At Dorf on Law, Eric Segall: Sovereign Immunity, Judicial Aggression, and the Rule of People not Law. From the introduction:
When can states be sued in federal court for violating federal law, assuming a valid cause of action under either a statute or the Constitution? This question has major implications for our federalist system. The possible answers are always, never, or sometimes, and the stakes of the answer are incredibly high. Too much accountability could expose the states to federal control in ways that could damage their finances and sovereignty, but too little accountability could jeopardize the supremacy of important federal laws and the Constitution. Sadly, the Supreme Court’s answer to this important question (sometimes) is incoherent and terrible policy as well. This term, in Penn East Pipeline v New Jersey, the Court doubled down on its own incoherence.
The Constitution speaks directly to the question under what circumstances states are allowed to assert sovereign immunity in federal courts. The 11th Amendment provides the following:
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 a citizen of another state or by citizens or subjects of any foreign state.
Unlike most of the Constitution's clauses that are subject to litigation, like the equal protection clause, the due process clause, and the First and Second Amendments, the 11th Amendment could not be more precise. It was ratified after the Court held in Chisholm v. Georgia that a citizen of South Carolina could sue Georgia for debts owed after the revolutionary war. The public strongly disagreed and the 11th Amendment was ratified by the states a little more than a year later.
The Amendment unequivocally bars all lawsuits, whether in law (damages) or equity (injunctive relief) in federal court brought by citizens of "another" state. If the Court cared about text, the 11th Amendment would be easy to interpret and apply.
But, as I've documented in detail, the Court does not care about text if doing so is contrary to the Justices' policy preferences.
He goes on to make some important points for originalist/textualists to grapple with.
Posted at 6:42 AM