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.
Courts may open their doors for relief against government wrongs under the doctrine that sovereign immunity does not prevent a suit to restrain individual officials, thereby restraining the government as well.1 The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the state.2 The doctrine preceded but is most noteworthily associated with the decision in Ex parte Young,3 a case that deserves the overworked adjective, seminal.
Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiff railroad stockholders brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt. If the Supreme Court had held that the injunction was not permissible, because the suit was one against the state, there would have been no practicable way for the railroads to attack the statute without placing themselves in great danger. They could have disobeyed it and alleged its unconstitutionality as a defense in enforcement proceedings, but if they were wrong about the statute’s validity the penalties would have been devastating.4 On the other hand, effectuating constitutional rights through an injunction would not have been possible had the injunction been deemed to be a suit against the state.
In deciding Young, the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party.5 He presently was required to modify that decision and preclude suit when an official, the governor of a state, was sued in his official capacity,6 but relying on Osborn and reading Madrazo narrowly, the Court later held in a series of cases that an official of a state could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the state or in response to a statutory obligation of the state did not make the suit one against the state.7 Another line of cases began developing a more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, one that evidenced an increasing wariness toward affirmatively ordering states to relinquish state-controlled property8 and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.9
Two of the leading cases, as were many cases of this period, were suits attempting to prevent Southern states from defaulting on bonds.10 In Louisiana v. Jumel,11 a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the state.12 Then, In re Ayers13 purported to supply a rationale for cases on the issuance of mandamus or injunctive relief against state officers that would have severely curtailed federal judicial power. Suit against a state officer was not barred when his action, aside from any official authority claimed as its justification, was a wrong simply as an individual act, such as a trespass, but if the act of the officer did not constitute an individual wrong and was something that only a state, through its officers, could do, the suit was in actuality a suit against the state and was barred.14 That is, the unconstitutional nature of the state statute under which the officer acted did not itself constitute a private cause of action. For that, one must be able to point to an independent violation of a common law right.15
Although Ayers was in all relevant points on all fours with Young,16 the Young Court held that the injunction had properly issued against the state attorney general, even though the state was in effect restrained as well.
The act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of the complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subject in his person to the consequences of his individual conduct.17 Justice Harlan was the only dissenter, arguing that in law and fact the suit was one only against the state and that the suit against the individual was a mere
fiction remains a mainstay of our jurisprudence.19 It accounts for a great deal of the litigation brought by individuals to challenge the carrying out of state policies. Suits against state officers alleging that they are acting pursuant to an unconstitutional statute are the standard device by which to test the validity of state legislation in federal courts prior to enforcement and thus interpretation in the state courts.20 Similarly, suits to restrain state officials from taking certain actions in contravention of federal statutes21 or to compel the undertaking of affirmative obligations imposed by the Constitution or federal laws22 are common.
For years, moreover, the accepted rule was that suits prosecuted against state officers in federal courts upon grounds that they are acting in excess of state statutory authority23 or that they are not doing something required by state law24 are not precluded by the Eleventh Amendment or its emanations of sovereign immunity, provided only that there are grounds to obtain federal jurisdiction.25 However, in Pennhurst State School & Hospital v. Halderman,26 the Court, five-to-four, held that Young did not permit suits in federal courts against state officers alleging violations of state law. In the Court’s view, Young was necessary to promote the supremacy of federal law, a basis that disappears if the violation alleged is of state law. The Court also still adheres to the doctrine, first pronounced in Madrazo,27 that some suits against officers are
really against the state28 and are barred by the state’s immunity, such as when the suit involves state property or asks for relief which clearly calls for the exercise of official authority, such as paying money out of the treasury to remedy past harms.29
For example, a suit to prevent tax officials from collecting death taxes arising from the competing claims of two states as being the last domicile of the decedent foundered upon the conclusion that there could be no credible claim of violation of the Constitution or federal law; state law imposed the obligation upon the officials and
in reality the action was against the state.30 Suits against state officials to recover taxes have also been made increasingly difficult to maintain. Although the Court long ago held that the sovereign immunity of the state prevented a suit to recover money in the state treasury,31 it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.32 Beginning, however, with Great Northern Life Ins. Co. v. Read,33 the Court has held that this kind of suit cannot be maintained unless the state expressly consents to suits in the federal courts. In this case, the state statute provided for the payment of taxes under protest and for suits afterward against state tax collection officials for the recovery of taxes illegally collected, which revenues were required to be kept segregated.34
In Edelman v. Jordan,35 the Court appeared to begin to lay down new restrictive interpretations of what the Eleventh Amendment proscribed. The Court announced that a suit
seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.36 What the Court actually held, however, was that it was permissible for federal courts to require state officials to comply in the future with claims payment provisions of the welfare assistance sections of the Social Security Act, but that they were not permitted to hear claims seeking, or issue orders directing, payment of funds found to be wrongfully withheld.37 Conceding that some of the characteristics of prospective and retroactive relief would be the same in their effects upon the state treasury, the Court nonetheless believed that retroactive payments were equivalent to the imposition of liabilities which must be paid from public funds in the treasury, and that this was barred by the Eleventh Amendment. The spending of money from the state treasury by state officials shaping their conduct in accordance with a prospective-only injunction is
an ancillary effect which
is a permissible and often an inevitable consequence of Ex parte Young, whereas
payment of state funds . . . as a form of compensation to those wrongfully denied the funds in the past
is in practical effect indistinguishable in many aspects from an award of damages against the State.38
That Edelman in many instances will be a formal restriction rather than an actual one is illustrated by Milliken v. Bradley,39 in which state officers were ordered to spend money from the state treasury in order to finance remedial educational programs to counteract the effects of past school segregation; the decree, the Court said,
fits squarely within the prospective-compliance exception reaffirmed by Edelman.40 Although the payments were a result of past wrongs, of past constitutional violations, the Court did not view them as
compensation, inasmuch as they were not to be paid to victims of past discrimination but rather used to better conditions either for them or their successors.41 The Court also applied Edelman in Papasan v. Allain,42 holding that a claim against a state for payments representing a continuing obligation to meet trust responsibilities stemming from a 19th century grant of public lands for benefit of education of the Chickasaw Indian Nation is barred by the Eleventh Amendment as indistinguishable from an action for past loss of trust corpus, but that an Equal Protection claim for present unequal distribution of school land funds is the type of ongoing violation for which the Eleventh Amendment does not bar redress.
In Idaho v. Coeur d’Alene Tribe,43 the Court further narrowed Ex parte Young. The implications of the case are difficult to predict, because of the narrowness of the Court’s holding, the closeness of the vote (5-4), and the inability of the majority to agree on a rationale. The holding was that the Tribe’s suit against state officials for a declaratory judgment and injunction to establish the Tribe’s ownership and control of the submerged lands of Lake Coeur d’Alene is barred by the Eleventh Amendment. The Tribe’s claim was based on federal law—Executive Orders issued in the 1870s, prior to Idaho statehood. The portion of Justice Kennedy’s opinion that represented the opinion of the Court concluded that the Tribe’s
unusual suit was
the functional equivalent of a quiet title action which implicates special sovereignty interests.44 The case was
unusual because state ownership of submerged lands traces to the Constitution through the
equal footing doctrine, and because navigable waters
uniquely implicate sovereign interests.45 This was therefore no ordinary property dispute in which the state would retain regulatory control over land regardless of title. Rather, grant of the
far-reaching and invasive relief sought by the Tribe
would diminish, even extinguish, the State’s control over a vast reach of lands and waters long . . . deemed to be an integral part of its territory.46
A separate part of Justice Kennedy’s opinion, joined only by Chief Justice Rehnquist, advocated more broad scale diminishment of Young. The two would apply case-by-case balancing, taking into account the availability of a state court forum to resolve the dispute and the importance of the federal right at issue. Concurring Justice O’Connor, joined by Justices Scalia and Thomas, rejected such balancing. Young was inapplicable, Justice O’Connor explained, because
it simply cannot be said that a suit to divest the state of all regulatory power over submerged lands
is not a suit against the State.47
Addressing a suit by an independent state agency against state health officials, the Court, quoting Pennhurst, reiterated
that the general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought.48
The agency sought access to records of state-run hospitals in federal court. Six Justices upheld the effort: The relief sought was straightforward and prospective, and not a burdensome encroachment on state sovereignty.49
Thus, as with the cases dealing with suits facially against the states themselves, the Court’s greater attention to state immunity in the context of suits against state officials has resulted in a mixed picture, of some new restrictions, of the lessening of others. But a number of Justices have increasingly resorted to the Eleventh Amendment as a means to reduce federal-state judicial conflict.50 One may, therefore, expect this to be a continuingly contentious area.
Tort Actions Against State Officials
In Tindal v. Wesley,51 the Court adopted the rule of United States v. Lee,52 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the state and to obtain damages for the period of withholding. The immunity of a state from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.53 The reach of the rule is evident in Scheuer v. Rhodes,54 in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a state alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no
executive immunity from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.55