The irony of immunity: the Eleventh Amendment, irreparable injury, and Section 1983.

• Jurisdiction: United States
• Date: 01 May 2001
• Author: Karlan, Pamela S.

INTRODUCTION

There's a famous story about a sign outside a fishmonger's shop saying "Fresh Fish Sold Here." A grammarian persuades the owner to erase each of the words: "Here" is unnecessary, because it's obvious where the shop is; if the fish weren't "fresh," no one would buy them; "sold" ... well, no one could think the store was giving merchandise away; and "fish" is superfluous--one can smell the wares from far off. The Supreme Court has done something rather similar to the Eleventh Amendment.(1) In Hans v. Louisiana,(2) the Court effectively removed the words "of another State," and two Terms ago, in Alden v. Maine,(3) the Court hacked off another four words--"of the United States." There's something fishy here too. In holding that Congress could not use its Article I powers to subject states to private suits in their own courts,(4) Justice Kennedy's opinion for the majority declared that

the fact that the Eleventh Amendment by its terms limits only "[t]he Judicial power of the United States" does not resolve the question [whether states enjoy sovereign immunity in lawsuits brought in their own state courts]. To rest on the words of the Amendment alone would be to engage in the type of a historical literalism we have rejected in interpreting the scope of the States' sovereign immunity since the discredited decision in Chisolm [v. Georgia].(5) On the same day that it announced Alden, the Court also decided a pair of cases involving Congress' ability to use Section 5 of the Fourteenth Amendment to subject states to suit without their consent. (The scope of Section 5 had become a key question after the Court's 1996 decision in Seminole Tribe v. Florida(6) stripped Congress of its power under the Commerce Clause to abrogate states' sovereign immunity in federal court.) In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank(7) (Florida Prepaid) and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board(8) (College Savings Bank) the Court held that Congress' explicit abrogation of states' sovereign immunity under the Patent and Plant Variety Protection Remedy Clarification Act(9) and the Trademark Remedy Clarification Act(10) exceeded its Section 5 power. In the first case the Court held that Congress had failed to show a sufficient danger that state patent infringements were depriving patent holders of their property interests without due process of law, and in the second case the Court found that no Due Process Clause-protected property interest was implicated at all. Earlier in the Term, in Kimel v. Florida Board of Regents,(11) the Court struck down Congress' attempt to abrogate states' sovereign immunity under the Age Discrimination in Employment Act (ADEA),(12) and this Term, the Court held that Congress cannot authorize private damages suits against states under the Americans with Disabilities Act (ADA).(13)

Decisions like Alden, Seminole Tribe, Kimel, Garrett, and the Florida Prepaid cases seem momentous.(14) The Court appears to be dramatically restricting Congress' ability to regulate state government behavior in a variety of key activities such as employment and the use of intellectual property. And yet, as Henry Monaghan and John Jeffries have pointed out in a series of insightful articles,(15) the main effect of the Court's Eleventh Amendment decisions has not been to preclude litigation against the states altogether, but rather to force such claims into lawsuits against state officials either under the Ex parte Young(16) fiction (if the plaintiffs seek injunctive relief) or under 42 U.S.C. [sections] 1983.(17)

The purpose of this piece is not to rehash the arguments developed by Monaghan and Jeffries, but rather to ask what the implications of a robust interpretation of the Eleventh Amendment are for litigation under Ex parte Young or [sections] 1983. My basic premise is that there is a paradox at the heart of the Court's Eleventh Amendment jurisprudence: The very mechanism by which the Court seeks to enhance federalism and state autonomy may in fact channel litigation into a form that imposes greater constraints on state action.

I begin by focusing on the distinction between Congress' Article I power to regulate state economic activity and its Section 5 power to abrogate state immunity from private lawsuits. I then identify a key consequence of the states' Eleventh Amendment immunity: it wipes out the possibility of an adequate damages remedy for the intended beneficiaries of congressional regulation. Thus, the Eleventh. Amendment creates the potential for an irreparable injury. The threat of an irreparable injury is precisely the circumstance that justifies injunctive relief under both Ex parte Young and [sections] 1983. That injunctive relief may turn out to be far broader and more intrusive than the damages that would have been available after the fact, both because it may involve more invasive judicial supervision of state entities and because some of the defenses that would be available in after-the-fact litigation, most notably qualified immunity, are unavailable in cases seeking prospective relief.

1. CONGRESSIONAL POWER TO REGULATE AND CONGRESSIONAL POWER TO ABROGATE

   Alden involved a dispute between a group of probation officers and their employer, the state of Maine, over whether the state was obligated to pay overtime under the federal Fair Labor Standards Act (FLSA).(18) There was no real controversy about Congress' power to regulate the hours worked and wages received by state employees. That the FLSA was an appropriate use of the Commerce Clause was settled as early as United States v. Darby,(19) and that it could be applied to state government workers was decided by Garcia v. San Antonio Metropolitan Transit Authority.(20) Accordingly, "Maine ha[d] not questioned Congress' power to prescribe substantive rules of federal law to which it must comply"(21) and had brought its practices into conformity with the FLSA's requirements.

   Similarly, nothing in the Florida Prepaid case suggested that states enjoy carte blanche to infringe on patents. The Court recognized that patents created constitutionally protected property interests.(22) And it acknowledged that protecting those interests against infringement was a "proper Article I concer[n]."(23) Where Congress had erred was in creating a private cause of action under the Fourteenth Amendment Due Process Clause without an adequate basis for believing states would infringe patents intentionally and without providing an adequate state-law remedy, the touchstones of a Due Process Clause violation.(24)

   The general ability of Congress to regulate economic activity, even economic activity conducted by state and local governments, is both well-settled and noncontroversial. In EEOC v. Wyoming,(25) the Supreme Court upheld the extension of the ADEA--the statute at issue in Kimel--to most state and local employees.(26) And the day after its decision in Kimel, in Reno v. Condon,(27) the Court unanimously upheld the Drivers' Privacy Protection Act (DPPA),(28) which regulated the states' dissemination of drivers' license and motor vehicle registration information, as a proper use of the commerce power. Indeed, it was because the Court saw the DPPA as acting on states directly--"rather than `seek[ing] to control or influence the manner in which States regulate private parties'"(29)--that it shielded the DPPA from a Tenth Amendment challenge.

   Part III of the Court's opinion in Alden was devoted to reiterating that

   [t]he constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design.(30) What Seminole Tribe and Alden did was to create a distinction between Congress' general power to regulate states using its Article I powers--which, with the relatively slight restriction imposed by United States v. Lopez,(31) remains virtually plenary, at least in any economic arena(32)--and its more precise power to accomplish regulatory goals by creating private rights of action. The bottom line is that there are now a number of situations in which Congress' power to regulate exceeds its power to authorize private enforcement--in any court--of rights it has conferred on individuals. Abrogation of sovereign immunity is now limited to situations in which Congress can use its enforcement power under the Fourteenth Amendment,(33) and, after City of Boerne v. Flores,(34) that power is circumscribed by the requirement that there be a demonstrable "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."(35) Thus, absent a substantial danger of widespread unconstitutional behavior by the states, Section 5-based abrogation is unavailable.

   Even after City of Boerne, Seminole Tribe, and Alden, however, there is still substantial latitude for lawsuits to enforce congressional regulatory regimes.(36) First, states may consent to suit. That consent might simply reflect a state's agreement to waive its immunity because of its "sense of justice."(37) But Justice Kennedy also identified some less gratuitous forms of consent. Congress might extract consent to suit from a state as the price of receiving a federal benefit.(38) Or Congress could--as it did with the FLSA--authorize enforcement suits brought by the federal government itself.(39) And those suits may seek essentially the same relief that normally would be available in a private lawsuit, namely, restitution of unpaid wages.(40) The key difference is that lawsuits brought on behalf of the United States--in addition to not being covered by the explicit text of the Eleventh Amendment--reflect "the exercise of political responsibility."(41)

   ...