abrogate state immunity. Those rulings raise serious doubt about the Court’s willingness to adhere to the reasoning in Seminole Tribe. We advocate overruling Seminole Tribe with some workable safeguards on Congress’s Article I authority to protect the federal-state balance of power.

Keywords: Constitutional Law, Federalism, Eleventh Amendment, Seminole Tribe, sovereign immunity, Article I of the Constitution, Article III of the Constitution, common law privilege, immutable

JEL Classification: K40, K41, K49