The 11th Amendment Revisited

Great Debates
1

In this decision the SCOTUS majority (5-4) trumped the right of a federal agency to administer a Congressional Act by the State’s immunity against private suits in the 11th Amendment.

Although the 11th states that an individual cannot sue another State in federal court, SCOTUS has long held that an individual cannot sue even its own state in a federal court, but must seek redress in the state due to the state’s sovereign immunity.

The majority held that the Federal Marine Commision (FMC) is in a quasi-judicial position and that an action brought by an individual to the FMC is a judicial action vis-a-vis the 11th. As such, the FMC’s mandate violated the 11th and FMC could not order the state of SC to allow the individual’s gambling boat to dock.

Justice Breyer, in a much more reasoned minority opinion, points out that a federal agency or administration is part of the executive branch of the government, not the judicial. Breyer finds it strange that the majority would allow FMC to regulate SC’s use of its ports on its own initiative, but that FMC is restrained to do so in this case because a private person brought an administrative action to the agency.

I applaud the conclusion of the majority’s opinion, but I cannot applaud its reasoning. The private party owns a boat which it wants to use just for gambling off the coast of SC. As a resident of Charleston, SC, I’m glad the court held as it did. But I agree with Breyer. Any comments?

2

I will do my part by posting the 11th Amendment, which says:

http://www.law.cornell.edu/constitution/constitution.amendmentxi.html

3

Quote by barbitu8

Let’s start out by noting that this is an incorrect restatement of the holding in the case. The case has nothing to do with the 11th Amendment.

The case is about “sovereign immunity”, the often misunderstood notion that the “king can do no wrong.” When the United States was set up as a federal organization, the legal system had to decide what power one sovereign (the federal government) had over another sovereign (the individual state) in suits utilizing federal judiciary. The conclusion reached by the federal courts was that the states enjoyed immunity from actions brought against them by their own citizens in federal courts. Thus, the existence of a federal judiciary did not expand the rights of citizens of a state to litigate against their own state.

All that the reported decision does is restate that this immunity isn’t just against legal actions brought against the state in an Article III court, but against legal actions brought against states in administrative procedings that act much the same as suits in Article III courts would. And really, despite the efforts of Justice Breyer to show that this isn’t a duck, once this proposition is accepted as law, the decision in the case was pretty inevitable.

Where the dissenters truly dissent is with the proposition as a whole. In this, they are continuing a series of dissents to decisions taken by the court over the course of the last six years, starting with the Seminole Tribe of Fla.v. Florida,517 U. S. 44 (1996) case. And the argument is old, it is rejected by the majority now as it was then, and it should be given a rest, though that hasn’t been the practice in the Supreme Court since the years of Brennan/Marshall In Dissent.

Further, let’s dispose of the main argument against the proposition in Seminole Tribe, that there is no text in the Constitution that mandates the result. “Sovereign immunity” isn’t a concept that requires a specific textual mention, any more than the Constitution had to include text making it the job of the Supreme Court to decide the constitutionality of laws passed by Congress. The concept is inherent in the makeup of a federal system with independent branches of authority and independent levels of sovereignity. The majority understands this in this instance, though they are quite prepared to forget it in many another instance.

4

DSYoungEsq – thanks for that cogent explanation. It expanded what I had understood from the N Y Times summary of Thomas’s majority opinion.

Here’s another question for you: Is this a big deal? The Times editorialized against it, which is consistent with their support for a strong federal government. Prof Glenn Reynolds (“Instapundit”) also disagreed, although he’s a kind of libertarian.

I cannot see why I should care a great deal, one way or the other. Am I not understanding the significance of this decision?

5

This is not true. The 11th was referred to by the ALJ, by the majority opinion, and by the dissent. You cannot refer to the state’s sovereign immunity without reference to the 11th.

If the FMC initiated suit against SC in district court, there could be no question of jurisdiction and of the state’s amenability to that jurisdiction. The fact that an individual initially instituted action in an administrative proceeding is the crux of the dispute.

This decision may not be important to December, but it is of vital significance to all residents of all states on the coast. This was a big issue in SC, and the city of North Charleston was thinking of allowing gambling boats. Now, it cannot. So if you live in Chicago, it makes no difference to you, but that’s a very parochial attitude.

6

I think you’re both right (barbitu8 and DSYoung), actually. The 11th is usually referred to in sovereign immunity cases and has traditionally been the source and statrting point, but case law recognizing sovereign immunity has strayed so far from the text of the amendment (starting with Hans v. Lousiana) that the Court stated in Alden v. Maine 119 S. Ct. 2240 (1999) that sovereign immunity can’t derive exclusively from the 11th amendment but is instead inherent in the Constitution istself. So the 11th (passed to overrule Chisolm v. Georgia) was intended “not to change but to resore the original constitutional design…sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Consitution itself” (Alden).

7

The 11th Amendment is referenced in this decision only because the minority has to establish that the 11th Amendment itself doesn’t provide support for the position of the majority. But, as the majority cogently point out, they aren’t resting their decision on the 11th Amendment. Therefor, the references to the amendment in the opinions fall into two categories: comparison for the purpose of drawing analogy, or trolling with red herring. Hell, even the person writing the headnotes understood that.

To address the question posited by december, the significance has to do with how you view the role of the national government in the federal scheme. While barbitu8 and others in coastal waters might have considered the outcome important, as often happens in constitutional cases it is the rationale which has more significance to most of the country.

Government philosophy in this country runs in cycles. There are macro cycles that take 50-75 years to run their course, within which there occur shorter mini-cycles of varying lengths. Currently, we appear to be struggling to see what will happen when the macro-cycle which began in the '30s with the massive centralization of power in response to the Depression runs its course. This centralized power cycle has been mirrored by the homogenization of society across America, resulting in a change from individual states having easily definable individual characters to most of our society being much the same regardless of which state you are in. National food chains, grocery stores, clothing stores, movie theaters, radio companies, you name it, pretty much coast to coast you see and hear the same things everywhere. This sort of homogenization across state boundaries is made possible in large part by the increasing reliance upon the national government in Washington, D. C. to be the setters of standards and makers of laws.

The Rooseveltian Democracy is reaching the end of its days. Its demise has been foretold for some years now by the increasing gains made by the conservatives at the national and state levels, though you’ll notice how quickly Republicans at the national level are willing to be strong federalists when it suits their needs on issues important to them. The argument in the Supreme Court, exemplified by this decision and the fight over “sovereign immunity” is over where we go after this macro-cycle ends. The conservative wing wants to see states regain some control over their territories and cultures; the liberal wing wants to preserve the concept of a strong national government able to redress wrongs perpetuated by local level governments against national interests.

One way that the national government has attempted to keep a strong check on local “abuses” in an era of shrinking governemental resources is to empower individuals to act on its behalf. Combined with the delegation of quasi-judicial functions to administrative agencies, this allows the Congress to create strong rules, empower a watchdog agency, and have those rules enforced, all without clogging the national courts with cases or spending gobs of money on enforcement officials. It is this practice that is under attack by the conservative wing of the Supreme Court. The effect of the decision is to require that the agency in question, the FMC, act themselves to correct improper behaviour by individual states, rather than letting the FMC delegate that authority to individual citizens. The gamble by conservatives is that this will eventually result in states regaining some measure of local control, as the national government finds it impossible to assert strong control over all the areas it wants to regulate.

How important is this to you? I suppose that depends on how important you view the result of this power struggle between Washington, D. C. and the states. But one measure of how important you might want to view it comes from the fact that the minority in this decision has forced the Court to consider this specific issue five times in six years, and shows no signs of letting up the pressure on the majority. Given the relatively few numbers of cases granted certiorari each year, it is pretty obvious that the minority thinks it vital to force the majority to recant its basic position set forth in Seminole Tribe.