The 11th Amendment states that:
“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.”
Before its ratification, the Court held in Chisholm v. Georgia (1793) that states could be sued in federal court. The Eleventh Amendment was ratified in response to that decision. After its ratification, the Court held in Hollingsworth v. Virginia (1798) that state sovereign immunity had been established by the 11th Amendment.
Subject to some exceptions, then, state government actors have sovereign immunity from lawsuits. But the actual text of the 11th Amendment does not say that sovereign immunity extends to cases where states are sued by their own citizens. The Court extended sovereign immunity to cover this sort of situation in Hans v. Louisiana (1890). However, the Court seems to have backtracked on this, at least a bit. Read the excerpt of Nevada Department of Human Resouces v. Hibbs (2003) on WebCampus. Notice how the Court is allowing this abrogation of the 11th Amendment’s sovereign immunity requirement based on the fact that Congress was acting under section 5 of the 14th Amendment.
But it is still clear that states are afforded considerable protection from lawsuits in federal court, even lawsuits filed by their own citizens. Read this WSJ article about the “Facebook Likes” case, Bland v. Roberts (2013). Note that, while the 4th Circuit seems to have sided with the fired employees, these employees are unlikely to be entitled to back pay if they win at trial. Also relevant, though, is the Supreme Court’s sovereign immunity decision in Virginia Office for Protection and Advocacy v. Stewart (2014). Click through some of the links at the SCOTUSblog VOPA v. Stewart page, especially this analysis by Schwinn.
Paper Topic #15: How is the issue of sovereign immunity different in this case than it is in Hibbs and/or VOPA? What would have to happen in order for the workers in Bland to collect damages? Is this kind of sovereign immunity still relevant in today’s America?
Suggested Reading: Gates, H. M. (2012). Closing The Gap: The Fourth Circuit’s Narrowing Of The Ex Parte Young Exception In Virginia V. Reinhard And The Implications For Federal Rights. Seton Hall Circuit Review, 6(2), 1.
