Making Sense of the Eleventh Amendment in the Modern Welfare State
In a recent editorial, the New York Times takes it upon itself to fulminate against the conservative excesses of Justices Roberts and Alito for their apparent willingness to cut back the ability of the federal courts to enforce federal rights against state officials. The current controversy comes out of an internal dispute between two branches of the Virginia state government over the question of whether one set of Virginia officials have respected the federal rights of individuals who suffer from developmental disabilities or mental illnesses. One Virginia agency refused to turn over papers to another to see whether these federal rights were violated. The upshot was that the Virginia Agency for Protection & Advocacy ended up suing the Virginia Commissioner for Behavioral Health and Developmental Services in federal court to get the documents. The case is Virginia Office of Protection and Advocacy v. Stewart.
The question was therefore whether an intramural dispute between two state agencies could end up in federal court under, as it were, the heading of Virginia v. Virginia. The issue involved thus invoked the storied Eleventh Amendment. As drafted, the Eleventh Amendment provides:
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.
What, pray tell, might this mean? The original reason for passing the Eleventh Amendment was to undo the 1793 decision of the Supreme Court in Chisholm v. Georgia, where the Supreme Court had held that the federal courts could allow a citizen of South Carolina to sue the state of Georgia in federal court to collect a revolutionary war debt that had not been paid. It was agreed on all hands that if this suit had been brought in state court, the state could successfully interpose the defense of sovereign immunity.
The Supreme Court decision said that the creation of a dual court system under Article III of the Constitution in effect allowed the suit to go forward in federal court. No one had thought that the idea of sovereign immunity could have been so circumscribed that the Eleventh Amendment, adopted just five years later, would hold that the federal judicial power did not read that way. The use of the verb “construed” is instructive because the amendment was read as just rectifying a judicial error. No one thought that it had the implicit subtext that the federal judicial power allowed one citizen to sue his own sovereign in federal court, a position that was explicitly ratified in a post Civil War debt case of Hans v. Louisiana (1890).
The next major development in this area was the famous 1908 decision in Ex parte Young, in which a shareholder of a railroad was allowed to sue a Minnesota state official in federal court in order to enjoin the enforcement of confiscatory rates in railroad cases, a very hot topic at the time. To do so, it acted on what has sometimes been called an empty formalism that allows the Supreme court to stop the sovereign by stopping his agent. But the theory of the case was that the agent no longer could claim that immunity when sued by a private citizen for actions that exceeded his constitutional authority.
Obviously no one is happy with the compromise that resulted from Ex parte Young, which adopted one rule for enforcing future rate rules and another that respected state sovereignty so that “[the Federal court] may not restrain the state court from acting in any case brought before it either of a civil or criminal nature, or prevent any investigation or action by a grand jury.” A very delicate balance indeed.
But with all the law made under the Eleventh Amendment, left undecided was whether the Amendment would apply to suits brought by government actors against other government actors in the same state. At one level the case seems odd because why should any state be able to sue itself in any forum? But so long as the two agencies have different legal personalities, the suit does make sense, at least in principle.
In upholding the suit, Justice Antonin Scalia stressed that the test for an Eleventh Amendment suit was the level of infringement of sovereignty on the defendant’s side, so that it did not matter whether the plaintiff was a private party or another state agency. Justice John Roberts wrote an equally learned dissent in which he took the position that Ex parte Young had pushed the law too far already. Justice Roberts did not think that the Federal court should go one step further by barging into internal disputes. Let some private individual assert a claim and the matter would resolve itself. The case is really close. My inclination is to side with Justice Scalia.
The somewhat hysterical New York Times editorial was not careful to point out that the issue in this case—whether one state could sue another in federal court—had never been decided, and that it was an issue on which precedent lay on both sides. It just noted the vulnerability to suit in federal court without asking who could exploit that vulnerability. In so doing, it marks a peculiar inversion of constitutional ordering. In Ex parte Young, it was property rights that were to be protected against state confiscation. Now all sorts of other personal rights are involved.
Indeed, most of the controversial cases involving state sovereign immunity are situations in which Eleventh Amendment or not, the federal government has no business dealing with in the first place, as in cases where it insists that federal labor laws, including minimum wage, overtime and age discrimination laws can be imposed on state governments to protect their employees against the state, so long as they are part of a general scheme. Whatever the niceties of Ex parte Young, this ability of the federal government to dictate how states should run their internal affairs really does stand history on its head.
My sense is that the world will not long remember the difficulties of this particular case, which strikes me as part and parcel of the type of incremental lawmaking that is common in dealing with hard constitutional questions. But it should think long and hard about the extent to which the Eleventh Amendment and other doctrines of sovereign immunity should shield states from the direct federal regulation of their internal affairs.