Mitigation of the wrongs possible when the State is immune from suit has been achieved under the doctrine that sovereign immunity, either of the States or of the Federal Government, does not ordinarily prevent a suit against an official to restrain him from commission of a wrong, even though the government is thereby restrained.106 The doctrine is built upon a double fiction: that for purposes of the sovereign's immunity, a suit against the 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.107 The doctrine preceded but is most noteworthily associated with the decision in Ex parte Young,108 a case truly deserving 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 an 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 impermissible, 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 in the enforcement proceedings, but if they were wrong about the statute's validity the penalties would have been devastating.109 In the modern context, the effectuation of federal constitutional rights against state action often depends upon the imposition of affirmative obligations through injunctions, and this relief would be impossible if such an injunction were in effect a suit against a State.
* In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst, arguing that unless an actual violation of federal law had been found by a court, such court would be without jurisdiction to enforce such decree. The Court, in a unanimous opinion, declined to so extend the 11th Amendment, noting, among other things, that the principles of federalism were served by giving state officials the latitude and discretion to enter into enforceable consent decrees. Id. at 442.
106 See, e.g., Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949), where the majority and dissenting opinions utilize both federal and Eleventh Amendment cases in a suit against a federal official. See also Tindal v. Wesley, 167 U.S. 204, 213 (1897), applying to the States the federal rule of United States v. Lee, 106 U.S. 196 (1882).
107 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 (4th ed. 1983).
108 209 U.S. 123 (1908).
In deciding Young, the Court was confronted with 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,110 although he was presently required to modify that decision and preclude suit when an official, the governor of a State, was sued in his official capacity.111 Relying on Osborn and reading Madrazo narrowly, the Court, seeming to treat the barrier to suit as common-law sovereign immunity, 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 does not make the suit one against the State.112 Soon, however, the Court began developing a more expansive concept of the Eleventh Amendment and sovereign immunity, beginning with the first case in which the sovereign immunity of the United States was claimed and rejected113 and the Hans v. Louisiana decision reading broadly the effect of the adoption of the Eleventh Amendment.114
109 In fact, the statute was eventually held to be constitutional. Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352 (1913).
110 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
111 Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
112 Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1875); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm'rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900).
113 United States v. Lee, 106 U.S. 196 (1882). See "Suits Against United States Officials" under Article III. The Court sustained the suit against the federal officers by only a 5-to-4 vote, the dissent presenting the arguments that were soon to inform Eleventh Amendment cases.
The two leading cases, as were many cases of this period, were suits attempting to prevent Southern States from defaulting on bonds.115 In Louisiana v. Jumel,116 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.117 Then, In re Ayers118 purported to supply a rationale for the cases permitting the issuance of mandamus or injunctive relief against state officers in a way 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.119 That is, the unconstitutional nature of the state statute under which the officer acted stripped him of the State's shield against suit, but it 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.120
114 134 U.S. 1 (1890).
115 See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889, 1968-2003 (1983); Orth, The Interpretation of the Eleventh Amendment, 1798-1908: A Case Study of Judicial Power, 1983 U. ILL. L. REV. 423.
116 107 U.S. 711 (1882).
117 "The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done." 107 U.S. at 721. See also Christian v. Atlantic & N.C. R.R., 133 U.S. 233 (1890).
118 123 U.S. 443 (1887).
119 123 U.S. at 500-01, 502.
120 Ayers was a suit by plaintiffs seeking to enjoin state officials from bringing suit under an allegedly unconstitutional statute purporting to overturn a contract between the State and the bondholders to receive the bond coupons for tax payments. The Court asserted that the State's contracts impliedly contained the State's immunity from suit, so that express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, inasmuch as any violation of the assumed contract was an act of the State, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505-06. The rationale had been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769, 783 (1882). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900).
Although Ayers was in all relevant points on all fours with Young,121 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."122 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."123
The "fiction" remains a mainstay of our jurisprudence.124 It accounts for a great deal of the litigation brought by individuals to challenge the carrying out of state policies. Thus, 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.125 Similarly, suits to restrain state officials from taking certain actions in contravention of federal statutes126 or to compel the undertaking of affirmative obligations imposed by the Constitution or federal laws127 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 authority128 or that they are not doing something required by state law129 are not precluded by the Eleventh Amendment or its emanations of sovereign immunity, provided only that there are grounds to obtain federal jurisdiction.130
121 Ayers "would seem to be decisive of the Young litigation." C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167 (1908). Similarly, in a later case, the Court continued to distinguish Ayers but on grounds that did not in fact distinguish it from the case before the Court, in which it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952).
122 Ex parte Young, 209 U.S. 123, 159-60 (1908). The opinion did not address the issue of how an officer "stripped of his official . . . character" could violate the Constitution, inasmuch as the Constitution restricts only "state action," but the double fiction has been expounded numerous times since. Thus, for example, it is well settled that an action unauthorized by state law is state action for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913). The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), though eviscerated by Home Tel. & Tel. was not expressly disavowed until United States v. Raines, 362 U.S. 17, 25-26 (1960).
123 Ex parte Young, 209 U.S. 123, 173-74 (1908). In the process of limiting application of Young, a Court majority has recently referred to "the Young fiction." Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 281 (1997).
124 E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep't of State v. Treasure Salvors, 458 U.S. 670, 685 (1982).
125 See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining state welfare officials from denying welfare benefits to otherwise qualified recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits); Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon State through order directed to governor and other officials). On injunctions against governors, see Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits under this doctrine are principles of judicial restraint, constitutional, statutory, and prudential, discussed under Article III.
126 E.g., Edelman v. Jordan, 415 U.S. 651, 664-68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).
127 E.g., Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S. 651, 664-68 (1974); Quern v. Jordan, 440 U.S. 332, 346-49 (1979).
128 E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v. O'Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1977); Louisville & Nashville R.R. v. Greene, 244 U.S. 522 (1917). Property held by state officials on behalf of the State under claimed state authority may be recovered in suits against the officials, although the court may not conclusively resolve the State's claims against it in such a suit. South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep't of State v. Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices agreeing the Eleventh Amendment applied divided 4-to-4 over the proper interpretation.
129 E.g., Rolston v. Missouri Fund Comm'rs, 120 U.S. 390 (1887); Atchison, T. & S. F. Ry. v. O'Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478, 482-85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933); Lee v. Bickell, 292 U.S. 415, 425 (1934).
130 Typically, the plaintiff would be in federal court under diversity jurisdiction, cf. Martin v. Lankford, 245 U.S. 547, 551 (1918), perhaps under admiralty jurisdiction, Florida Dep't of State v. Treasure Salvors, 458 U.S. 670 (1982), or under federal question jurisdiction. Verizon Md. Inc. v. Public Serv. Comm'n of Md., 122 S. Ct. 1753 (2002). In the last instance, federal courts are obligated first to consider whether the issues presented may be decided on state law grounds before reaching federal constitutional grounds, and thus relief may be afforded on state law grounds solely. Cf. Siler v. Louisville & Nashville R.R., 213 U.S. 175, 193 (1909); Hagans v. Lavine, 415 U.S. 528, 546-47 & n.12 (1974). In a case removed from state court, presence of a claim barred by the Eleventh Amendment does not destroy jurisdiction over non-barred claims. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381 (1998).
However, in Pennhurst State School & Hosp. v. Halderman,131 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,132 that some suits against officers are "really" against the State133 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.*
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 floundered 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.134 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,135 it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.136 Beginning, however, with Great Northern Life Ins. Co. v. Read,137 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.138
131 465 U.S. 89 (1984).
132 Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
133 E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945).
*In Frew v. Hawkins, 124 S. Ct. 899 (2004), Texas, which was under a consent decree regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst, arguing that unless an actual violation of federal law had been found by a court, such court would be without jurisdiction to enforce such decree. The Court, in a unanimous opinion, declined to so extend the 11th Amendment, noting, among other things, that the principles of federalism were served by giving state officials the latitude and discretion to enter into enforceable consent decrees. Id. at 906.
134 Worcester County Co. v. Riley, 302 U.S. 292 (1937). See also Old Colony Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester County remains viable. Cory v. White, 457 U.S. 85 (1982). The actions were under the Federal Interpleader Act, 49 Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions against officials have been allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939) (joinder of state court judge and receiver in interpleader proceeding in which State had no interest and neither judge nor receiver was enjoined by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933).
135 Smith v. Reeves, 178 U.S. 436 (1900).
136 Atchison, T. & S. F. Ry. v. O'Connor, 223 U.S. 280 (1912).
137 322 U.S. 47 (1944).
138 See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. Tax Comm'n, 327 U.S. 573 (1946). States may confine to their own courts suits to recover taxes. Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).
In Edelman v. Jordan,139 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."140 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.141 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."142
139 415 U.S. 651 (1974).
140 415 U.S. at 663.
141 415 U.S. at 667-68. Where the money at issue is not a State's, but a private party's, then the distinction between retroactive and prospective obligations is not important . In Verizon Md. Inc. v. Public Serv. Comm'n of Md., 122 S. Ct. 1753 (2002), the Court held that a challenge to a State agency decision regarding a private party's past and future contractual liabilities does not violate the Eleventh Amendment. Id. at 1760. In fact, three judges questioned whether the Eleventh Amendment is even implicated where there is a challenge to a state's determination of liability between private parties. Id. at 1762-63 (Souter, J., concurring).
142 415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming Edelman, but holding that state officials could be ordered to notify members of the class that had been denied retroactive relief in that case that they might seek back benefits by invoking state administrative procedures; the order did not direct the payment but left it to state discretion to award retroactive relief). But cf. Green v. Mansour, 474 U.S. 64 (1985). "Notice relief" permitted under Quern v. Jordan is consistent with the Eleventh Amendment only insofar as it is ancillary to valid prospective relief designed to prevent ongoing violations of federal law. Thus, where Congress has changed the AFDC law and the State is complying with the new law, an order to state officials to notify claimants that past payments may have been inadequate conflicts with the Eleventh Amendment.
That Edelman in many instances will be a formal restriction rather than an actual one is illustrated by Milliken v. Bradley,143 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."144 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.145 The Court also applied Edelman in Papasan v. Allain,146 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,147 the Court further narrowed Ex parte Young. The implications of the case are difficult to predict, due to 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."148 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."149 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."150
143 433 U.S. 267 (1977).
144 433 U.S. at 289.
145 433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690-91 (1978) (affirming order to pay attorney's fees out of state treasury as an "ancillary" order because of bad faith of State).
146 478 U.S. 265 (1986).
147 521 U.S. 261 (1997).
148 521 U.S. at 281.
149 521 U.S. at 284.
150 521 U.S. at 282.
A separate part of Justice Kennedy's opinion, joined only by Chief Justice Rehnquist, advocated more broadscale 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."151
Thus, as with the cases dealing with suits facially against the States themselves, the Court's recent 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 resorted to the Eleventh Amendment increasingly, as one means of reducing federal-state judicial conflict.152 One may, therefore, expect this to be a continuingly contentious area.
151 521 U.S. at 296.
152 See, e.g., Florida Dep't of State v. Treasure Salvors, 458 U.S. 670, 702 (1982) (dissenting opinion); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982) (dissenting opinion). And see Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279 (1973).
Last modified: June 9, 2014