Sovereign immunity in the United States
Encyclopedia
Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort
. Foreign governments enjoy immunity from suit, as provided in the Foreign Sovereign Immunities Act
.
, the federal government
has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. See Gray v. Bell, 712 F.2d 490, 507 (D.C. Cir. 1983). The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act
, which waives the immunity if a tort
ious act of a federal employee causes damage, and the Tucker Act
, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not as broad waivers of sovereign immunity as they might appear, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction
on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.
Congress has also waived sovereign immunity for patent infringement claims under 28 USC § 1498(a), but that statute balances this waiver with provisions that limit the remedies available to the patent holder. The government may not be enjoined from infringing a patent, and persons performing work for the government are immune both from liability and from injunction. Any recourse must be had only against the government in the United States Court of Federal Claims. In Advanced Software Design, the Federal Circuit expanded the interpretation of this protection to extend to private companies doing work not as contractors, but in which the government participates even indirectly.
, the Supreme Court of the United States
held that the Eleventh Amendment
re-affirms that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak, the court explained that
(Citations omitted). In Alden v. Maine
, the Court explained that while it has
Writing for the court in Alden, Justice Anthony Kennedy
argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."
However, a "consequence of [the] Court’s recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Ins. Co. of N. Y. v. Chatham County (emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County, and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency.
County and municipal officials, when sued in their official capacity, can only be sued for prospective relief under Federal law.. Under state law, however, the Court in Pennhurst noted that even without immunity, suits against municipal officials relate to an institution run and funded by the state, and any relief against county or municipal officials that has some significant effect on the state treasury must be considered a suit against the state, and barred under the doctrine of sovereign immunity.
, Title 42, Section 2000d-7 explicitly says this.
The Supreme Court decision of Board of Trustees of the University of Alabama v. Garrett
seems to nullify this; however, numerous appellate court cases, such as Doe v. Nebraska in the 8th Circuit
and Thomas v. University of Houston of the 5th Circuit
have held that, as long as the state entity receives federal funding, then the sovereign immunity for discrimination cases is not abrogated, but voluntarily waived. Since the receiving of the federal funds - such as FAFSA and affirmative action
- was optional, then the waiver of sovereign immunity was optional. If a state entity wanted its sovereign immunity back, all they have to do in these circuits is stop receiving federal funding.
However, the 2nd Circuit
does not share this ideal. Currently, they are the only federal court of appeals to take this approach to the issue.
held that sovereigns are not immune under the Federal Arbitration Act
. Since arbitration is a matter of contract between the parties, agreeing to participate in arbitration constitutes consent to be subject to the arbitrator's jurisdiction, thus constituting a voluntary waiver of immunity.
Under Article III, Section 2 of the United States Constitution, the Supreme Court of the United States has original jurisdiction over cases between states. Congress, if it so chooses, may grant lower federal courts concurrent jurisdiction over cases between states. However, as of yet, Congress has not chosen to do so. Thus, the United States Supreme Court currently has original and exclusive jurisdiction over cases between state governments.
. The Court has openly called this "stripping doctrine" a legal fiction
. Therefore, a citizen may sue an official under this "stripping doctrine" and get around any sovereign immunity that that official might have held within his or her position within a state.
When a citizen uses this exception, they can't include the state in the suit: they have to list specifically the official's name. They also can't seek damages from the state, because they can't list the state as a party. However, the citizen can seek prospective, or future, relief by asking the court to direct the future behavior of the official.
For example, Ex parte Young
allows federal courts to enjoin the enforcement of unconstitutional state (or federal) statutes on the theory that "immunity does not extend to a person who acts for the state, but [who] acts unconstitutionally, because the state is powerless to authorize the person to act in violation of the Constitution." Althouse, Tapping the State Court Resource, 44 Vand. L. Rev. 953, 973 (1991). Pennhurst State School and Hospital v. Halderman (465 U.S.) ("the authority-stripping theory of Young is a fiction that has been narrowly construed"); Idaho v. Coeur d'Alene Tribe of Idaho
("Young rests on a fictional distinction between the official and the State"). The Young doctrine was narrowed by the court in Edelman v. Jordan
, which held that relief under Young can only be for prospective, rather than retrospective, relief; the court reasoned that the Eleventh Amendment's protection of state sovereignty requires the state's coffers to be shielded from suit. Prospective relief includes injunctions and other equitable orders, but would rarely include damages
. This limitation of the Young doctrine "focused attention on the need to abrogate sovereign immunity, which led to the decision two years later in Fitzpatrick." Althouse, Vanguard States, supra, at 1791 n.216
For more details, "constitutional torts" 42 U.S.C. § 1983
allows state officials to be sued in their individual or official capacities, a principle which was demonstrated again in Brandon v. Holt, 469 U.S. 464 (1984).
, but not intentional wrongs, of government employees. The common-law tort
doctrine of respondeat superior
makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy. See Brandon v. Holt.
Under the abrogation doctrine
, while Congress cannot use its Article I powers to subject states to lawsuits in either federal courts, Seminole Tribe v. Florida
, or a fortiori its own courts, Alden, supra, it can abrogate a state's sovereign immunity pursuant to the powers granted to it by §5 of the Fourteenth Amendment
, and thus subject them to lawsuits. Seminole, supra; Fitzpatrick v. Bitzer
. However:
To the surprise of many observers, however, the Court has found that somewhat different rules may apply to Congressional efforts to subject the states to suit in the domain of federal bankruptcy law. In Central Virginia Community College v. Katz
, the Court held that state sovereign immunity was not implicated by the exercise of in rem jurisdiction by bankruptcy courts in voiding a preferential transfer to a state. Justice Stevens, writing for a majority of five (including Justice O'Connor, in one of her last cases before retirement, and Justices Souter, Ginsburg, and Breyer), referred to the rationale of an earlier bankruptcy decision, but relied more broadly on the nature of the bankruptcy power vested in Congress under Article I. "The question", he stated, "[was] not whether Congress could 'abrogate' state sovereign immunity in the Bankruptcy Act (as Congress had attempted to do); rather, because the history and justification of the Bankruptcy Clause, as well as legislation enacted immediately following ratification, demonstrate that [the Bankruptcy Clause] was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena." In reaching this conclusion, he acknowledged that the Court's decision in Seminole Tribe and succeeding cases had assumed that those holdings would apply to the Bankruptcy Clause, but stated that the Court was convinced by "[c]areful study and reflection" that "that assumption was erroneous". The Court then crystalized the current rule: when Congressional legislation regulates matters that implicate "a core aspect of the administration of bankrupt estates", sovereign immunity is no longer available to the States if the statute subjects them to private suits.
It is worth noting that the Court in Central Virginia Community College v. Katz
added this cryptic caveat to their holding: "We do not mean to suggest that every law labeled a 'bankruptcy' law could, consistent with the Bankruptcy Clause, properly impinge upon state sovereign immunity". It is quite possible the Court has anticipated a significant narrowing of the doctrine.
, certain claims of monetary damages against the United States are exempt from sovereign immunity. These cases are heard by the United States Court of Federal Claims
, or, for cases involving less than ten thousand dollars, a district court has concurrent jurisdiction
.
Examples of contracts where immunity is waived include:
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. Foreign governments enjoy immunity from suit, as provided in the Foreign Sovereign Immunities Act
Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act of 1976 is a United States law, codified at Title 28, §§ 1330, 1332, 1391, 1441, and 1602-1611 of the United States Code, that establishes the limitations as to whether a foreign sovereign nation may be sued in U.S. courts—federal or state...
.
Federal sovereign immunity
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. See Gray v. Bell, 712 F.2d 490, 507 (D.C. Cir. 1983). The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act
Federal Tort Claims Act
The Federal Tort Claims Act or "FTCA", , is a statute enacted by the United States Congress in 1948. "Federal Tort Claims Act" was also previously the official short title passed by the Seventy-ninth Congress on August 2, 1946 as Title IV of the Legislative Reorganization Act, 60 Stat...
, which waives the immunity if a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
ious act of a federal employee causes damage, and the Tucker Act
Tucker Act
Through the Tucker Act , the United States government has waived its sovereign immunity with respect to certain lawsuits....
, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not as broad waivers of sovereign immunity as they might appear, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.
Congress has also waived sovereign immunity for patent infringement claims under 28 USC § 1498(a), but that statute balances this waiver with provisions that limit the remedies available to the patent holder. The government may not be enjoined from infringing a patent, and persons performing work for the government are immune both from liability and from injunction. Any recourse must be had only against the government in the United States Court of Federal Claims. In Advanced Software Design, the Federal Circuit expanded the interpretation of this protection to extend to private companies doing work not as contractors, but in which the government participates even indirectly.
State sovereign immunity
In Hans v. LouisianaHans v. Louisiana
Hans v. Louisiana, , was a decision of the United States Supreme Court determining that the Eleventh Amendment prohibits the citizen of a U.S. state to sue that state in a federal court.-Facts:The plaintiff, Hans, was a citizen of the state of Louisiana...
, the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that the Eleventh Amendment
Eleventh Amendment to the United States Constitution
The Eleventh Amendment to the United States Constitution, which was passed by the Congress on March 4, 1794, and was ratified on February 7, 1795, deals with each state's sovereign immunity. This amendment was adopted in order to overrule the U.S. Supreme Court's decision in Chisholm v...
re-affirms that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak, the court explained that
- we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."
(Citations omitted). In Alden v. Maine
Alden v. Maine
Alden v. Maine, 527 U.S. 706 was a decision by the Supreme Court of the United States about whether the United States Congress may use its Article One powers to abrogate a state's sovereign immunity from suits in its own courts, thereby allowing citizens to sue a state without the state's...
, the Court explained that while it has
- sometimes referred to the States’ immunity from suit as “Eleventh Amendment immunity[,]” [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.
Writing for the court in Alden, Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."
However, a "consequence of [the] Court’s recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Ins. Co. of N. Y. v. Chatham County (emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County, and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency.
Tribal sovereign immunity
Generally speaking, Native American tribes enjoy immunity from suit—in federal, state, or tribal courts—unless they consent to suit, or unless the federal government abrogates that immunity.Foreign sovereign immunity
Local governmental immunity
Counties and municipalities are not entitled to sovereign immunity. In Lincoln Country v. Luning, 133 U.S. 529 (1890), the Court held that the Eleventh Amendment does not bar an individual's suit in federal court against a county for nonpayment of a debt. (By contrast, a suit against a statewide agency is considered a suit against the state under the Eleventh Amendment. See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945)). In allowing suits against counties and municipalities, the Court was unanimous, relying in part on its "general acquiescence" in such suits over the prior thirty years. William Fletcher, a professor of legal studies at Yale University, explains the different treatment on the ground that in the nineteenth century, a municipal corporation was viewed as more closely analogous to a private corporation than to a state government. Fletcher, note 2.County and municipal officials, when sued in their official capacity, can only be sued for prospective relief under Federal law.. Under state law, however, the Court in Pennhurst noted that even without immunity, suits against municipal officials relate to an institution run and funded by the state, and any relief against county or municipal officials that has some significant effect on the state treasury must be considered a suit against the state, and barred under the doctrine of sovereign immunity.
Exceptions and abrogation
There are exceptions to the doctrine of sovereign immunities derived from the 11th amendment:Discrimination
If the state or local government entities receive federal funding for whatever purpose, they cannot claim sovereign immunity if they are sued in federal court for discrimination. The United States CodeUnited States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
, Title 42, Section 2000d-7 explicitly says this.
The Supreme Court decision of Board of Trustees of the University of Alabama v. Garrett
Board of Trustees of the University of Alabama v. Garrett
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 , was a United States Supreme Court case about Congress's enforcement powers under the Fourteenth Amendment to the Constitution...
seems to nullify this; however, numerous appellate court cases, such as Doe v. Nebraska in the 8th Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
and Thomas v. University of Houston of the 5th Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
have held that, as long as the state entity receives federal funding, then the sovereign immunity for discrimination cases is not abrogated, but voluntarily waived. Since the receiving of the federal funds - such as FAFSA and affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
- was optional, then the waiver of sovereign immunity was optional. If a state entity wanted its sovereign immunity back, all they have to do in these circuits is stop receiving federal funding.
However, the 2nd Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
does not share this ideal. Currently, they are the only federal court of appeals to take this approach to the issue.
Arbitration
In C & L Enterprises, Inc. v. Citizen Band, Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001), the Supreme Court of the United StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that sovereigns are not immune under the Federal Arbitration Act
Federal Arbitration Act
In United States law, the Federal Arbitration Act is a statute that provides for judicial facilitation of private dispute resolution through arbitration. It applies in both state courts and federal courts, as was held in Southland Corp. v. Keating...
. Since arbitration is a matter of contract between the parties, agreeing to participate in arbitration constitutes consent to be subject to the arbitrator's jurisdiction, thus constituting a voluntary waiver of immunity.
Suits brought by the United States
Because the U.S. is a superior sovereign, it may need to bring suit against a state from time to time. If the U.S. didn't have an exception to the sovereign immunity doctrine, the U.S. would have to sue a state in its own court system which would be a conflict-of-interest for the state court. Proper jurisdiction for a contract suit by the United States Federal Government against a state is in Federal District Court. West Virginia v. United States, 479 U.S. 305; 107 S.Ct. 702; 93 L.Ed.2d 639 (1987).Suits brought by another state
Similar to the U.S. v. State exclusion above, a state may also sue another state in the federal court system. Again, there would be a conflict of interest if either state's court system tried the case. Instead, the federal court system provides a neutral forum for the case.Under Article III, Section 2 of the United States Constitution, the Supreme Court of the United States has original jurisdiction over cases between states. Congress, if it so chooses, may grant lower federal courts concurrent jurisdiction over cases between states. However, as of yet, Congress has not chosen to do so. Thus, the United States Supreme Court currently has original and exclusive jurisdiction over cases between state governments.
Suits filed against state officials under the "stripping doctrine"
The "stripping doctrine" permits a state official who used his or her position to act illegally to be sued in his or her individual capacity. In other words, once a public official has acted illegally, they are theoretically stripped of their position's power and are eligible to be sued as individuals. However, the government itself is still immune from being sued through respondeat superiorRespondeat superior
Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...
. The Court has openly called this "stripping doctrine" a legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
. Therefore, a citizen may sue an official under this "stripping doctrine" and get around any sovereign immunity that that official might have held within his or her position within a state.
When a citizen uses this exception, they can't include the state in the suit: they have to list specifically the official's name. They also can't seek damages from the state, because they can't list the state as a party. However, the citizen can seek prospective, or future, relief by asking the court to direct the future behavior of the official.
For example, Ex parte Young
Ex parte Young
Ex parte Young, , is a United States Supreme Court case that allows suits in federal courts against officials acting on behalf of states of the union to proceed despite the State's Sovereign immunity, when the State acted unconstitutionally.-Facts:...
allows federal courts to enjoin the enforcement of unconstitutional state (or federal) statutes on the theory that "immunity does not extend to a person who acts for the state, but [who] acts unconstitutionally, because the state is powerless to authorize the person to act in violation of the Constitution." Althouse, Tapping the State Court Resource, 44 Vand. L. Rev. 953, 973 (1991). Pennhurst State School and Hospital v. Halderman (465 U.S.) ("the authority-stripping theory of Young is a fiction that has been narrowly construed"); Idaho v. Coeur d'Alene Tribe of Idaho
Idaho v. Coeur d'Alene Tribe of Idaho
Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 , was an important U.S. Supreme Court precedent for aboriginal title in the United States and sovereign immunity in the United States...
("Young rests on a fictional distinction between the official and the State"). The Young doctrine was narrowed by the court in Edelman v. Jordan
Edelman v. Jordan
Edelman v. Jordan, 415 U.S. 651 , was a United States Supreme Court case that held that, because of the sovereign immunity recognized in the Eleventh Amendment, a federal court could not order a State to pay back funds unconstitutionally withheld from parties to whom they were due.-Facts:The...
, which held that relief under Young can only be for prospective, rather than retrospective, relief; the court reasoned that the Eleventh Amendment's protection of state sovereignty requires the state's coffers to be shielded from suit. Prospective relief includes injunctions and other equitable orders, but would rarely include damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
. This limitation of the Young doctrine "focused attention on the need to abrogate sovereign immunity, which led to the decision two years later in Fitzpatrick." Althouse, Vanguard States, supra, at 1791 n.216
For more details, "constitutional torts" 42 U.S.C. § 1983
Civil Rights Act of 1871
The Civil Rights Act of 1871, , enacted April 20, 1871, is a federal law in force in the United States. The Act was originally enacted a few years after the American Civil War, along with the 1870 Force Act. One of the chief reasons for its passage was to protect southern blacks from the Ku Klux...
allows state officials to be sued in their individual or official capacities, a principle which was demonstrated again in Brandon v. Holt, 469 U.S. 464 (1984).
Suits as to which Congress has abrogated the states' Eleventh Amendment immunity
The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligenceNegligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, but not intentional wrongs, of government employees. The common-law tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
doctrine of respondeat superior
Respondeat superior
Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...
makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy. See Brandon v. Holt.
Under the abrogation doctrine
Abrogation doctrine
The Abrogation doctrine is a constitutional law doctrine expounding when and how the Congress may waive a state's sovereign immunity and subject it to lawsuits to which the state has not consented ....
, while Congress cannot use its Article I powers to subject states to lawsuits in either federal courts, Seminole Tribe v. Florida
Seminole Tribe v. Florida
Seminole Tribe of Florida v. Florida, 517 U.S. 44 , was a United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment...
, or a fortiori its own courts, Alden, supra, it can abrogate a state's sovereign immunity pursuant to the powers granted to it by §5 of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, and thus subject them to lawsuits. Seminole, supra; Fitzpatrick v. Bitzer
Fitzpatrick v. Bitzer
Fitzpatrick v. Bitzer, 427 U.S. 445 , was a United States Supreme Court decision that determined that the U.S. Congress has the power to abrogate the Eleventh Amendment sovereign immunity of the states, if this is done pursuant to its Fourteenth Amendment power to enforce upon the states the...
. However:
- The court requires "a clear legislative statement" of intent to abrogate sovereignty, Blatchford, supra; Seminole, supra.
- Because Congress' power under §5 is only "the power 'to enforce,' not the power to determine what constitutes a constitutional violation," for the abrogation to be valid, the statute must be remedial or protective of a right protected by the Fourteenth Amendment and "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," City of Boerne v. FloresCity of Boerne v. FloresCity of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...
. But "[t]he ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch." Kimel v. Florida Board of RegentsKimel v. Florida Board of RegentsKimel v. Florida Board of Regents, 528 U.S. 62 was a United States Supreme Court case that determined that the Congress's enforcement powers under the Fourteenth Amendment to the Constitution did not extend to the abrogation of state sovereign immunity under the Eleventh Amendment where the...
. Simply put: "Under the City of Boerne doctrine, courts must ask whether a statutory remedy has 'congruence and proportionality' to violations of Section 1 rights, as those rights are defined by courts." Althouse, Vanguard States, Laggard States: Federalism & Constitutional Rights, 152 U. Pa. L. Rev. 1745, 1780 (2004) - States can expressly waive sovereign immunity, but do not do so implicitly simply by participating in a commercial enterprise where Congress subjects market participants to lawsuits. College Savings Bank v. Florida Prepaid Postsecondary Education Expense BoardCollege Savings Bank v. Florida Prepaid Postsecondary Education Expense BoardCollege Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, , was a decision by the Supreme Court of the United States relating to the doctrine of sovereign immunity....
.
To the surprise of many observers, however, the Court has found that somewhat different rules may apply to Congressional efforts to subject the states to suit in the domain of federal bankruptcy law. In Central Virginia Community College v. Katz
Central Virginia Community College v. Katz
Central Virginia Community College v. Katz, 546 U.S. 356 , is a United States Supreme Court case holding that the Bankruptcy Clause of the Constitution abrogates state sovereign immunity...
, the Court held that state sovereign immunity was not implicated by the exercise of in rem jurisdiction by bankruptcy courts in voiding a preferential transfer to a state. Justice Stevens, writing for a majority of five (including Justice O'Connor, in one of her last cases before retirement, and Justices Souter, Ginsburg, and Breyer), referred to the rationale of an earlier bankruptcy decision, but relied more broadly on the nature of the bankruptcy power vested in Congress under Article I. "The question", he stated, "[was] not whether Congress could 'abrogate' state sovereign immunity in the Bankruptcy Act (as Congress had attempted to do); rather, because the history and justification of the Bankruptcy Clause, as well as legislation enacted immediately following ratification, demonstrate that [the Bankruptcy Clause] was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena." In reaching this conclusion, he acknowledged that the Court's decision in Seminole Tribe and succeeding cases had assumed that those holdings would apply to the Bankruptcy Clause, but stated that the Court was convinced by "[c]areful study and reflection" that "that assumption was erroneous". The Court then crystalized the current rule: when Congressional legislation regulates matters that implicate "a core aspect of the administration of bankrupt estates", sovereign immunity is no longer available to the States if the statute subjects them to private suits.
It is worth noting that the Court in Central Virginia Community College v. Katz
Central Virginia Community College v. Katz
Central Virginia Community College v. Katz, 546 U.S. 356 , is a United States Supreme Court case holding that the Bankruptcy Clause of the Constitution abrogates state sovereign immunity...
added this cryptic caveat to their holding: "We do not mean to suggest that every law labeled a 'bankruptcy' law could, consistent with the Bankruptcy Clause, properly impinge upon state sovereign immunity". It is quite possible the Court has anticipated a significant narrowing of the doctrine.
Certain contracts with the government
By way of the Tucker ActTucker Act
Through the Tucker Act , the United States government has waived its sovereign immunity with respect to certain lawsuits....
, certain claims of monetary damages against the United States are exempt from sovereign immunity. These cases are heard by the United States Court of Federal Claims
United States Court of Federal Claims
The United States Court of Federal Claims is a United States federal court that hears monetary claims against the U.S. government. The court is established pursuant to Congress's authority under Article One of the United States Constitution...
, or, for cases involving less than ten thousand dollars, a district court has concurrent jurisdiction
Concurrent jurisdiction
Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in the court that they perceive will be most favorable to...
.
Examples of contracts where immunity is waived include:
- debts incurred.
- salariesSalaryA salary is a form of periodic payment from an employer to an employee, which may be specified in an employment contract. It is contrasted with piece wages, where each job, hour or other unit is paid separately, rather than on a periodic basis....
of government employees. - Tax refundTax refundA tax refund or tax rebate is a refund on taxes when the tax liability is less than the taxes paid. Taxpayers can often get a tax refund on their income tax if the tax they owe is less than the sum of the total amount of the withholding taxes and estimated taxes that they paid, plus the...
s that have not been sent. - CommercialCommercialismCommercialism, in its original meaning, is the practices, methods, aims, and spirit of commerce or business. Today, however, it primarily refers to the tendency within open-market capitalism to turn everything into objects, images, and services sold for the purpose of generating profit...
contracts. - Any contract that has a provision in it specifically waiving sovereign immunity.