• Former NAGTRI Visiting Fellow
    National Association of Attorneys General

Under the doctrine of “state sovereign immunity,” a state cannot be sued in federal and state court without its consent. Many academics and judges struggle to make sense of modern U.S. Supreme Court jurisprudence on sovereign immunity.1 While the Eleventh Amendment limits immunity to two specific situations in federal court,2 the Supreme Court held that immunity derives not from the Amendment, but “from the structure of the original Constitution itself.”3 Thus, the Court not only has expanded federal court immunity from suit well beyond the Eleventh Amendment’s explicit directives, but also has enshrined state sovereign immunity in state courts. As a result, in its own court, a state can invoke immunity even when sued under an otherwise valid federal law4 and has full authority to define the scope of their immunity from suits based on its own law. This has prompted the creation of a variety of sovereign immunity regimes among the states.

Section I of this monograph provides a quick overview of the history of state sovereign immunity, which plays a central jurisprudential role both in the current law and in theories that do not hold a majority of the Court. Then Section II walks through Supreme Court law and its application in federal courts, followed by an explanation of the four exceptions to the doctrine in Section III. Lastly, Section IV discusses sovereign immunity in state courts and lays out a handful of elements that most states include as part of their internal sovereign immunity law.

History of State Sovereign Immunity

There is considerable disagreement among legal scholars, and Supreme Court justices, over what legal authority underpins a state’s sovereign immunity. This disagreement has spawned several constitutional theories that try to make sense of the Eleventh Amendment and of precedent attempting the same.5 While a majority on the Supreme Court seems to have adopted one theory,6 other theories have dictated in the past and, in any event, every theory relies on history, in particularly the Framers’ understanding of the scope of the doctrine.7 A short synopsis of that history follows.

Sovereign immunity finds its origins in English common law and the king’s position at the “apex of the feudal pyramid.”8 In that pyramid, lords could not be sued in their own courts, “not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”9 Thus, lords could only be sued in the courts of their superiors, but, for the king, “there was no higher court in which he could be sued.”10

While the Constitution did not directly address state sovereign immunity, it certainly was discussed at Constitution ratification debates and, by many accounts, garnered the strong support of prominent Framers,11 though not all.12 Nevertheless, its textual absence posed a problem that the Supreme Court confronted shortly after ratification in Chisholm v. Georgia.13 In a suit brought by a South Carolina citizen against the state of Georgia to recover a Revolutionary War debt, the Court held that sovereign immunity did not protect the state of Georgia when sued by a citizen of another state in federal court.14 The Court adopted a literal reading of the text of Article III, which extends federal judicial power to “all Cases” involving federal law “in which a State shall be a party” and to “Controversies . . . between a State and Citizens of another State[,]”15 in finding that the federal courts had jurisdiction to hear the suit.

The decision surprised all and infuriated most,16 and, within two years, Congress had passed, and the states ratified, the Eleventh Amendment with near unanimity:17

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.18

In the past two decades, nearly every major opinion on sovereign immunity—majority, concurrence, or dissent—recounts some version of this tale. This repetition only seems justified by the fact that the tale simply doesn’t add up. The decisive reaction to Chisholm and the ringing endorsements from both federalists and antifederalists still cannot be squared with the text of the Eleventh Amendment, so much so that a “‘literal’ interpretation of the Eleventh Amendment has almost no adherents.”19 Ultimately, this history has served as a foundation for the Court’s jurisprudence and helps to explain its atypical approach in this area. That jurisprudence follows in the next section.

State Sovereign Immunity Doctrine

Under the doctrine of state sovereign immunity, nonconsenting states are immune from suit unless there was “a surrender of this immunity in the plan of the [Constitutional] convention.”20 To determine whether there was a surrender of immunity in a specific situation, courts examine “history and experience and the established order of things” as well as the “fundamental postulates implicit in the constitutional design.”21 As such, the text of the Amendment is not dispositive,22 a fact that has produced outcomes in apparent conflict with basic canons of statutory interpretation.23 This analysis in recent cases hones in on the impact that a denial of immunity may have on the state’s “dignity”24 and has at times employed Tenth Amendment principles to support this new focus.25

Applying this comprehensive historical test, the Court has held that a nonconsenting state can invoke sovereign immunity in suits brought by its own citizens in federal court;26 brought by anyone in a federal administrative procedure;27 in suits brought by foreign states;28 and in suits brought by private citizens in admiralty.29 Conversely, states cannot invoke sovereign immunity when sued by the federal government in federal court to enforce federal laws;30 by another state in federal court;31 by anyone in another state’s courts;32 in federal court on appeal of a state court conviction alleging a violation of federal law;33 or in a federal Bankruptcy court proceeding.34

If immunity is available, the state must nevertheless assert it, because it “does not automatically destroy original jurisdiction. Rather, [it] grants the State a legal power to assert a sovereign immunity defense should it choose to do so. The State can waive the defense. Nor need a court raise the defect on its own. Unless the State raises the matter, a court can ignore it.”35

While ample uncertainty remains regarding the soundness, let alone the appropriate application, of this jurisprudence, this is but a portion of the Supreme Court’s broader sovereign immunity doctrine. The Court has also enumerated exceptions to the general rule, which follow in the next section.

Exceptions to Eleventh Amendment Immunity

There are four situations in which state sovereign immunity cannot be invoked in federal court. The first three are exceptions to the rule: congressional abrogation, the Ex Parte Young exception, and voluntary waiver. The fourth—when the entity sued is not an “arm of the state”—is less an exception than it is a case where immunity is not applicable in the first place, because the state is technically not being sued.

Congressional Abrogation

Congress has the ability to abrogate sovereign immunity and compel a state to court if two conditions are met. First, Congress must have “unequivocally expressed its intent to abrogate the immunity.”36 That intent is sufficiently clear if it is “obvious from ‘a clear legislative statement[,]’”37 which must be more definitive than a “general authorization for suit in [] court.”38 In Seminole Tribe, the Court found an unequivocal expression of intent in the Indian Regulatory Gaming Act, through the Act’s strongly-worded jurisdictional clause and the “various provisions” in that Act that reinforced the intent to abrogate sovereign immunity.39

In addition to an unequivocal expression of intent to abrogate, Congress must have acted “pursuant to a valid exercise of power”—that is the relevant statute must have been “passed pursuant to a constitutional provision granting Congress [the] power [to abrogate.]”40 This condition has rarely been satisfied: only twice has the Court found a constitution provision granting the power to abrogate, and only one of those cases is still good law.41 In Fitzpatrick v. Bitzer, the Court held that Section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce [the Amendment], by proper legislation,”42 also gives Congress the power to abrogate sovereign immunity.43 Therefore, a law that enforces, for example, the due process clause or equal protection clauses of the Fourteenth Amendment and clearly expresses the intent to abrogate sovereign immunity will pass constitutional muster.

This exception has additional limitations, because developments in Fourteenth Amendment jurisprudence also curb Fitzpatrick’s applicability. For example, since Fitzpatrick, the Court has held that laws passed pursuant to Section 5 are only valid if “there is congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”44 As such, Congress’s power to abrogate under Section 5 only attaches to statutory sections that specifically remedy “conduct transgressing the Fourteenth Amendment’s substantive provisions.”45 In practice, this means that some causes of action within a specific law may abrogate immunity, while others do not.46

Ex Parte Young Exception

Second, while state officials can generally invoke sovereign immunity when sued in their official capacity,47 they cannot do so in one specific instance. In Ex Parte Young, the Supreme Court held that a private litigant can bring suit against a state officer for prospective injunctive relief in order to end “a continuing violation of federal law.”48 A state official who enforces “‘an unconstitutional legislative enactment . . . comes into conflict with the superior authority of [the] Constitution,’ and therefore is ‘stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.’”49

To determine when Ex Parte Young applies, courts perform a “straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”50 The Supreme Court has stressed that the focus of the inquiry is the relief sought, not who is bringing the claim.51 While that bar may seem low, courts nevertheless must hesitate to permit an Ex Parte Young action “where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right.”52

Waiver of Sovereign Immunity

Third, states always have the option to voluntarily waive state sovereign immunity. Sovereign immunity is a “personal privilege” that a state may waive “at [its] pleasure,”53 either by state statute (which, in some cases, gives a state official the authority to make the decision), state Constitution, or by acceptance of federal funds through a federal program.

The Supreme Court has created a “stringent” test for determining whether a state has voluntarily waived its Eleventh Amendment immunity, one that “will be strictly construed, in terms of its scope, in favor of the sovereign.”54 A state voluntarily waives this immunity if the text of the relevant statute “unequivocally express[es]” the state’s intent to do so.55 The scope of the waiver will extend no further than what the state unequivocally expresses, whether that expression indicates a waiver only for a particular type of relief sought56 or a waiver only in a specific court.57 Mere participation in a federal program is not sufficient,58 and if generality or ambiguity in the relevant statute gives way to multiple interpretations, “courts will not consider a state to have waived” its immunity.59 Notably, while state law may factor in this inquiry, “whether a particular set of state laws, rules, or activities amounts to a waiver of the State’s Eleventh Amendment immunity is a question of federal law, not state law.”60

It is less clear how this stringent test applies when a state effects a waiver through statutorily-permitted “affirmative litigation conduct.”61Lapides v. Board of Regents dealt with a case against Georgia filed in Georgia state court alleging violations of both federal and state law. The state by its own admission had waived its immunity from such suits under its own laws in its own courts but the issue of the federal claims remained. The Georgia Attorney General’s Office voluntarily removed the case to federal court seeking to use the advantage of the federal court to benefit the officials sued in their personal capacities and then sought to have the state law claims remanded to the state court. The Supreme Court held, though, that on those facts—that is, when a state voluntarily waives state-court immunity in a state law action and then removes that action to federal court—the state has waived the immunity it would otherwise have from suit in federal court.62 Notably, the Court shifted its focus from the purported financial impact on the state to the “unfair tactic advantages” that a stricter rule would gift the state, justifying this shift on the “Amendment’s presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness.”63 At least where the state voluntarily chose to come to federal court, it could not belatedly argue that the state official’s conduct in failing to raise an immunity defense could be excused.64

Left conspicuously unanswered were two key questions: (1) what is the effect of removal when the state did not waive immunity in state court and (2) what in the inquiry changes when there are also federal claims at issue.65 Circuit courts are split on whether to interpret Lapides narrowly to cover only voluntary removal or more broadly to cover any affirmative litigation acts intended to “achieve litigation advantages.”66

“Arm of the State” Doctrine

Finally, Eleventh Amendment immunity does not extend to all “lesser entities” associated with the state; rather it extends only to entities that the Court considers to be “arms” or “instrumentalities” of the state.67 The Court, by its own admission, has yet to provide a comprehensive test here, although it has directed courts to at least examine the “relationship between the sovereign and the entity in question”68 and the “essential nature and effect of the proceeding.”69 Varying weight has been given to two factors: the degree of state control over the entity and the state-law classification of the entity.70 The only factor singled out as “of considerable importance” is whether the state is “obligated to bear and pay [any potential legal] indebtedness of the [entity].”71 For this reason, towns, counties and other political subdivisions of the state cannot invoke sovereign immunity in federal courts, even if they exercise a “slice of state power.”72 Also, because indemnification does not affect the legal obligation to pay, the inquiry is unchanged when a third party would indemnify the relevant entity73 or when the state would indemnify a state official in a suit against him in his individual capacity.74

Furthermore, for immunity purposes, multistate entities created via the Compact Clause75 are presumed to not be arms of the member states, unless “there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose.”76 If the facts do not indicate a clear answer, then the “twin purposes of the Eleventh Amendment” determine the question: does granting immunity protect the state’s dignity and its treasury?77 Thus, in Hess v. Port Authority Trans-Hudson Corporation, when indicators of immunity proved inconclusive, the Court found that the entity was not an arm, based almost exclusively on the entity’s “anticipated and actual financial independence” and its “long history of paying its own way.”78

Given the lack of clear definition for “arm,” there is substantial divergence among the circuits on the appropriate factors or the balance thereof, other than the added weight given to financial responsibility factor.79 This area of the law has taken on increasing importance of late because of the explosion of private contracting and public-private partnerships at the state level.

The next section turns to the other side of state sovereign immunity doctrine, that is, the state’s sovereign immunity in its own courts. In this instance, the state holds the authority to determine the scope of its immunity.

“Internal” State Sovereign Immunity

When a suit is brought against a state in its own court, the state decides whether it is immune from suit. This section walks through the Supreme Court’s decision in Alden v. Maine, which confirmed the state’s primacy in its own courts and Congress’s inability to abrogate sovereign immunity therein. Then the section summarizes the different choices that states have made regarding their immunity, before concluding with an overview of important aspects of that immunity where states take different approaches.

Alden v. Maine – Sovereign Immunity in State Courts

Until the turn of the century, the Supreme Court had exclusively decided questions of state sovereign immunity as it applies to federal court litigation.80 On occasion, however, it offered strong dicta that sovereign immunity was at its apex in the state’s own court.81 Alden v. Maine not only affirmed that dicta but also placed sovereign immunity in the state-court context beyond Congress’ abrogation power. As a case that concerned a federal cause of action in state court, Alden offered a fresh challenge to the atextual approach employed thus far. Where before, the Court’s immunity doctrine purported to fill inexplicable textual gaps in the Eleventh Amendment,82 now the Court confronted the issue of in which courts a state was immune, touching on a substantially less ambiguous part of the Amendment’s text and precedent.83 After all, “the state forum renders the Eleventh Amendment beside the point.”84 Nevertheless, the Court used its comprehensive approach to hold that a state possesses sovereign immunity from private suit in its own courts, and Congress cannot abrogate it through its Article I powers.85

First, the Court looked at history for the “original understanding of the Constitution” and determined that “[t]he concerns voiced at the ratifying conventions, the furor raised by Chisholm, and the speed and unanimity with which the Amendment was adopted . . . underscore the jealous care with which the founding generation sought to preserve the sovereign immunity of the States.”86 Then turning to the structure of the Constitution, the Court recommitted to its atextual approach and examined the “fundamental postulates implicit in the constitutional design,”87 namely how an abrogation power would impact federalism principles.88 Naturally, this brought Tenth Amendment case law into the equation, with the Court condemning the state-law cause of action as not “consistent with the constitutional sovereignty of the States”89 and a “[denigration of] separate sovereignty of the States.” Of course, state courts are still obligated to uphold and enforce federal law, but it would be anomalous to hold that “Congress may in some cases act only through instrumentalities of the States.”90 The Court concluded by harkening Erie R. Co. v. Thompkins and, like the facts in that case, found the facts before it “an invasion of the authority of the State and, to that extent, a denial of its independence.”91

Ultimately, Alden confirmed state-court sovereign immunity for both federal and state law claims, which lower courts have wrestled with ever since.92 However, states had operated as if immunity for the latter claim had been theirs, either to keep or surrender. The next section walks through the different directions that states took their sovereign immunity, beginning with their state constitutions.

Codification of Sovereign Immunity

Although the original Constitution and the Eleventh Amendment failed to clarify how common law sovereign immunity interacts with Article III, it appears that the Framers believed that they possessed sovereign immunity with respect to state law.93 Most states have chosen to codify this immunity, or the version of it that they deemed appropriate, in their state constitutions. The largest portion of those states maintain the status quo and establish internal immunity as a jurisdictional bar from suit.94 Of those states, nearly all gave their legislature the authority to consent or waive that immunity by legislation,95 and some even extended it to all political subdivisions.96 The second camp chose to waive internal immunity in their constitutions, in most cases giving their legislature the inverse authority to create immunity by legislation.97 The remaining states did not cover immunity in their constitutions and have developed different systems either by legislation or court decision. The Supreme Court in at least one of those states created internal immunity on its own accord.98

Common Components of Internal Sovereign Immunity Regimes

Despite these different baselines, most state legislatures have legislative authority to determine the suability of the state and the immunity regimes that they created share a handful of components. First, no state, even those whose constitutions did not give waiver authority to the legislature, maintains absolute internal immunity from suit.

Second, most states have created their own Tort Claims Act,99 which establishes a procedural requirement for suing the state, limits on damages or attorney fees, and rules for challenging on appeal.100 A common wrinkle not found in Eleventh Amendment law involves the suability of state officials. While state officials are generally entitled to sovereign immunity established in these acts, many will immunize an official’s “discretionary” acts—that is the acts of creating policy—and allow suits only based on “ministerial” acts of implementing that policy.101

Finally, many states also have settled on an administrative process for dealing with claims against the state. This may include a separate judiciary court, like a state Court of Claims,102 or a commission or board that has sole authority to determine whether the relevant state statute grants sovereign immunity (or a waiver of it, depending on the jurisdiction).[103]

Conclusion

Despite the confusion and disagreement surrounding the Eleventh Amendment, as it stands, the law of state sovereign immunity provides states with ample protection from suit and ample discretion to decide which situations warrant a waiver. Only in limited instances can the state itself be sued against its will and even the doctrine’s many wrinkles tend to favor of the state as sovereign.

Endnotes

  1.   Alfred Hill, In Defense of our Law of Sovereign Immunity, 42 B.C.L. Rev. 485, 485 n.2 (2001) (offering a partial list of about a dozen detractors).
  2.   U.S. Const. amend. XI.
  3.   Alden v. Maine, 527 U.S. 706, 728 (1999).
  4.   Id. at 754.
  5.   For a review of those competing theories, see Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).
  6.   Id. at 1825 (“[F]or more than a century the Supreme Court has treated the Amendment as merely indicative of a broader underlying constitutional immunity. This “immunity” theory maintains that the Amendment is not the exclusive, or even the primary, source of state sovereign immunity.”).
  7.   Clark, supra note 5, at 1820; see also William Baude, Sovereign Immunity and The Constitutional Text, 103 Va. L. Rev. 1, 3-9 (2017) (explaining the differences in each theory’s historical approach).
  8.   Nevada v. Hall, 440 U.S. 410, 415 (1979). Courts and commentators regularly refer to the old English Law adage, “the King can do no wrong,” see 5 Kenneth Culp Davis, Administrative Law Treatise 6-7 (2d ed. 1984), with many recognizing that the saying was, in large part, a convenient fiction. Hall, 440 U.S. at 415 and n. 7. The Framers rejected the fiction while recognizing the importance of the structural aspects of immunity as a foundation of the “right to govern.” Hall, 440 U.S. at 415-16.
  9.   Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).
  10.   Hall, 440 U.S. at 415.
  11.   See, e.g., The Federalist No. 81, at 508 (Alexander Hamilton) (H. Lodge ed. 1908) (“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption . . . is now enjoyed by the government of every State in the Union.”); 3 Debates on the Adoption of the Federal Constitution 533 (James Madison) (J. Elliot ed. 1854) (“Its jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court”); see also id. at 555 (John Marshall) (“It is not rational to suppose that [a state as] sovereign power should be dragged before a court.”).Some observers point to other statements by these very men as evidence that their support is less certain. See generally Susan Randall, Sovereign Immunity & the Uses of History, 81 Neb. L. Rev. 1 (2002).
  12.   Those in favor of a narrower immunity point, for instance, to statements by James Wilson, 3 Debates on the Adoption of the Federal Constitution at 555 (“the government of each state ought to be subordinate to the government of the United States.”), and by Edmund Randolph, 3 id. at 573 (“whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party.”). See also Alden, 527 U.S. at 772-84 (Souter, J., dissenting).
  13.   2 U.S. 419 (1793).
  14.   See 2 U.S. at 450-51 (opinion of Blair, J.); id. at 466 (Wilson, J.); id. at 469 (Cushing, J.); id. at 479 (Jay, C.J.).
  15.   U.S. Const. art. III, § 2.
  16.   See Hans v. Louisiana, 134 U.S. 1, 11 (1890) (stating that the decision in Chisolm created “a shock of surprise throughout the country”); 1 Charles Warren, The Supreme Court in United States History 96 (1928) (“The decision fell upon the country with a profound shock.”). See also Clark, supra note 5, at 1823 (“There was widespread sentiment that the Constitution should neither permit individuals to sue states nor empower the federal government to coerce state compliance with any resulting judgments.”).
  17.   4 Annals of Cong. 30-31, 476-78 (1794) (the Senate divided 23 to 2; the House 81 to 9).
  18.   U.S. Const. amend. XI. An account of the history of the passage of the Eleventh Amendment can be found in John Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1926-33 (1983). The speed and near unanimity with which this matter was taken up and resolved has often been cited by the Supreme Court as proof that, despite the Chisholm holding, the national consensus in 1793 strongly favored sovereign immunity.
  19.   Jonathan R. Siegel, Waivers of State Sovereign Immunity & Ideology of the Eleventh Amendment, 52 Duke L.J. 1167, 1174 (2003). For example, nothing in the amendment prohibits a citizen from suing her own state, which has been labelled “an absurdity on its face.” Hans, 134 U.S. at 15. But see Clark, supra note 5, at 1835-38 (arguing that certain assumptions underlying the “absurdity” claim in Hans are faulty and that the Amendment would have made perfect sense to the Framers).
  20.   Hans, 134 U.S. at 13 (citing The Federalist No. 81, at 508 (Alexander Hamilton)); Alden, 527 U.S. at 728; Principality of Monaco v. Mississippi, 292 U.S. 313, 322-23 (1934).
  21.   Alden, 527 U.S. at 727 (citing Hans, 134 U.S. at 14), 729.
  22.   Hans, 134 U.S. at 15 (calling a strict textualist approach to the Eleventh Amendment “an attempt to strain the Constitution and the law to a construction never imagined or dreamed of’); Alden, 527 U.S. at 727, 730 (“To rest on the words of the Amendment alone would be to engage in the type of ahistorical literalism we have rejected in interpreting the scope of the States sovereign immunity since the discredited decision in Chisholm.”); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 69 (1996).
  23.   See, e.g., Blatchford, 501 U.S. at 775 (affirming state immunity in suits brought by Native American tribes, even though Native Americans are not mentioned in the Eleventh Amendment); see also Baude, supra note 7, at 10-11 (noting that the Supreme Court has found immunity despite “the absence of constitutional text that says so in so many words, and despite the presence of a constitutional amendment that seems to pointedly exclude broad immunity”).
  24.   See Peter J. Smith, States as Nations: Dignity in Cross-Doctrinal Perspective, 81 Va. L. Rev. 1, 11-20 (2003) (discussing dignity’s growing prominence starting with Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) and reaching its pinnacle with Alden). This upstart justification has been called into question. See Alden, 527 U.S. at 801 (Souter, J., dissenting) (referring to the Court’s resort to dignity interests as “symptomatic of the weakness of [its] structural notion” and “thoroughly anonymous”).
  25.   Alden, 527 U.S. at 713-14 (discussing the rights reserved to the states), 731-35 (discussing Congress’s enumerated powers and citing Tenth Amendment cases).
  26.   Hans, 134 U.S. at 16, 15 (finding that that “suability of a State without its consent was a thing unknown to the law” and therefore “was not contemplated by the Constitution when establishing the judicial power of the United States”).
  27.   Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 756 (2002) (finding that federal administrative proceedings are “the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union” and that the Framers would have considered it to be an “affront to the State’s dignity” to find otherwise).
  28.   Monaco, 292 U.S. at 322-23 (noting that, even though the Eleventh Amendment did not explicitly cover foreign states, the states retain “the same immunity that they enjoy with respect to suits by individuals whether citizens of the United States or citizens or subjects of a foreign State”).
  29.   Ex parte New York, 256 U.S. 490 (1921) (holding so despite the Amendment only mentioning cases “in law or equity”).
  30.   Seminole Tribe, 517 U.S. at 44 (reaffirming United States v. Texas, 143 U.S. 621, 644-45 (1892) (“[The Framers] could not have overlooked the possibility that . . . the permanence of the Union might be endangered if to some tribunal was not entrusted the power to determine [controversies between a state and a foreign state] according to the recognized principles of law.”)).
  31.   Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264 (1821) (Marshall, C. J.).
  32.   Nevada v. Hall, 440 U.S. 410, 426-27 (1979) (holding that neither the Eleventh Amendment nor comity principles command one state to honor the sovereign immunity that another state has in its own courts). Some commentators believe that Hall was primed to be overruled in Franchise Tax Board v. Hyatt, 136 S. Ct. 1277 (2016), but for the untimely passing of Justice Antonin Scalia, which created a tie on the sovereign immunity issue in that case. See Baude, supra note 7, at 3.
  33.   See Cohens, 19 U.S. 264.
  34.   Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 362 (2006) (holding that the Bankruptcy Clause, U.S. Const. art. I, § 8, cl. 4, “reflects the States’ acquiescence in a grant of congressional power to subordinate to the pressing goal of harmonizing bankruptcy law sovereign immunity defenses that might have been asserted in bankruptcy proceedings”). See also Baude, supra note 7, at 22.
  35.   Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (citations omitted).
  36.   Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).
  37.   Seminole Tribe, 517 U.S. at 55 (quoting Blatchford, 501 U.S. at 786).
  38.   Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238-239 (1985); Seminole Tribe, 517 U.S. at 55.
  39.   Seminole Tribe, 517 U.S. at 56-57 (where, to be sure, Congress nevertheless failed the second step).
  40.   Id. at 55 (quoting Mansour, 474 U.S. at 68), 59.
  41.   Before Seminole Tribe overruled Union Gas,the Commerce Clause was a second. Id. at 55. The Court has noted that the Fourteenth Amendment may be appropriately unique in this regard, because, unlike other parts of the Constitution, “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.” Id. at 65-66.
  42.   U.S. Const. amend. XIV, § 5.
  43.   427 U.S. 445 (1976).
  44.   City of Boerne v. Flores, 521 U.S. 507 (1997).
  45.   Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639 (1999).
  46.   Compare Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) (finding that one section of the Family & Medical Leave Act, which allowed private individuals to sue employers, including states, that did not give sufficient leave for family-related reasons (birth or adoption), remedied sex-based discrimination in family-related leave practices), with Coleman v. Court of Appeals, 566 U.S. 30 (2012) (alternatively finding that a different FMLA section—which created a private cause of action for damages against employers that did not give sufficient leave for self-care reasons—did not remedy 14th Amendment harms).
  47.   See Lewis v. Clarke, no. 15-500, slip op. at 6 (April 27, 2017) (stating that suits against state officials in their official capacity are barred because these suits “represent only another way of pleading an action against an entity of which an officer is an agent”) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation marks omitted)).
  48.   209 U.S. 123 (1908).
  49.   Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254 (2011) (quoting ex Parte Young, 209 U.S. at 159-60). Note also that a state is not a “person” suable under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989). State officials sued in the official capacity are persons under § 1983 but are entitled to sovereign immunity, because the suit is functionally a suit against the state. Hafer v. Melo, 502 U.S. 21 (1991). Lewis v. Clarke, No. 15-500 (U.S. April 27, 2017) also fleshed out this distinction between individual and official suits, holding that sovereign immunity does not shield state officials when sued in their personal or individual capacity, even if the state would indemnify that employee. Borrowing from “arm-of-the-state” principles, infra Section II.D, the Court reasoned that the “critical inquiry is who may be legally bound by the court’s adverse judgment, not who will ultimately pick up the tab.” Lewis, slip op. at 9.
  50.   Compare Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (allowing suit against a state official that, the plaintiff pled, did not produce medical records as required by federal law and seeking production of those medical records) with Edelman v. Jordan, 415 U.S. 651 (1974) (not allowing exception where the injunctive relief sought was to obtain payment from State treasury, i.e., not properly characterized as prospective).
  51.   Stewart, 563 U.S. at 256-57 (allowing an independent state agency to suit state officials for production of documents).
  52.   Seminole Tribe, 517 U.S. at 74. (finding that the intricate multiple-provision remedial scheme in the Indian Gaming Regulatory Act precludes an Ex Parte Young remedy).
  53.   Clark v. Barnard, 108 U.S. 436, 447-48 (1883).
  54.   Sossamon v. Texas, 563 U.S. 277, 285 (2011) (first quoting College Savings Bank, 527 U.S. at 675, then quoting Lane v. Peña, 518 U.S. 187, 192 (1996)).
  55.   Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985). When the case concerns a federal program that the state has joined, the “relevant statute” is the governing federal statute that creates conditions for receipt of federal funds.
  56.   Lane, 518 U.S. at 192 (finding waiver of immunity for certain forms of relief does not amount to a waiver for monetary claims).
  57.   College Savings Bank, 527 U.S. at 676 (holding that a waiver of immunity in state courts does not amount to waivers in federal court); Pennhurst State School and Hospital v. Haldeman, 465 U.S. 89, 99 (“a State’s constitutional interest in immunity encompasses not merely whether it may be sued but where it may be sued”); see also Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573 (1946) (where Court found clear indication of waiver in state court, but refused to extend in federal court because the statute only said waiver in “court of competent jurisdiction”), affirmed in Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 75-76 (2000) (finding waiver for state and federal court, where statute stated waiver in any “State or Federal court of competence”).
  58.   College Savings Bank, 527 U.S. at 680.
  59.   Sossamon, 563 U.S. at 287. In Sossamon, the Court held that states did not waive immunity by accepting federal funds pursuant to the Religious Land Use & Institutionalized Persons Act, which created a private cause of action against states for “appropriate relief.” § 2000cc-2(a). The Court determined that “appropriate relief” was “open-ended and ambiguous” to the point that it could not “be certain that the state in fact [consented].” 563 U.S. 285-86. See also Florida Dept. of Health & Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U.S. 147, 149-50 (1981) (per curiam) (finding no waiver in federal court where the State stated its intention to “sue and be sued”).
  60.   Lapides v. Bd. of Regents, 535 U.S. 613, 622-23 (2002).
  61.   Lapides, 535 U.S. at 620 (noting that, in this context, the “judicial need to avoid inconsistency, anomaly, and unfairness” trumps the “State’s actual preference or desire, which might, after all, favor selective use of ‘immunity’ to achieve litigation advantages”).
  62.   Id. (finding waiver, even though the state claimed that the Attorney General was not authorized to waive).
  63.   Id. at 620.
  64.   Cf. Ford Motor Co. v. Dep’t. of Treasury of Indiana, 323 U.S. 459 (1945) (where state defendant sued initially in federal court raised immunity for first time in Supreme Court, it was still entitled to the benefit of the defense).
  65.   Lapides,535 U.S. at 617-18. The Court remanded the case to the district court and left it to that court to determine when further remand to the state court was appropriate, seeming to imply that the state court, in this pure state-law claim, should determine whether the original waiver was valid under state law. Id. at 624.
  66.   Id. at620. Compare In re Bliemeister, 296 F.3d 858, 862 (9th Cir. 2002) (finding waiver of immunity where the state makes a “tactical” decision to argue the merits of the case and gain an unfair advantage of hearing the court’s substantive comments on the merits of a case before asserting immunity), with Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir. 2003) (stating that “the rule [of Lapides] is consistent only with the view that the immunity defense in cases otherwise falling within a federal court’s original jurisdiction should be treated like the defense of lack of personal jurisdiction”).
  67.   Alden, 527 U.S. at 756.
  68.   Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997).
  69.   Id..
  70.   Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 51 (1994); see also Lewis, slip op. at 10 (noting that courts have immunized private insurance companies acting as fiscal intermediaries in federal programs because they are essential state instrumentalities “as the governing regulation makes clear”).
  71.   Id.
  72.   Northern Insurance Co. v. Chatham County, 547 U.S. 189, 193 (2006).
  73.   Doe, 519 U.S. at 429-31 (where the Court found a state university to be an arm of the state in an action brought by a state employee, even when the Federal Government had agreed to indemnify the state).
  74.   Lewis, slip op. at 9. See discussion on individual capacity suits against state officials, supra note 49.
  75.   U.S. Const. art. 1, § 10.
  76.   Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979).
  77.   Hess, 513 U.S. at 51. The court purports to create a test specifically for multistate compacts, but it appears to employ an identical analysis.
  78.   Id. at 50.
  79.   See Appendix A.
  80.   Hall, 440 U.S. at 410, declined the states immunity from suit in the courts of other states.
  81.   See, e.g., Nevada v. Hall, 440 U.S. 410, 414 (1979) (“The immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries.”); Hans v. Louisiana, 134 U.S. 1, 13 (1890) (“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.”) (quoting The Federalist No. 81 (Alexander Hamilton)); Beers v. Arkansas, 61 U.S. 527, 529 (1858) (“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.”).
  82.   See discussion, supra note 19.
  83.   See Baude, supra note 7, at 16 (“For those still focused on the text of the Eleventh Amendment or of Article III, this may seem gratuitously antitextual. . . . Even if you think that the Eleventh Amendment should be read to ban federal suits by all citizens, it bans only federal suits. Even if you think that Article III preserves state sovereign immunity and that Congress can’t change Article III, suits in state court have nothing to do with Article III.”).
  84.   Alden, 527 U.S. at 761 (Souter, J., dissenting); U.S. Const. amend. XI (“The Judicial power of the United States . . . .) (emphasis added).
  85.   Alden, 527 U.S. at 741, 743,748-49 (confirming sovereign immunity in state courts by looking at the Founders’ silence regarding state court immunity during debate over federal court immunity, unanimity in passing of Eleventh Amendment, and federalism principles).
  86.   Id. at 741 (confirming this interpretation of history with the early congressional practice of never creating state-court causes of action).
  87.   Id. at 729; see also id. at 731 (stating that sovereign immunity is not “directly related to the scope of judicial power established by Article III of the Constitution, but inheres in the system of federalism established by the Constitution”).
  88.   The Supremacy Clause on its own cannot provide the means to overcome immunity, said the Court, because it would run counter to the logic of Hans and because that clause “merely raises the question whether a law is a valid exercise of the national power.” Id. at 731 (citing The Federalist No. 33, at 204 (A. Hamilton) (“But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land”) and Printz v. United States, 521 U.S. 898, 924-25 (1997)).
  89.   Id. at 732.
  90.   Id. at 754.
  91.   Id. (quoting 304 U.S. 64, 78-79 (1938).
  92.   In fact, dicta in Alden has led many courts to find that there are now two species of sovereign immunity. See supra section II.C. See, e.g., Beaulieu v. Vermont, 807 F.3d 478, 483 (2d Cir. 2014) (noting two species of immunity, federal-court immunity and a “broader sovereign immunity, which applies against all private suits, whether in state or federal court”); Murphy v. Smith, 844 F.3d 653 (7th Cir. 2016); Lombardo v. Pa., Dep’t of Pub. Welfare, 540 F.3d 190, 194-95 (3d Cir. 2008) (seeing an immunity from suit in federal court and a broader immunity from liability in all venues); Stewart v. North Carolina, 393 F.3d 484, 487-88 (4th Cir. 2005); McCants v. NCAA, No. 1:15-cv-176, 2017 U.S. Dist. LEXIS 64887 (M.D.N.C. Apr. 26, 2017); see also Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559 (2001); Jessica Wagner, Note, Waiver by Removal? An Analysis of State Sovereign Immunity, 102 Va. L. Rev. 549 (2016).
  93.   See supra Section I; Clark, supra note 5, at 1838 (“[T]he Constitution conferred no power on the federal government to regulate or coerce states, and that the Constitution imposed no affirmative obligations on states necessitating suits by individuals against states”); Alden, 527 U.S. at 715-16 (“[T]he doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified.”); Chisholm v. Georgia, 2 U.S. 419 (1793) (Iredell, J., dissenting) (“I believe there is no doubt that neither in the State now in question, nor in any other in the Union, any particular Legislative mode, authorizing a compulsory suit for the recovery of money against a State, was in being either when the Constitution was adopted, or at the time the judicial act was passed.”); id. at 452 (opinion of J. Blair) (When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in State-Court; . . .”).
  94.   E.g., Ark. Const. art. V, § 20 (the state “shall never be made a defendant in any of her courts”); W. Va. Const. art. VI, § 35;.
  95.   But see Ala. Const. art. I, § 14.
  96.   Fla Const. art. X, § 13.
  97.   La. Const. art. XII, §10; Ill. Const. art. XIII, §4; Neb. Const. art. V, § 22.
  98.   See In re Substitute for Senate Bill, 21 Colo. 69 (1895), overruled by Proffitt v. Colorado, 174 Colo. 97 (1971).
  99.   States waive immunity for contractual claims as well. E.g., N.H. Rev. Stat. § 491:8.
  100.   See, e.g., Alaska Stat. §§ 09.50.250-.300; Mo. Stat. §§ 537.600 -537.650; N.H. Rev. Stat. §§ 541-B:1 to 541-B:23; Idaho Code § 6-903.
  101.   Alaska Stat. §§ 09.50.250-.300; Cal. Gov’t Code § 820.2.; Me. Stat. tit. 14, § 8103.
  102.   Mich. Comp. Laws § 600.6431.
  103.   Ky. Rev Stat. Ann. § 44.070-.072 (establishing the Kentucky Board of Claims); N.H. Rev. Stat. § 541-B:14.

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