Eleventh Amendment

The Eleventh Amendment provides that “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.”

The protection offered states by the Eleventh Amendment is grounded in the doctrine of state sovereignty, a principle establishing that sovereign governments may not be sued without their consent. Although the Supreme Court broadly interpreted the amendment at the outset, it soon created a number of exceptions to the immunity doctrine that vitiated much of its effect. Beginning in the 1990’s, however, almost 200 years after the ratification of the amendment, the Supreme Court construed it to expand state sovereignty, declaring states immune from money damages in lawsuits brought against them for violating laws related to unfair labor practices, employment discrimination, patent protection, and unfair trade practices.

The Eleventh Amendment was ratified in 1798 to overturn the U.S. Supreme Court’s decision in Chisholm v. Georgia (1793), in which the Court was asked to decide whether a citizen of South Carolina was permitted to sue the State of Georgia for payment of debts owed on Revolutionary War bonds. Although Georgia claimed that it was immune from suit, the Court ruled that the U.S. Constitution allowed the plaintiff to override the state’s immunity defense. The nation’s reaction was swift and the Eleventh Amendment, quickly approved in Congress and ratified by the states, barred the federal courts from hearing suits brought against a state by citizens of another state.

In Hans v. Louisiana (1890), the Supreme Court ruled on another dispute arising out of a state’s indebtedness to its bondholders. Although the plain language of the amendment only applies to suits against a state by citizens of another state, the state argued that the federal courts lacked constitutional authority to hear any cases brought by private citizens against a state without the consent of the state. The Supreme Court agreed, expanding the concept of state sovereignty by ruling that the Eleventh Amendment also conferred immunity on states in suits brought by their own citizens. Despite the broad statement in Hans, however, states were not granted immunity in all cases. Suits may be brought against states by the federal government or by other states; moreover, states may waive their immunity. Additionally, the state’s immunity does not extend to its instrumentalities, such as cities or counties, unless they are considered “arms of the state.”

In 1908, the Court began to retreat from the principle of state sovereignty established in the Eleventh Amendment and Hans. In Ex Parte Young (1908), the Court ruled that the amendment does not bar suits for ongoing constitutional violations brought against state officials in their official capacities. Young is based on the fiction that a suit against a state officer does not constitute a suit against the state if the suit only seeks an injunction (a court order) to stop the unconstitutional behavior. However, because the amendment bars suits for money damages, individuals may not seek such damages for past violations because those funds would have to be paid from the state treasury.

The Supreme Court created another exception to the Eleventh Amendment in Fitzpatrick v. Bitzer (1976). The case was brought by Connecticut employees under Title VII of the 1964 Civil Rights Act, a law originally applying to private employers and extended to the states in 1972; they claimed the state’s retirement plan discriminated against them on the basis of sex. The Court restricted the potency of the immunity doctrine by ruling that because the Fourteenth Amendment, arising out of the post–Civil War era, was intended to alter the relationship between the federal government and the states, Congress was permitted to abrogate (revoke) the state’s Eleventh Amendment immunity as part of its remedial authority under Section 5 of the Fourteenth Amendment. Section 5, the enforcement provision, gives Congress the authority to enforce the guarantees of the substantive provisions of the Fourteenth Amendment, among them the Equal Protection Clause. The Court made it clear in Fitzpatrick that Congress must clearly indicate its intent to abrogate state sovereign immunity when enacting a statute under the authority of the Fourteenth Amendment.

Then, in Pennsylvania v. Union Gas Company (1989), the Court added another exception to the Eleventh Amendment, ruling that Congress had the power to abrogate sovereign immunity under Article I, Section 8, of the Constitution, the Interstate Commerce Clause. However, in Seminole Tribe of Florida v. Florida (1996), the Court was asked to reconsider whether the Eleventh Amendment protects states from suits for damages in laws enacted under Congress’s authority to regulate commerce. Seminole Tribe revolved around a dispute between the Seminole Indians and the State of Florida over a provision of the Indian Gaming Regulatory Act of 1988. The Court overruled Union Gas, enlarging the scope of the protection offered states by the Eleventh Amendment by ruling that the Commerce Clauses, in this case, the Indian Commerce Clause, did not authorize Congress to abrogate state immunity. Speaking for the majority, Chief Justice William Rehnquist identified two standards for determining whether Congress had validly abrogated a state’s Eleventh Amendment immunity: first, Congress must clearly intend to do so; and second, it must have the power to do so. Although Seminole Tribe did not hold that states were excused from complying with federal law, nor that the federal government was barred from bringing an action against an unconsenting state for violating federal law, the Court confirmed that Congress’s power to abrogate state immunity was restricted to laws validly enacted under Section 5 of the Fourteenth Amendment.

Following Seminole Tribe, the Court made it clear that Congress’s power to negate a state’s Eleventh Amendment immunity was solely derived from the enabling clause of the Fourteenth Amendment, Section 5. And in City of Boerne v. Flores (1997), a case that arose in a challenge to the Religious Freedom Restoration Act of 1993, the Court specified the limits of Congress’s enforcement power under Section 5, adopting a rule of “congruence and proportionality.” Although not well defined by the Supreme Court, the “congruence and proportionality” test became the standard for determining whether Congress had the proper authority to abrogate the state’s Eleventh Amendment immunity in laws enacted under Section 5. To meet this standard, Congress must have evidence that the state had been guilty of unconstitutional conduct and the law must be within Congress’s ability to cure the injury by restricting the state’s conduct. Although failure to meet the test would not affect the status of the law as applied to private individuals or even states, it would absolve states from damage liability in suits brought by private individuals.

In two 1999 cases arising out of the same set of facts, the Court expanded state immunity by curtailing Congress’s authority to hold states accountable in suits for unfair trade practices and patent infringement. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), the majority held that Congress exceeded its authority in enacting the Patent and Plant Variety Protection Remedy Clarification Act of 1992—a federal law subjecting states to private suits for patent infringement—because there was insufficient evidence of state infringement on patent rights. In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1999), the same majority ruled that the Trademark Remedy Clarification Act of 1992, a law declaring that states engaged in interstate marketing are subject to private suit, was also unconstitutional because it was not aimed at protecting property interests within the scope of the Due Process Clause of the Fourteenth Amendment.

In the third and most important of the 1999 trilogy of cases, Alden v. Maine (1999), the Court again raised the bar of state immunity by holding that the Eleventh Amendment protected states from suit in state, as well as federal, court. The decision arose from an action brought by a group of Maine employees who claimed the state violated their rights under the Fair Labor Standards Act of 1938. The Court extended the sovereign immunity doctrine once again by ruling that individuals who are excluded from federal court on the basis of the Eleventh Amendment cannot circumvent the doctrine by suing the state in state court either.

During the next two years, the Supreme Court’s interpretation of the Eleventh Amendment jeopardized the effectiveness of two federal equal opportunity employment laws by barring state workers from bringing damage suits against states in their capacity as employers. With almost 5 million state employees nationwide, the consequences for continually expanding state immunity under the Eleventh Amendment immunity would become increasingly important to the labor force in the United States.

The Age Discrimination in Employment Act (ADEA), enacted in 1967 under Congress’s authority to regulate interstate commerce, makes it unlawful to make employment decisions on the basis of age. Initially limited to private employers, the law was later amended to include state employers. Although it seemed likely that Congress had intended to allow individuals to sue states for damages in federal court, the law did not expressly abrogate Eleventh Amendment immunity. In January 2000, the Court announced its ruling on state immunity from ADEA suits in Kimel v. Florida (2000). A majority of the Court believed that Congress had intended the ADEA to abrogate state immunity, but when it applied the City of Boerne standard, it found that Congress had insufficient evidence that states were guilty of unconstitutional discrimination on the basis of age. Moreover, because the Constitution allows states to distinguish among people on age-related grounds as long as these distinctions are reasonable, the law would punish a greater range of behavior than would be considered unconstitutional according to the Equal Protection Clause of the Fourteenth Amendment. Thus, because the law prevented states from making reasonable employment decisions based on age, the Court concluded that it exceeded the bounds of Congress’s authority under Section 5.

The Americans with Disabilities Act (ADA) of 1990 was enacted under Congress’s authority to regulate interstate commerce as well as to enforce the equal rights guarantees of the Fourteenth Amendment; however, unlike the ADEA, it explicitly deprived states of Eleventh Amendment immunity from suit. But in Board of Trustees of the University of Alabama v. Garrett (2001), although the Court acknowledged that Congress had clearly intended to abrogate state immunity, it questioned whether it exceeded its authority under Section 5 in doing so. In applying the “congruence and proportionality” test from City of Boerne, the Court cited its ruling on disability rights in Cleburne v. Cleburne Living Center (1985) and concluded that states had great latitude in laws based on disability. Although the ADA demanded that employers, including state employers, accommodate the needs of people with disabilities, the Constitution merely required them to act rationally. And, as in Kimel, the Court found that Congress had not provided sufficient evidence that states had unlawfully discriminated against people with disabilities. Because the Court determined that the ADA was not “congruent and proportional” to any violation of the Fourteenth Amendment committed by the states under the City of Boerne standard, the law exceeded Congress’s authority to abrogate state immunity.

The next year, the Supreme Court addressed a related Eleventh Amendment issue in Federal Maritime Commission v. South Carolina State Ports Authority (2002). South Carolina Maritime Services filed a complaint with the Federal Maritime Commission, charging the South Carolina Ports Authority with violating the Shipping Act of 1984 by refusing it permission to berth a ship in a Charleston seaport. The high court determined that the barriers to suits for money damages erected by the Eleventh Amendment extend to federal administrative agencies, also preventing them from adjudicating the actions of private individuals against states.

In another case involving a federal law aimed at employment discrimination, Hibbs v. Department of Human Resources (2003), the Supreme Court was asked to decide if the Eleventh Amendment granted states immunity from a suit brought under the 1993 Family Medical Leave Act (FMLA). The FMLA, enacted under Congress’s authority under the Interstate Commerce Clause and the Fourteenth Amendment, requires employers to allow workers to take up to twelve weeks of unpaid leave because of their own health problems or to care for an ailing family member; it permitted workers to sue their employers, including states, for damages for violating the act. Encouraged by the high court’s decisions in the age and disability discrimination suits, states argued they were immune from damages in suits brought under the FMLA.

The controversy in Hibbs arose in 1997 when William Hibbs, who had taken time off from work to care for his wife, charged that the state violated the FMLA by firing him. The state argued that the Eleventh Amendment protected it from a suit for damages. The principal issue in the case was whether the FMLA exceeded Congress’s authority under the Fourteenth Amendment, thus allowing the state to insulate itself from the suit. Following the principles established in Seminole Tribe, the high court confirmed that Congress had clearly indicated its intention that the FMLA abrogated state immunity from suits for money damages. Next, applying the standard set in City of Boerne, the Court reiterated that when Congress attempts to revoke a state’s immunity, it must demonstrate a “congruence and proportionality” between the injury to be remedied (the state’s unconstitutional law or policy) and the federal statute enacted to cure the injury. In assessing whether Congress had acted within its authority under Section 5 of the Fourteenth Amendment, the Court must determine that the state has violated the Fourteenth Amendment and that the law in question merely provides a remedy for the state’s unconstitutional conduct without imposing a higher standard on the state than the one imposed by the Fourteenth Amendment.

When it examined the legislative history of the FMLA, the Court determined that it was aimed at addressing the pervasive problem of sex discrimination in the workplace. Congress had indicated its concern that women’s family responsibilities for their children or parents had a detrimental effect on their employment status. Unlike Kimel and Garrett, in which the Court held that states had not violated the Constitution when differentiating among people on the basis of age or disability, the Court cited a long history of state laws restricting women’s opportunities in the workplace. Moreover, Congress had found significant evidence that states were continuing to discriminate on the basis of sex, especially in the administration of workers’ leave benefits. Policies, such as restricting parental leaves to women, were based on a stereotype that caring for the family is the woman’s responsibility; by establishing a gender-neutral leave policy, the FMLA aimed at eradicating the stereotype and reducing the employer’s incentive to hire only men. The Court concluded that the state’s pattern of discrimination was sufficient to justify this law aimed at remedying its unconstitutional conduct and Congress was within its authority to abrogate the state’s immunity under the Fourteenth Amendment. Thus, Hibbs halted, at least temporarily, the Court’s policy of immunizing states from damage suits.

Beginning in the 1990’s, with the exception of its ruling in Hibbs, the Supreme Court has relied on the Eleventh Amendment to expand state sovereignty. It has declared states immune from private damage suits brought under federal employment discrimination laws as well as protected states from suit by private individuals for violation of patent laws and unfair marketing practices. In extending the parameters of state sovereignty through its interpretation of the Eleventh Amendment, the Court has prevented the federal government from providing effective relief to individuals harmed by state violations of federal rights guarantees. Although the Court’s rulings have continued to recognize congressional authority to enact federal law in these areas, they have barred suits against states for infringing on these rights. By insulating state governments from private suits, the Court has jeopardized Congress’s ability to hold states accountable for violating federal laws and diminished the protection offered individuals under these laws.

Bibliography

Robert F. Nagel, The Implosion of American Federalism (Oxford: Oxford University Press, 2001); and John T. Noonan Jr., Narrowing the Nation’s Power (Berkeley: University of California Press, 2002).