The Eleventh Amendment as curb on bureaucratic power.

• Author: Hills, Roderick M., Jr.

INTRODUCTION

Almost no one has any kind words for the Eleventh Amendment(1) jurisprudence of the Rehnquist Court. In particular, most scholars maintain that the Court's Eleventh Amendment decisions serve no useful function. Whatever its credentials as correct expositions of text, original understanding, or precedent, the doctrine (according to the prevalent view) does not serve any of the functions of federal regimes in any sensible way.

Does Eleventh Amendment jurisprudence deserve this obloquy? One of its weaknesses is that the Court has not offered any convincing functional justifications for its decisions in this area, preferring to rest the case for Eleventh Amendment immunity on original understanding and judicial precedent.(2) To be sure, the Court maintains that its decisions are rooted in the general "structure" of federalism. However, as I explain in Part I below (following in the footsteps of others), the Court has no persuasive argument for why federalism as a general matter should entail the byzantine tangle of rules and exceptions that have sprung from the Court's decisions in Hans v. Louisiana(3) and Ex Parte Young(4) and blossomed luxuriantly since Seminole Tribe of Florida v. Florida.(5) The purpose of this article is to fill the gap by offering a tentative functional defense of this doctrine. For the purposes of this article, I am not interested in justifying the doctrine in terms of text, precedent, or original understanding. There is voluminous literature debating the legitimacy of the doctrine in terms of these criteria to which I am neither able nor willing to contribute. Instead, I will focus on what I call the functional question: Is there any reason to believe that the Eleventh Amendment doctrine enunciated by the Court serves the functions of federal regimes in a cost-effective way? A caution is in order here. I am not arguing that the functional benefits of Eleventh Amendment doctrine are somehow the cause of that doctrine or that the Court actually had these benefits in mind when it devised the doctrine. Instead, I assume that it is a fortuitous accident that Eleventh Amendment doctrine serves any useful function. I identify the benefits of the doctrine not as causal explanation but as ex post normative justification. In short, it is possible that the Court through no virtue of its own stumbled on a handy way to protect federalism.

I believe that there may be such a functional justification of the doctrine, a justification that I will tentatively set forth in this article. I emphasize that the argument is tentative, for it rests on empirical claims that have a certain intuitive plausibility, but must be taken as only anecdotally supported plausible hypotheses worthy of further investigation. The virtue (if any) of the argument is that it has been overlooked and might provide some functional justification for a doctrine that has attracted almost nothing but contempt.

My idea is this: Eleventh Amendment doctrine might serve the function of strengthening the position of elected nonfederal policy generalists--that is, politicians with nonspecialized jurisdiction like mayors, governors, state legislators, city councilors, and county commissioners--from the threat of "picket fence federalism." The phrase is meant to suggest the image of vertical posts and horizontal slats of a picket fence, with the slats representing levels of government--federal, state, local--and the posts representing functional specialties of various agencies--environmental protection, worker safety, support for indigent families, health care, housing, etc. The idea behind the metaphor is that state and federal agency experts within the same specialty--the "posts" in the "fence"--often share more in common with each other than they do with the level of government by which they are employed. The head of a state's department of environmental quality, for instance, shares a professional culture with his or her counterpart in the federal Environmental Protection Agency; such a state official welcomes rather than fears federal environmental mandates, because they 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 policymaking discretion of elected nonfederal generalists like state legislators, city councilors, county commissioners, mayors, and governors. The state bureaucrat cannot be trusted to lobby vigorously against federal mandates in the federal administrative process. If an important function of intergovernmental lobbying is to insure that state and federal administrative agencies do not lose sight of values like state autonomy as a result of tunnel vision, then picket fence federalism is a threat to effective intergovernmental relations.

The Eleventh Amendment doctrine's distinction between damages and injunctions might make sense as an effort to counteract this threat. The reason is rooted in the practical reality of budgeting. As I argue in Part II (B), state politicians have more reason to fear picket fence federalism when it results in damages rather than injunctions. The reason is that, given state constitutional and statutory rules on budgeting, the money necessary to pay damages rarely comes out of the revenues appropriated for an agency's operations. Instead, states either require the agency to make a specific budget request to the state legislature to pay the judgment, or the state legislature maintains some sort of "Judgments Fund" analogous to the federal judgments fund for the payment of damage awards. In either case, damages judgments do not affect an agency's bottom line: The agency typically does not--and may not--transfer funds appropriated for, say, personnel or equipment to pay off a judgment. Instead, damages are a political headache for the state legislature, which must figure out how to find the money to pay the judgment. By contrast, agencies must themselves decide how to comply with injunctions by reallocating their existing resources away from state goals and towards federal goals. Given the practical inertia of state budgeting, the cost of the federal mandate 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.

Given this description of the budgeting process, Eleventh Amendment sovereign immunity might serve the useful purpose of preventing state agencies from using federal mandates to impose costs on the rest of the state budget. The state legislature and governor have little control over the damages liability that state agencies might incur (and even encourage), but they have some capacity to cabin the fiscal harm done from injunctions by refusing to appropriate extra money to cover the cost of such injunctions and requiring the agency to deduct the cost of federal mandates from their existing appropriation. By acting as a firewall against state agencies' consumption of money beyond their own appropriation, Eleventh Amendment immunity acts as a partial cure or at least palliative for the ill of picket fence federalism.

How convincing is this argument? I leave that for the reader to decide. For my part, as I explain at greater length in Part III, I am only partially persuaded by it. It has a lot of moving parts and requires a lot of merely plausible assumptions. Moreover, the Eleventh Amendment does not apply to private causes of action to enforce "cross-cutting" conditions on federal grantsin-aid, which arguably pose a far greater threat of advancing picket fence federalism. I offer the argument not so much to recruit supporters for the Eleventh Amendment doctrine than to suggest a different way of thinking about federalism (and the Constitution in general)--one more attuned to the empirical realities of politics and government and less concerned with the "etiquette" of federalism or the danger of a symbolic smudge on states' "dignity."

1. THE APPARENT PRACTICAL USELESSNESS OF ELEVENTH AMENDMENT DOCTRINE

   It is now a standard scholarly move to attack federalism jurisprudence as excessively "formalistic."(6) As I have argued elsewhere, this accusation usually does not stick: What at first glance seems like formalism in Printz v. United States(7) actually practically serves useful functions. The Eleventh Amendment cases, however, are an embarrassment to defenders of judicially enforced federalism like myself, because, at least at first glance, they really do seem like mindless formalism--that is, a bunch of byzantine rules and exceptions signifying nothing except a weirdly anthropomorphic desire to protect states' "dignity" without any account of how state "dignity" is implicated by that which the doctrine forbids.

   In particular, from a functional point of view, there are two problems with the doctrine. First, it seems strange to allow the federal government to impose duties on the state governments and yet restrict the means by which Congress can effectively enforce those duties. Second, it is difficult to explain why Congress should be able to give private persons the power to sue states for injunctions but not for money damages. I will elaborate on these two criticisms in the two sections that follow.

   1. Why Give Congress Powers to Pass Laws But Deny Them the Means to Enforce Such Laws?

      As other commentators have noted, the weirdest aspect of Eleventh Amendment doctrine is that it does not deny Congress the power to regulate either private persons or even state governments. Instead, the doctrine simply limits Congress' power to use certain means to enforce such statutes that Congress has undoubted power to enact. For this reason, the Eleventh Amendment doctrines seem fundamentally different from either the doctrine of enumerated powers enforced in United States v. Lopez(8) or...