The Eleventh Amendment and Sovereign Immunity. (Contributions in American History)

Contents:

  • Eleventh Amendment to the United States Constitution
  • Introduction
  • State Sovereign Immunity and Protection of Intellectual Property

    • The operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of A great deal of the difficulty in interpreting and applying the Eleventh Amendment stems from the fact that the Court has not been clear, or at least has not been consistent, with respect to what the Amendment really does and how it relates to the other parts of the Constitution.

    One view of the Amendment, set out above in the discussion of Hans v. That view finds present day expression. Jordan , 44 in which the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court.

    How Sovereign Immunity Works

    Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit 47 becomes conceptually difficult, as it is not possible to confer jurisdiction where it is lacking through the consent of the parties. Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: But upon entering the Union the states surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but that is more than their coequal.

    Outside the area of federal court jurisdiction, Nevada v. Hall , 58 perfectly illustrates the difficulty. Although it recognized that the rule during the framing of the Constitution was that a state could not be sued without its consent in the courts of another sovereign, the Court discerned no evidence in the federal constitutional structure, in the specific language, or in the intention of the Framers, that would impose a general, federal constitutional constraint upon the action of a state in authorizing suit in its own courts against another state.

    Within the area of federal court jurisdiction, the issue becomes the extent to which the states upon entering the Union gave up their immunity to suit in federal court. Chisholm held, and enactment of the Eleventh Amendment reversed the holding, that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment in effect codified an understanding of broader immunity to suits based on federal causes of action.

    Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government. Despite the apparent limitations of the Eleventh Amendment , individuals may, under certain circumstances, bring constitutional and statutory cases against states.

    In other cases, the Eleventh Amendment does not apply because the procedural posture is such that the Court does not view them as being against a state. As discussed below, this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where the res , or property in dispute, is in fact the legal target of a dispute. Because Eleventh Amendment sovereign immunity inheres in states and not their subdivision or establishments, a state agency that wishes to claim state sovereign immunity must establish that it is acting as an arm of the state: The immunity of a state from suit is a privilege which it may waive at its pleasure.

    A state may expressly consent to being sued in federal court by statute. In a few cases, the Court has found a waiver by implication, but the vitality of these cases is questionable. One of the two primary grounds for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, enacted some 20 years previously, the state had effectively accepted the imposition of the Act and consented to suit. Further, even if a state becomes amenable to suit under a statutory condition on accepting federal funds, remedies, especially monetary damages, may be limited, absent express language to the contrary.

    A state may waive its immunity by initiating or participating in litigation. Barnard , 85 the state had filed a claim for disputed money deposited in a federal court, and the Court held that the state could not thereafter complain when the court awarded the money to another claimant. However, the Court is loath to find a waiver simply because of the decision of an official or an attorney representing the state to litigate the merits of a suit, so that a state may at any point in litigation raise a claim of immunity based on whether that official has the authority under state law to make a valid waiver.

    If a state voluntarily agrees to removal of a state action to federal court, the Court has held it may not then invoke a defense of sovereign immunity and thereby gain an unfair tactical advantage. The Constitution grants Congress power to regulate state action by legislation.

    At least in some instances when Congress does so, it may subject the states themselves to suit by individuals to implement the legislation. The clearest example arises from the Civil War Amendments, which directly restrict state powers and expressly authorize Congress to enforce these restrictions through appropriate legislation. In the case of Pennsylvania v. Twenty-five years earlier the Court had stated that same principle, 93 but only as an alternative holding, and a later case had set forth a more restrictive rule. The dissenters disputed each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, would have held that no such power existed under Article I.

    As discussed below, the requisite congressional intent to abrogate state sovereign immunity is evident in several provisions of the statute. Had these been considered in Union Gas, the district court may have satisfied itself that its "clear statement" test had been met. Finally, the district court apparently misconstrued statements made during the congressional debate. The court relied on the remarks of Senator Randolph concerning financing of the Hazardous Substance Response Trust Fund by "industries and consumers" and [14 ELR ] the determination of liability issues by resort to "evolving principles of common law.

    Sectionn imposes liability for releases or threatened releases of hazardous substances upon several classes of persons, including the "owner and operator of a … facility" and "any person" who owned or operated a facility at the time hazardous substances were disposed there. Did Congress literally include the states within the class of persons who are potentially liable under the statute? If so, did Congress clearly intend to make the states amenable to suit in the federal courts?

    An examination of the language and purposes of CERCLA provides ample evidence that the second part of the test is also met.

    Eleventh Amendment to the United States Constitution

    Additionally, liability under CERCLA arises from discrete occurrences and does not implicate or intrude upon the day-to-day functioning of state programs. To the extent that a state is responsible for the release of hazardous substances, its potential liability is site-specific and its financial exposure is limited to a reimbursement of response costs that are "consistent with the national contingency plan.

    Such an omission may be taken as intentional and significant, given that private party suits against the states are typically limited under companion environmental statutes "to the extent permitted by the eleventh amendment to the Constitution. Such a reading of the statute results in the "right without a remedy" anomaly deplored in Parden. Nothing in the statute or the legislative history suggests that Congress intended such a result.

    First, it demonstrates Congress' awareness that pollution incidents may originate at state-owned or operated facilities. Second, it shows that Congress did expect the states to bear financial responsibility for releases of hazardous substances from their facilities. Congress understood CERCLA as a comprehensive mechanism for assuring prompt and efficient cleanups of hazardous pollution incidents:.

    The liability provision is an integral part of the statute's method of achieving this goal for it gives a private party the right to recover its response costs from responsible third parties…. During the deliberations on the legislation that ultimately became CERCLA, Congress expressed concern that "there is no general federal law establishing liability in the case of accident or other incident involving hazardous substances" and that existing federal and state legal authority in this area was iandequate. Among the elements considered essential to an effective program was "assuring that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their action.

    By its literal terms, CERCLA subjects the states to potential liability for releases of hazardous substances from state-owned or operated facilities. The Eleventh Amendment, as currently interpreted, should not bar such actions. For example, a counterclaim has been asserted against California in the litigation over the Stringfellow site and a third-party complaint has been filed against South Carolina with respect to the Fort Lawn site.

    U.S. Constitution Annotated

    In Union Gas, the third-party complaint against Pennsylvania involved a claim based in part upon excavation activities. The Eleventh Amendment reads as follows:. The Judicial power of the United States shall not be constured 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.

    While the Eleventh Amendment speaks only of suits against a state by citizens of another state, the Supreme Court has long held that the jurisdictional principle embodied in the Eleventh Amendment also precludes suit in a federal court brought by a citizen against his own state. Tennessee-Missouri Bridge Commission, U. A state statute waiving sovereign immunity in the state's own courts does not operate as a waiver of Eleventh Amendment immunity unless there is an explicit provision to that effect.

    Florida Dep't of Health v. Florida Nursing Home Ass'n, U. Missouri Public Health Dep't, U. Compare Ex Parte Young, U. Dep't of Treasury, U.

    See also, Quern v. New York, F. Louisiana , the Court dismissed the claims for damage to private property on grounds of sovereign immunity. Further, citing these cases, the Supreme Court held in Hawaii v.

    It is uncertain whether the Federal Government could succeed in championing the cases of individuals where States could not. However, these decisions cast serious doubt on the constitutionality of this option.

    Fourth, expansion of the role of the Federal Government in a sphere that has heretofore been the sole concern of private litigants runs counter to recent trends in government. It would be difficult to defend the use of taxpayer money to litigate on behalf of multi-million dollar corporations.

    Of course, if the Supreme Court has left no other option for the effective enforcement of intellectual property rights, the justification might be easier to find. A fourth option is for Congress to abrogate state sovereign immunity by appropriately-tailored legislation under Section 5 of the Fourteenth Amendment. As noted above, the Supreme Court's decision in Florida Prepaid severely limits the application of this option. In order to adopt a strong abrogation provision that would still be within the limitations of Florida Prepaid , the legislation would have to be tailored to meet three criteria.

    First, Congress must establish a strong record of infringement by States. If, as would be desirable, the legislation were to include patent and trademark, a record of infringement by States of those rights must be established as well. As noted above, this record is not currently available. Second, the abrogation must be drafted so that it applies only to States that do not provide a remedy or some form of due process to an aggrieved copyright owner. Such remedies need not be equivalent to the standards of Title This option therefore carries with it a risk of undermining national uniformity of copyright protection.

    It is unclear whether the abrogation must be flexible so as to apply only to States that provide no remedy at the time a particular suit is brought or for the entire duration of a suit , or whether the availability of remedies at the time of enactment permanently defines the scope of the abrogation. Third, the abrogation may only extend to non-negligent infringement by a State. Additionally, an abrogation provision drafted so as to maximize its chances of surviving judicial scrutiny by requiring individual plaintiffs to demonstrate a deprivation of property without due process, thus obviating the need for extensive legislative findings, might be impractical for individual litigants and thus ineffective.

    A fifth option is to condition States' exercise of federal intellectual property rights, including copyright, patent and trademark rights, on a waiver of sovereign immunity for infringement suits. In College Savings , the Court overturned Parden and completely eliminated the implied waiver doctrine. This option, therefore, would have to be structured to induce States affirmatively to waive their sovereign immunity, most likely by state statute. This could be accomplished by rendering state works ineligible for protection in the absence of an express waiver by the State of its immunity in copyright infringement cases.

    The incentive for States to waive their immunity could be made even stronger by tying the issues of copyright, patent, and trademark infringement together. There is a symmetry to this approach. It is clear and salable, with a compelling proportionality and nexus between the problem and the remedy. There is language in the majority opinion in College Savings that could be read as a dicta commentary suggesting that if Congress conditions State's access to protections under a law enacted pursuant to the Commerce Clause on waiver of state immunity, such waiver is not voluntary and thus not valid.

    However, the better reading of the relevant language is that implied waiver is inherently involuntary but that where Congress clearly gives the State a choice, so long as the choice is not coercive, a State's choice to explicitly waive its immunity is effective. There is little case law on express waiver, and what little there is focuses on whether or not an express waiver occurred, rather than on the State's motivation in waiving immunity. In other contexts of waivers of constitutional rights or immunities, the Court has looked to the circumstances surrounding the waiver and, on occasion, found the waiver to be ineffective where it was essentially coerced.

    This option arguably contains an element of coercion because it conditions States' enforcement of intellectual property rights on a waiver of immunity. Some may view this approach as overly coercive, although the Copyright Office has not yet heard a legal argument that persuasively supports that view. There are two strong counter-arguments: First, this approach is no more coercive than the unilateral abrogation of State immunity in current law.

    While that law is probably unenforceable in light of the Court's rulings, it was nonetheless adopted with the support of many current Members of Congress.

    Introduction

    Unlike abrogation, States would be given a real choice between waiving immunity or accepting the consequences. As discussed below, many States may take the latter course. Second, there is a strong nexus between the consequences of not waiving immunity and the problem that a waiver is intended to solve.

    In the absence of waiver, copyright owners are deprived of their rights. This approach merely imposes the same result on non-waiving States. The issue is one of fundamental fairness. It is far from a foregone conclusion that States will uniformly waive their immunity under this approach. Many States may conclude that immunity from copyright infringement suits serves their interests better than the ability to enforce their own copyrights, and that the same is true with respect to patents and trademarks.

    Linking all federal intellectual property rights including copyright, patent, and trademark together would strengthen the incentive for States to waive their immunity. After reviewing the above options, the Copyright Office came to two conclusions. First, an approach that would effectively abrogate state sovereign immunity from suits for infringement of federal intellectual property rights would be the most desirable approach.

    A straightforward return to the status quo as it was before the Supreme Court ruled on the constitutionality of the PRCA and the TRCA would resolve the issue in a fair and equitable way. Unfortunately, that is the one approach that the rulings of the Court have clearly foreclosed. The variation on this approach that would attempt to abrogate sovereign immunity by navigating the minefield of conditions laid down by the Court is problematic.

    We do not yet know whether Congress could build a record of findings that would satisfy the Court that abrogation is justified. Even if it did, the limitation to cases of non-negligent infringement could lead to denial of relief in a significant number of cases of infringement.

    We are skeptical whether this approach would satisfy both requirements of constitutionality and effectiveness.

    State Sovereign Immunity and Protection of Intellectual Property

    At the beginning of this year, we sent you a draft of legislation that we believe would be both constitutional and effective. It follows the fifth approach that I outlined above. The centerpiece of the proposal is a provision that would prospectively strip a State's intellectual property of protection unless that State waived its sovereign immunity for intellectual property suits in federal court.

    This provision would effectuate itself by operation of law. For the reasons discussed above, we believe that this approach is the best opportunity for a solution that is both constitutional and effective. Senator Leahy introduced S. The overall approaches of the two proposals are similar.

    The fact that Senator Leahy and the Copyright Office independently arrived at similar approaches after considering a number of alternatives lends support to our belief that it is the best of a number of imperfect alternatives. Some appear to advocate that Congress not seek to enact a solution right away, but rather wait and see how the situation develops. This approach has the benefit of providing ample time for studies that may be necessary if Congress ultimately chooses to attempt to abrogate state sovereign immunity.

    However, this approach also delays justice to aggrieved copyright owners, and if Congress ultimately does not choose to enact an abrogation provision, the delay will have been largely unnecessary. It is only logical that in the current legal environment, without an alteration of the status quo, infringements by States are likely to increase. Only Congress has the power to remedy the existing imbalance, and it is the recommendation of the Copyright Office that it do so.

    The Supreme Court's rulings and State's rights must surely be respected, but the current state of affairs is unjust and unacceptable. Congress should use the tools it has to prevent the successful assertion of state sovereign immunity where it has become a tool of injustice. College Savings Bank v. Maine , S. Crow , F. Mansour , U. Bitzer , U. Union Gas , U. Seminole Tribe , U. United States , U. College Savings , S.

    Florida Prepaid, S. Williams , U. Monographs are individual works such as a book, poem, or song. Not included in the survey were serial registrations such as magazines. Based on a brief investigation into the number of serials registered by certain state universities, the Copyright Office has reason to believe that such registrations may approach or even equal the number of monograph registrations that were found.

    This assumes that States will generally not waive their immunity in federal courts without some incentive. Of course, where a State has waived its immunity from suits to enforce intellectual property rights in federal courts, no remedy is needed. Similar concerns underlie the exclusive federal jurisdiction for patent infringement cases. The same is most likely true with respect to patents and trademarks. In Seminole Tribe , the Court held that the plaintiff could not use Ex parte Young to enforce the federal statute at issue.

    The statute contained detailed remedial provisions and the Court found that permitting the plaintiff to proceed under Ex parte Young would, in effect, create a judicial remedy that Congress did not intend. Although this does not appear directly applicable in the copyright context the Copyright Act authorizes injunctions against infringers , it could signal that the Court will take a more restrictive view of Ex parte Young in future cases.

    Vermont Agency of Nat. Stevens , S. Copyright Office Independence Ave. Background The doctrine of sovereign immunity is an ancient legal principle, dating back to feudal Europe, when power flowed from the King down through the nobility and very little trickled down to the peasantry. Second, the Court considered whether Congress had the power to subject a State to suit in federal courts notwithstanding the Eleventh Amendment. The Court found that in giving Congress the power to regulate interstate commerce, the States had surrendered any sovereign immunity that would impede that regulation.

    Therefore, in acting under its Commerce Clause power, Congress could abrogate state sovereign immunity. The second question the Court considered was whether Congress had authority to enact such an abrogation. A plurality of the Court found that "to the extent that the States gave Congress the authority to regulate commerce, they also relinquished their immunity where Congress found it necessary, in exercising this authority, to render them liable.

    Rather, the States' immunity from suit [in the State's own courts and in federal courts] is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today. Just the opposite, in fact: The Court considered this question under the two-part test articulated in Seminole Tribe: In acknowledging that the legislative history of the PRCA did not meet the Court's newly articulated standards, Justice Stevens noted that: The court followed the analysis in Florida Prepaid , first inquiring whether Congress identified a pattern of infringement by States.

    While noting that the legislative history in support of the CRCA, which included the report of the Copyright Office, was somewhat more substantial than that of the PRCA, the court found that the record was still inadequate to support the legislative enactment. Second, the court noted that in adopting the CRCA, Congress "barely considered the availability of state remedies for infringement. The Current Situation Copyright owners have but one arrow left in their quiver to prevent or deter infringement of their intellectual property rights by States. Possible Solutions Although the purpose of this oversight hearing is to explore the nature of the problem rather than to consider legislation to remedy the problem, it is important that this Subcommittee understand what alternatives Congress will have when, as I hope it will do, it decides to redress the imbalance created by the recent decisions of the Supreme Court in this area.

    The exercise of the spending power must be in pursuit of the general welfare; The condition must be unambiguous, enabling the States to exercise their choice knowingly; The conditioned spending must be related to the Federal project or program; and The condition must not be barred by other constitutional provisions. We have discussed our proposal with other interested parties and, in response to their comments, have modified it in some respects.

    This is not the occasion to address the details of our proposal or Senator Leahy's, but we hope that the next Congress will be in a position to consider and enact effective and constitutional legislation that will undo the damage caused by the Court's recent decisions.