Sovereign immunity, due process, and the Alden trilogy.

• Author: Vazquez, Carlos Manuel

On the last day of the Supreme Court's 1998 Term, the Justices delivered their opinions in Alden v. Maine(1) from the bench with great drama, reportedly holding spectators spellbound for close to an hour.(2) The Court's holding in that case that the doctrine of sovereign immunity protects states from being sued in their own courts without their consent even on federal claims has been the subject of much commentary, most of it unfavorable.(3) What has received less attention is that, in another decision handed down the same day, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,(4) the Court reaffirmed a competing principle that may contain the seeds of Alden's substantial undoing. The Court in Florida Prepaid held that the states' sovereign immunity is subject to the Due Process Clause, which requires a state to provide a remedy to individuals when it willfully deprives them of liberty or property in violation of federal law. When property or liberty is at stake, in other words, the rule appears to be the opposite of what the Court held in Alden: The state is required to provide individuals a remedy in its own courts.

How far the due process principle undoes the sovereign immunity principle depends in large part on how the Court defines "liberty" and "property." A third decision handed down that day, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,(5) makes it clear that the concept of "property" is not so capacious as to undo Alden's sovereign immunity principle entirely. College Savings Bank holds that not all violations of federal statutes that entitle individuals to damages deprive individuals of property. But earlier precedent that the Court did not mention or purport to disturb indicates that "liberty" and "property," though not "infinite,"(6) are "broad and majestic" in scope.(7) "In a Constitution for a free people," the Court has said, "there can be no doubt that the meaning of `liberty' must be broad indeed."(8) And "[t]he Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money."(9) Indeed, under these precedents, the due process principle appears to be broad enough to have required the opposite result in Alden itself, had the principle been invoked in that case. In other words, Florida Prepaid, in conjunction with extant precedent regarding the meaning of "property," suggests that the Due Process Clause required Maine to afford Alden the remedy that the Court in Alden held Maine would otherwise have been entitled to deny on sovereign immunity grounds.

The claim that the principle reaffirmed in Florida Prepaid substantially undoes the principle articulated in Alden is of course in tension with the widespread belief that Alden was an important decision. The Alden majority itself at one point sought to downplay the practical significance of its holding by pointing to mechanisms left open for enforcing the federal legal obligations of the states--mechanisms such as suits against the states by the federal government,(10) private suits seeking prospective relief,(11) and private suits seeking damages from state officials in their individual capacities.(12) These mechanisms, not to mention Congress's power to procure state waivers of immunity through its spending power, diminish the practical importance of Alden's holding that private damages actions against the states are unavailable in state as well as federal courts. But the majority's stated reasons for unconcern did not include the Due Process Clause's guarantee of a remedy against the states in certain cases. The claim that Florida Prepaid largely undoes Alden is also inconsistent with the apocalyptic nature of the remarks of the dissenting Justices, both in their opinions and from the bench. This Essay suggests that, if Alden is significant, its significance may lie in the changes that it portends for due process doctrine. If, under current understandings of "liberty" and "property," the due process principle largely undoes the sovereign immunity principle, Alden's strong articulation of the sovereign immunity principle may reflect a repudiation of those understandings.

It is possible that the Court's decision in Alden reflects neither its conscious articulation of an insignificant sovereign immunity principle nor its intention to repudiate due process doctrine that would otherwise render its holding insignificant. A third possibility is that the Court decided these cases without fully working through the implications of its decision for collateral doctrine, even doctrine implicated in decisions handed down the same day.(13) If that is what happened, this failure to work through the ramifications of one case for another may have been caused in part by the fact that (1) the three cases were briefed and argued separately by different lawyers, (2) each of the opinions in the trilogy was assigned to a different Justice, and (3) perhaps most importantly, the litigants in Alden failed to invoke the due process principle.

Part I of this Essay examines what Alden tells us about the nature of state sovereign immunity. I conclude that the Court rejected the "forum-allocation" interpretation of the Eleventh Amendment, and implicitly adopted what I have called the "immunity-from-liability" interpretation, under which the states are immune from being subjected to damage liability to individuals.(14) College Savings Bank confirms that this is how the Court now understands state sovereign immunity. Part II discusses the nature of the due process principle reaffirmed in Florida Prepaid. I conclude that, although the due process regime contemplated in Florida Prepaid for remedying violations of liberty and property may differ from the forum-allocation regime in nontrivial ways, it is fair to characterize Florida Prepaid as a partial resurrection of the forum-allocation regime. Finally, I consider in Part III the extent to which last Term's decisions, primarily College Savings Bank, retreat from the broad definition of property that the Court had articulated in earlier cases. The Court's approach to property in College Savings Bank clearly reflects a change from its approach in past cases, but just how far the Court has retreated remains unclear, primarily because the reasons the Court gave for its conclusion that the College Savings Bank plaintiff was not suing to enforce a property interest were unpersuasive and internally inconsistent.

If last Term's decisions do signal a dramatic narrowing of the scope of the property and liberty protected by the Due Process Clause, they show that the sovereign immunity tail is beginning to wag a very large due process dog. To accommodate its holdings denying individuals certain remedies against states, the Court may have substantially narrowed concepts that trigger very basic procedural rights. If these decisions do not reflect a conscious decision to move due process doctrine in this direction, the decisions' principal legacy may be a far more complex, and far less coherent, sovereign immunity and due process doctrine. Although sovereign immunity doctrine has often been criticized as inconsistent with rule-of-law aspirations because it leaves some rights without corresponding remedies, the Court's latest decisions suggest that this doctrine's most problematic feature from a rule-of-law perspective may be its bewildering complexity.

1. ALDEN AND THE ADOPTION OF THE IMMUNITY-FROM-LIABILITY VIEW

   In Hans v. Louisiana,(15) the Court held that the Eleventh Amendment protects states from being sued in federal court even for violations of federal obligations. The holding has been controversial because of the rule-of-law problem it appears to create.(16) The Eleventh Amendment, so interpreted, appears to violate two related requirements of the rule-of-law ideal: that there be a legal remedy for the violation of a legal right,(17) and that the judicial power be coextensive with the legislative.(18) The Constitution imposes numerous legal obligations on the states and gives Congress the power to impose additional ones, but the Eleventh Amendment, as interpreted in Hans, protects the states from being sued by private parties in the federal courts for violating such obligations. Scholars and dissenting Justices have argued that the Eleventh Amendment, properly construed, limits Article III's diversity grants of jurisdiction insofar as they confer jurisdiction in certain suits against states, but does not limit the grant of federal-question jurisdiction,(19) and that Hans was accordingly wrongly decided. If so interpreted, the Eleventh Amendment would be unproblematic from a rule-of-law perspective. The Court came close to overruling Hans in Welch v. Texas Department of Highways & Public Transportation,(20) and in Pennsylvania v. Union Gas(21) it arguably did overrule Hans, for all practical purposes,(22) when it held that Congress has the power to abrogate Eleventh Amendment immunity pursuant to Article I. But the Court emphatically reaffirmed Hans three Terms ago when it overruled Union Gas in Seminole Tribe v. Florida.(23) According to the majority in Seminole Tribe, Congress has the power to abrogate Eleventh Amendment immunity pursuant to Section 5 of the Fourteenth Amendment, but not pursuant to "antecedent provisions of the Constitution."(24)

   Until the past Term, a different line of cases promised a different, but nearly as satisfying, escape from the rule-of-law problems posed by Hans. Relying on Cohens v. Virginia,(25) in which the Supreme Court held that the Eleventh Amendment does not limit the Supreme Court's appellate jurisdiction over cases against states litigated in the state courts, even if the state did not consent to federal review, scholars had read the Court's Eleventh Amendment cases as establishing that the amendment grants merely an immunity...