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Who's so Afraid of the Eleventh Amendment

Jesse H. Choper

University of California at Berkeley School of Law

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute

Columbia Law Review, Vol. 105, 2005

This Article argues that critics have exaggerated the impact and importance of the Eleventh Amendment cases. This is not to deny that revived judicial security for states' rights has become the signature issue of the Rehnquist Court. We examine whether the subject deserves the enormous importance that many, including a number of commentators and several Justices, have given it. We conclude that it does not. A series of doctrines, both internal and external to the Eleventh Amendment, allow the federal government to achieve its policy objectives. Preventing private plaintiffs from suing states for retrospective money damages poses at most a minor barrier to national goals when damages actions against state officers and injunctive actions realistically against state governments are readily available to accomplish all federal ends, and when the national political branches may widen the liability of state officers, or completely overcome sovereign immunity by joining a private lawsuit or using other federal powers such as the Spending or Treaty Clauses.

Overstatement of the effects of the Eleventh Amendment cases has obscured more interesting questions about the subject. If state sovereign immunity has such little practical effect, why has the Court invested so much of its time and resources in the Seminole Tribe line of rulings? We suggest that the Court's real lodestar here is not federalism, but separation of powers. That is, perhaps the Court is not so much interested in protecting states as it is (a) in centralizing the enforcement of federal law in the executive branch and (b) in pressing Congress to make clear cost-benefit decisions on the use of lawsuits to enforce federal policy. Seminole Tribe and its progeny have the effect of giving the administration greater discretion to decide whether states should be liable for money damages for violations of federal law, thus increasing democratic accountability, and of prodding the legislative branch to essentially pay the states to waive sovereign immunity.

Number of Pages in PDF File: 45

Keywords: Eleventh Amendment, Sovereign Immunity, Federal Courts

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Date posted: May 6, 2005  

Suggested Citation

Choper, Jesse H. and Yoo, John, Who's so Afraid of the Eleventh Amendment. Columbia Law Review, Vol. 105, 2005. Available at SSRN: https://ssrn.com/abstract=719881

Contact Information

Jesse H. Choper
University of California at Berkeley School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States

John Choon Yoo (Contact Author)
University of California at Berkeley School of Law ( email )
Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )
1150 17th Street, N.W.
Washington, DC 20036
United States
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