Pleading sovereign immunity: the doctrinal underpinnings of Hans v. Louisiana and Ex Parte Young.

• Author: Kian, Sina

INTRODUCTION I. SOVEREIGN IMMUNITY: THE POLITICAL NARRATIVES OF HANS V. LOUISIANA A. Sovereign Immunity: A Crash Course B. Torts Versus Contracts: A Misstep II. THE COMMON LAW PLEADING SYSTEM A. Common Law Framework." A Case Study B. Madrazo Revisited C. Marshall Court: Continued D. The Pattern Continues E. The Bondholder Cases F. Federal Sovereign Immunity: The Same Thing G. Hans v. Louisiana: A No-brainer H. Ex Parte Young III. IMPLICATIONS (BRIEF) CONCLUSION INTRODUCTION

The Eleventh Amendment states plainly: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (1) Despite decades of vociferous debate, (2) this seemingly docile text has eluded even the most valiant efforts to produce scholarly consensus. (3)

Hans v. Louisiana (4) and Ex parte Young (5) are two of the most important pillars bracing sovereign immunity law. (6) They are also the two most misunderstood. Hans is widely accepted as standing for a simple proposition: the Eleventh Amendment precludes citizens from bringing suits against their own states. Practically every discussion of Hans implicitly yet erroneously assumes that the decision represented some sort of departure from prior case law. Moreover, scholars and judges currently understand Hans as a decision that, in interpreting the Eleventh Amendment, either obfuscated its text or illuminated its soul. Hans does neither or, at least, it meant to do neither. Hans was not an atextual exegesis of the Eleventh Amendment; it was not even a reading of the Eleventh Amendment. More importantly, and contrary to conventional wisdom, Hans was consistent with every sovereign immunity case that preceded it. Hans was, in fact, a mundane application of a remarkably consistent set of common law doctrines.

Current accounts of Ex parte Young uniformly overlook the indispensable role played by these doctrines. The lore surrounding Ex parte Young is by now cliche the Court employed a novel "legal fiction" that treated an officer as a state actor for purposes of the Fourteenth Amendment, yet as a private individual for purposes of the Eleventh. (7) The result was a supposedly new, somewhat nebulous cause of action. Recently, John Harrison argued that

Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a novel cause of action under the Constitution or other federal law, and it does not create a paradox by treating officers as state actors for one purpose and private persons for another. (8) He is right, but for the wrong reasons. In describing Hans and Ex parte Young, contemporary narratives commit the same underlying sin: they do not consider how of the substance of sovereign immunity law was shaped by circumstances of common law procedure.

This Note argues that judges and scholars have overlooked the procedural centerpiece of sovereign immunity: the common law pleading system. The rules of pleading interacted with substantive doctrines of law to create a system of remedies universally familiar to lawyers of the nineteenth century. The dynamics were simple but counterintuitive. If the victim of a state-sanctioned wrong brought suit against an officer, then the common law was initially unconcerned with the defendant's status as a state official. For purposes of pleading, he could be a sailor, chariot chauffeur, or chair salesman; as long as there was personal jurisdiction over the defendant, he could not escape the court's jurisdiction merely by asserting his status as an officer. However, in responding to the plaintiff's declaration, the defendant was then allowed to plead to the jurisdiction, arguing his actions were authorized by the state and hence shielded by sovereign immunity. This did not automatically close the matter. If the Constitution barred the state from providing such authorization, then the court would ignore the unconstitutional authorization and pierce the state immunity shield that otherwise protected officers.

This seemingly trivial pleading sequence was the mainspring behind sovereign immunity, and we have forgotten it. As a result, the two most important cases in sovereign immunity law have been rather dramatically misunderstood. Part I of this Note recapitulates how modern scholars have characterized Hans--understanding this mischaracterization will later, in Part VI, allow us to understand the governing dynamics undergirding Ex parte Young. Part II describes the fundamentals of sovereign immunity. Part III addresses a somewhat appealing but ultimately misguided approach to immunity doctrine, which is based on a distinction between torts and contracts. Part IV introduces the common law pleading system and the relevant doctrines that complemented its role in sovereign immunity. Part V applies this framework to a detailed chronology of nineteenth-century immunity cases. Part VI argues that Hans v. Louisiana and Ex parte Young were predictable applications of this framework. And finally, this Note concludes briefly with some possible implications of our new understanding.

1. SOVEREIGN IMMUNITY: THE POLITICAL NARRATIVES OF HANS V. LOUISIANA

   The jurisprudence surrounding the Eleventh Amendment has been criticized from every angle, particularly for its apparent departure from text. (9) Hans v. Louisiana has been indicted as the cardinal culprit; it is often described as a doctrinal turning point, (10) a blatant textual contradiction, (11) and an opinion that simply got it wrong. (12)

   There is no doubt that Hans departed from the plain language of the Eleventh Amendment. The Eleventh Amendment rather lucidl"provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit ... commenced ... against one of the United States by citizens of another state." (13) However, in plain contradiction of this language, the Court unanimously concluded that citizens could not bring suits against their own states under federal question jurisdiction, (14) a situation clearly not contemplated by the mere words of the Eleventh Amendment.

   In explaining these cases, legal historians have taken a cynical approach. John Orth, a leading Eleventh Amendment scholar, argues that Hans can be explained by the postbellum political climate. (15) After the Compromise of 1877--where Democrats agreed to support Rutherford B. Hayes as president in exchange for Northern withdrawal of troops from the South (16)--the Court manipulated the text of the Eleventh Amendment in order to emancipate the South from claims brought by its creditors. (17)

   Orth is not alone. John Gibbons also explains Hans by alluding to "popular pressure that actually dictated [the] ultimate decision." (18) Edward Purcell goes further, arguing Hans should not be dignified as a valid precedent. (19) He contends that the Court was essentially forced to abandon its "general position [of] guaranteeing the worth of government bonds" by two factors: (1) the determination of many Southern state governments to repudiate their debts, and (2) the notion that sectional reconciliation was perceived as the "highest good." (20) In the words of another scholar, "the Court was faced with the unpalatable choice of abandoning accepted Contract Clause doctrine or establishing the potentially crippling precedent of state non-compliance with Supreme Court judgments." (21) In other words, these scholars posit that Hans was the Court's attempt to preserve the delicate political equilibrium that was beginning to form after the bitter years of war and Reconstruction. To meet this end, and to avoid widespread state noncompliance with federal court decisions, the Court was forced to contradict not only the Eleventh Amendment but also its own precedent. (22)

   The Court had apparently traded the literal words of the Eleventh Amendment (23) for the greater good of political tranquility or, at worst, political convenience. (24) Whatever the particulars of each narrative, scholars seem to agree that the history of the Eleventh Amendment "is in large measure an unflinchingly political one." (25) With the bulk of scholarly commentary focusing on Hans as the outgrowth of a political situation, it is no surprise that this view has seeped into contemporary Court decisions. (26)

   This approach is misleading. The political climate may or may not have facilitated the Court's immunity jurisprudence. What it did not do is mark a shift in the application of that jurisprudence. Hans v. Louisiana was a predictable case, consistent with every sovereign immunity case that came before it. So too was Ex parte Young.

   When contemplating state immunity, contemporary scholars have often unduly limited their discussion to one about the Eleventh Amendment. (27) When scholars do consider sovereign immunity as an independent doctrine, they typically focus on the origins of such a doctrine. Martha Field advanced a relatively straightforward argument: sovereign immunity existed as a doctrine of common law, which was neither ratified nor rejected by the grants of jurisdiction in Article III. (28) More recently, Caleb Nelson insightfully argued that sovereign immunity was ultimately derived from principles of personal jurisdiction. (29) This suggests that courts were powerless to instruct states to appear before them.

   The strength of this scholarship is that it disentangles sovereign immunity from the Eleventh Amendment and treats it as a separate doctrine. The concern here is not with an "objective" analysis of what sovereign immunity is or whence it came. (30) Rather, this Note attempts a doctrinal history as told by the nineteenth-century Court opinions--this means, as we will see, separating sovereign immunity from Eleventh Amendment immunity. More importantly, it means placing state...