Congress’ Power To Authorize Suits Against States - Constitutional

Chisholm v. Georgia (1793): merchant sells supplies to Georgia and Georgia fails to pay

1. Held: a citizen of South Carolina can sue the State of Georgia. The Court held that supreme or sovereign power was retained by citizens themselves, not by the "artificial person" of the State of Georgia.

2. Reaction = adoption and ratification of the 11th amendment

Hans v. Louisiana (1890): Hans filed suit to insure that his bonds were valid

1. Held: 11th amendment invalidated citizens right to sue their own state.

Debate about meaning of 11th amendment

1. flatly prohibits federal court jurisdiction over all suits against states (the current view of the Court)

2. prevents only diversity jurisdiction, not federal questions jurisdiction

Three ways around state sovereign immunity

1. Pursuant to Ex Parte Young (1908) (railroad share holders sue attorney general of Minnesota to prevent his enforcing a law that regulatd railroad prices), state officers can still be sued for injunctive relief

2. States can waive their Eleventh Amendment sovereign immunity

3. Pursuant to Section 5 of the Fourteenth Amendment, Congress can abrogate state sovereign immunity and authorize private suits against the State

Fitzpatrick v. Bitzer (1975) – Whether the CRA of 1972, which authorized suits against state governments for employment discrimination is a valid exercise of congressional authority under Section 5 of the 14th amendment.

1. Held: Civil Rights Act of 1972 (authorized suits against state govt. for employment discrimination) is a valid exercise of congressional authority under Section 5 of 14th Amendment.

   1. Section 5 essentially amended the 11th amendment

   2. Congress can authorize suits against states via its Section 5 authority

Pennsylvania v. Union Gas (1988)

1. Plurality Held: Congress may abrogate sovereign immunity using its Commerce Clause Power

Seminole Tribe of Florida v. Florida (1995) – Seminole Tribe brought suit against Florida for violating good faith negotations requirement of the Indian Gaming Regulatory Act.

1. Held: Congress cannot abrogate state sovereign immunity pursuant to its power under the Indian Commerce Clause

   1. Such a violation of state sovereignty has to be pursuant to a valid exercise of congressional power

   2. Section 5 of 14th amendment is valid basis

   3. Commerce Clause is not a valid basis (overrules Union Gas)

      1. the opinion in Union Gas was fractured and was irreconcilable with Hans v. Louisiana

2. Held: Ex Parte Young’s ruling does not justify Tribe’s suit aginst Floriday’s governor in because certain IGRA provisions specifically prohibit it.

3. Dissent

   1. Souter

      1. Chisholm held that there was no immunity in diversity cases

      2. Eleventh Amendment gave states immunity in diversity cases only

      3. Hans v. Louisiana was wrongly decided because it assumed that states had immunity under federal questions jurisdiction

      4. Inappropriate to transform a common law rule into a constitutional rule

How far does Section 5 extend?

1. This determination will impact how much jursidction congress can give to courts to adjudicate suits against states for violations of federal statutes

   1. Congress has increased authority to do so when aggrieved party, interest, or group is one that receives “heightened scrutiny” under the Amendment

2. Congress’s burden in justifying prophylactic laws enabling citizens to sue states under Section 5 is inversely related to the burden that states must carry in passing the discriminatory laws in the first place

   1. If States...