Eleventh Amendment:
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 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.1 Thus, the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of § 5 of the Fourteenth Amendment.
2 The power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’s judgment will promote compliance.3 The principal judicial brake on this power to abrogate state immunity in legislation enforcing the Civil War Amendments is the rule requiring that congressional intent to subject states to suit be clearly stated.4
In the 1989 case of Pennsylvania v. Union Gas Co.,5 the Court—temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers (as opposed to its Fourteenth Amendment powers) may abrogate the Eleventh Amendment immunity of the states, so long as it does so with sufficient clarity. Twenty-five years earlier the Court had stated that same principle,6 but only as an alternative holding, and a later case had set forth a more restrictive rule.7 The premises of Union Gas were that by consenting to ratification of the Constitution, with its Commerce Clause and other clauses empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the Eleventh Amendment was a restraint upon the courts and not similarly upon Congress, and that the exercises of Congress’s powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the states to enforce congressional enactments. 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.
Pennsylvania v. Union Gas lasted less than seven years before the Court overruled it in Seminole Tribe of Florida v. Florida.8 Chief Justice Rehnquist, writing for a 5-4 majority, concluded Union Gas had deviated from a line of cases, tracing back to Hans v. Louisiana,9 that viewed the Eleventh Amendment as implementing the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.
10 Because the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.
11 Subsequent cases have upheld this interpretation.12
Section 5 of the Fourteenth Amendment, of course, is another matter. Fitzpatrick v. Bitzer,13 which was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment,
remains good law.14 This ruling has led to a significant number of cases that examined whether a statute that might be applied against non-state actors under an Article I power, could also, under section 5 of the Fourteenth Amendment, be applied against the states.15
In another line of case, a different majority of the Court focused not so much on the authority Congress used to subject states to suit as on the language Congress used to overcome immunity. Henceforth, the Court held in a 1985 decision, and even with respect to statutes that were enacted prior to promulgation of this judicial rule of construction, Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute
itself.16 This means that no legislative history will suffice at all.17
Indeed, at one time a plurality of the Court apparently believed that only if Congress refers specifically to state sovereign immunity and the Eleventh Amendment will its language be unmistakably clear.18 Thus, the Court held in Atascadero that general language subjecting to suit in federal court any recipient of Federal assistance
under the Rehabilitation Act was deemed insufficient to satisfy this test, not because of any question about whether states are recipients
within the meaning of the provision but because given their constitutional role, the states are not like any other class of recipients of federal aid.
19 As a result of these rulings, Congress began to use the magic words
the Court appeared to insist on.20 Later, however, the Court has accepted less precise language,21 and in at least one context, has eliminated the requirement of specific abrogation language altogether.22
Even before the decision in Alden v. Maine,23 when the Court believed that Eleventh Amendment sovereign immunity did not apply to suits in state courts, the Court applied its rule of strict construction to require unmistakable clarity
by Congress in order to subject states to suit.24 Although the Court was willing to recognize exceptions to the clear statement rule when the issue involved subjection of states to suit in state courts, the Court also suggested the need for symmetry
so that states’ liability or immunity would be the same in both state and federal courts.25