CRS Annotated Constitution

Eleventh Amendment -- Table of Contents

ELEVENTH AMENDMENT

SUITS AGAINST STATES

ELEVENTH AMENDMENT

SUITS AGAINST STATES

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.

STATE IMMUNITY

Purpose and Early Interpretation

Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent. At the same time, it is a vital element of federal jurisdiction that “go[es] to the very heart of [the] federal system and affect[s] the allocation of power between the United States and the several states.”1 Because of the centrality of the Amendment at the intersection of federal judicial power and the accountability of the States and their officers to federal constitutional standards, it has occasioned considerable dispute within and without the Court.2

The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 17933 provoked such angry reaction in Georgia and such anxieties in other States that at the first meeting of Congress following the decision the Eleventh Amendment was proposed by an overwhelming vote of both Houses and ratified with, what was for that day, “vehement[p.1522]speed.”4 Chisholm had been brought under that part of the jurisdictional provision of Article III that authorized cognizance of “controversies . . . between a State and Citizens of another State.” At the time of the ratification debates, opponents of the proposed Constitution had objected to the subjection of a State to suits in federal courts and had been met with conflicting responses--- on the one hand, an admission that the accusation was true and that it was entirely proper so to provide, and, on the other hand, that the accusation was false and the clause applied only when a State was the party plaintiff.5 So matters stood when Congress, in enacting the Judiciary Act of 1789, without recorded controversy gave the Supreme Court original jurisdiction of suits between States and citizens of other States.6 Chisholm v. Georgia was brought under this jurisdictional provision to recover under a contract for supplies executed with the State during the Revolution. Four of the five Justices agreed that a State could be sued under this Article III jurisdictional provision and that under section 13 the Supreme Court properly had original jurisdiction.7

The Amendment proposed by Congress and ratified by the States was directed specifically toward overturning the result in Chisholm and preventing suits against States by citizens of other States or by citizens or subjects of foreign jurisdictions. It did not, as other possible versions of the Amendment would have done, altogether bar suits against States in the federal courts.8 That is, it[p.1523]barred suits against States based on the status of the party plaintiff and did not address the instance of suits based on the nature of the subject matter.9 The early decisions seemed to reflect this understanding of the Amendment, although the point was not necessary to the decisions and thus the language is dictum.10 In Cohens v. Virginia,11 Chief Justice Marshall ruled for the Court that the prosecution of a writ of error to review a judgment of a state court alleged to be in violation of the Constitution or laws of the United States did not commence or prosecute a suit against the State but was simply a continuation of one commenced by the State, and thus could be brought under Sec. 25 of the Judiciary Act of 1789.12 But in the course of the opinion, the Chief Justice attributed adoption of the Eleventh Amendment not to objections to subjecting States to suits per se but to well–founded concerns about creditors being able to maintain suits in federal courts for payment,13 and stated his view that the Eleventh Amendment did not[p.1524]bar suits against the States under federal question jurisdiction14 and did not in any case reach suits against a State by its own citizens.15

In Osborn v. Bank of the United States,16 the Court, again through Chief Justice Marshall, held that the Bank of the United States17 could sue the Treasurer of Ohio, over Eleventh Amendment objections, because the plaintiff sought relief against a state officer rather than against the State itself. This ruling embodied two principles, one of which has survived and one of which the Marshall Court itself soon abandoned. The latter holding was that a suit is not one against a State unless the State is a named party of record.18 The former holding, the primary rationale through which the strictures of the Amendment are escaped, is that a state official possesses no official capacity when acting illegally and thus[p.1525]can derive no protection from an unconstitutional statute of a State.19

Expansion of the Immunity of the States.—Until the period following the Civil War, Chief Justice Marshall’s understanding of the Amendment generally prevailed. But in the aftermath of that conflict, Congress for the first time effectively gave the federal courts general federal question jurisdiction,20 and a large number of States in the South defaulted upon their revenue bonds in violation of the Contracts Clause of the Constitution.21 As bondholders sought relief in federal courts, the Supreme Court gradually worked itself into the position of holding that the Eleventh Amendment, or more properly speaking the principles “of which the Amendment is but an exemplification,”22 is a bar not only of suits against a State by citizens of other States, but also of suits brought by citizens of that State itself.23 Expansion as a formal holding occurred in Hans v. Louisiana,24 a suit against the State by a resident of that State brought in federal court under federal question jurisdiction, alleging a violation of the Contracts Clause in the State’s repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only the entertaining of a suit against a State by citizens of another State, or citizens or subjects of a foreign state, the Court nonetheless thought the literal language was an insufficient basis for decision. Rather, wrote Justice Bradley for the Court, the Eleventh Amendment was a result of the “shock of surprise throughout the country” at the Chisholm decision and reflected the determination that that decision was wrong and that federal jurisdiction did not extend to making defendants of unwilling States.25 The amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. The views of the opponents of subjecting States to suit “were most sensible and just” and those views[p.1526]“apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of.”26 “The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. . . . The suability of a State without its consent was a thing unknown to the law.”27 Thus, while the literal terms of the Amendment did not so provide, “the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing,”28 led the Court unanimously to hold that States could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States.

Then, in Ex parte New York (No. 1),29 the Court held that, absent consent to suit, a State was immune to suit in admiralty, the Eleventh Amendment’s reference to “any suit in law or equity” notwithstanding. “That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification. . . . It is true the Amendment speaks only of suits in law or equity; but this is because . . . the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia . . . from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case.”30 Just as Hans v. Louisiana had demonstrated the “impropriety of construing the Amendment” so as to permit federal question suits against a State, so “it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its citizens or not.”31

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And in extending protection against suits brought by foreign governments, the Court made clear the immunity flowed not from the Eleventh Amendment but from concepts of state sovereign immunity generally. “Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the . . . postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been ‘a surrender of this immunity in the plan of the convention.”’32

The Nature of the States’ Immunity

A great deal of the difficulty in interpreting and applying the Eleventh Amendment stems from the fact that the Court has not been clear, or at least has not been consistent, with respect to what the Amendment really does and how it relates to the other parts of the Constitution. One view of the Amendment, set out above in the discussion of Hans v. Louisiana, Ex parte New York, and Principality of Monaco, is that Chisholm was erroneously decided and that the Amendment’s effect, its express language notwithstanding, was to restore the “original understanding” that Article III’s grants of federal court jurisdiction did not extend to suits against the States. That view finds present day expression.33 It explains the decision in Edelman v. Jordan,34 in which the Court held that a State could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. “[I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so[p.1528]that it need not be raised in the trial court.”35 But that the bar is not wholly jurisdictional seems established as well.36

Moreover, if under Article III there is no jurisdiction of suits against States, the settled principle that States may consent to suit37 becomes conceptually difficult, inasmuch as it is not possible to confer jurisdiction where it is lacking through the consent of the parties.38 And there is jurisdiction under Article III of some suits against States, such as those brought by the United States or by other States.39 And, furthermore, Congress is able in at least some instances to legislate away state immunity,40 although it may not enlarge Article III jurisdiction.41 The Court has recently declared that “the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art. III,” but almost in the same breath has acknowledged that “[a] sovereign’s immunity may be waived.”42

Another explanation of the Eleventh Amendment is that it recognizes the doctrine of sovereign immunity, which was clearly established at the time: a state was not subject to suit without its consent.43

The Court in dealing with questions of governmental immunity from suit has traditionally treated interchangeably precedents dealing with state immunity and those dealing with fed[p.1529]eral governmental immunity.44 Viewing the Amendment and its radiations into Article III in this way provides a consistent explanation of the consent to suit as a waiver.45 The limited effect of the doctrine in this context in federal court arises from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own courts or the courts of another sovereign. But upon entering the Union the States surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but which is more than their coequal.46

Thus, outside the area of federal court jurisdiction, there is the case of Nevada v. Hall,47 which perfectly illustrates the difficulty. The case arose when a California resident sued a Nevada state agency in a California court because one of the agency’s employees negligently injured him in an automobile accident in California. While recognizing that the rule during the framing of the Constitution was that a State could not be sued without its consent in the courts of another sovereign, the Court discerned no evidence in the federal constitutional structure, in the specific language, or in the intention of the Framers that would impose a general, federal constitutional constraint upon the action of a State in authorizing suit in its own courts against another State. The Court did imply that in some cases a “substantial threat to our constitutional system of cooperative federalism” might arise and occasion a different result, but this was not such a case.48

Within the area of federal court jurisdiction, the issue becomes the extent to which the States upon entering the Union gave up their immunity to suit in federal court. Chisholm held, and the Eleventh Amendment reversed the holding, that the States had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment in effect codified an understanding of broader immunity to suits based on federal causes of[p.1530]action.49 Other cases have held that the States did give up their immunity to suits by the United States or by other States and that subjection to suit continues.50 These understandings continue and the major question unresolved is the extent to which Congress under its granted powers may remove state immunity to suit in federal court.51

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government.52 In this respect, the federal courts may not act without congressional guidance in subjecting States to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially–created doctrines requiring it to be explicit when it legislates against state immunity.53

Considerable ideological agitation within a closely divided Court has now resulted in parallel rulings that continue the inconsistencies, or, perhaps, the incoherence, of Eleventh Amendment jurisprudence. Thus, it is established, though somewhat tentatively, that Congress may abrogate state immunity under its Article I powers.54 At the same time a narrow majority subscribes to the Hans view of the meaning of the Amendment, that it is a constitutional bar to federal jurisdiction, across the board, without reference to its specific language.

In the 1980s four Justices, led by Justice Brennan, argued that Hans was incorrectly decided, that the Amendment was intended only to deny jurisdiction against the States in diversity cases, and that Hans and its progeny should be overruled.55 But the remain[p.1531]ing five Justices adhered to Hans and in fact stiffened it with a rule of construction quite severe in its effect.56

Suits Against States

Aside from suits against States by the United States and by other States, there are permissible suits by individuals against States upon federal constitutional and statutory grounds and indeed upon grounds expressly covered by the Eleventh Amendment in somewhat fewer circumstances.

Consent to Suit and Waiver.—The immunity of a State from suit is a privilege which it may waive at its pleasure. It may do so by a law specifically consenting to suit in the federal courts.57 But the conclusion that there has been consent or a waiver is not lightly inferred; the Court strictly construes statutes alleged to consent to suit. Thus, a State may waive its immunity in its own courts without consenting to suit in federal court,58 and a general authorization “to sue and be sued” is ordinarily insufficient to constitute consent.59 “The Court will give effect to a State’s waiver of Eleventh Amendment immunity ‘only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.’ . . . A State does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts . . . and ‘[t]hus, in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s inten[p.1532]tion to subject itself to suit in federal court.”’60 In this case, an expansive consent “to suits, actions, or proceedings of any form or nature at law, in equity or otherwise . . .” was deemed too “ambiguous and general” to waive immunity in federal court, since it might be interpreted to “reflect only a State’s consent to suit in its own courts. But when combined with language specifying that consent was conditioned on venue being laid “within a county or judicial district, established by one of said States or by the United States, and situated wholly or partially within the Port of New York District,” waiver was effective.61 While the Court in a few cases has found a waiver by implication, the current vitality of these cases is questionable. Thus, in Parden v. Terminal Railway,62 the Court ruled that employees of a state–owned railroad could sue the State for damages under the Federal Employers’ Liability Act. One of the two primary grounds for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, that had been enacted some 20 years previously, the State had effectively accepted the imposition of the Act and consented to suit.63 Distinguishing Parden as involving a proprietary activity, the Court subsequently refused to find any implied consent to suit by States participating in federal spending programs; participation was insufficient, and only when waiver has been “stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction,” will it be found.64 This aspect of Parden has now been overruled, a plurality of the Court emphasizing that congressional abrogation of immunity must be express and unmistakable.65

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Similarly, the State may waive its immunity by initiating or participating in litigation. In Clark v. Barnard,66 the State had filed a claim for disputed money deposited in a federal court, and the Court held that the State could not thereafter complain when the court awarded the money to another claimant. However, the Court is loath to find a waiver simply because of the decision of an official or an attorney representing the State, because of the question of the ability of the individual to act under state law to make a valid waiver, with the result that the State may at any point in litigation raise a claim of immunity.67

With respect to governmental entities that derive their authority from the State, but are not the State, the Court closely examines state law to determine what the nature of the entity is, whether it is an arm of the State or whether it is to be treated like a municipal corporation or other political subdivision. An arm of the State has immunity: “agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.”68 Municipal corporations, though they partake under state law of the State’s immunity, do not have immunity in federal court and the States may not confer it.69 Entities created through interstate compacts (subject to congressional approval) generally also are subject to suit.70

Congressional Withdrawal of Immunity.—The Constitution delegates to Congress power to legislate to affect the States in some permissible ways. At least in some instances when Congress does so, it may subject the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state powers and which expressly provide for[p.1534]congressional implementing legislation.71 Thus, “the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.”72 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to Congress in the body of the Constitution might not contain a similar power to authorize suits against the States.73 The power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’ judgment will promote compliance.74 The principal judicial brake on this power to abrogate state immunity has been application of a clear statement rule requiring that congressional intent to subject States to suit must be clearly expressed.75

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In the 1989 case of Pennsylvania v. Union Gas Co.,76 the Court—temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers may abrogate the Eleventh Amendment immunity of the states, so long as it does so with sufficient clarity. Twenty five years earlier the Court had stated that same principle,77 but only as an alternative holding, and a later case had set forth a more restrictive rule.78 The premises of Union Gas were that by consenting to ratification of the Constitution, with its Commerce Clause and other clauses empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the Eleventh Amendment was a restraint upon the courts and not similarly upon Congress, and that the exercises of Congress’ powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the states to enforce congressional enactments. The dissenters denied each of these strands of the argument, and, while recogninizing the Fourteenth Amendment abrogation power, would have held that none existed under Article I. The narrowness of the majority, the conflicted views of one of the Justices in the majority, and now changed membership of the Court make uncertain the continuing vitality of the decision.

At the same time as these developments, however, a different majority secured a victory in circumscribing the manner in which Congress could express its decision to abrogate state immunity. Henceforth, and even with respect to statutes that were enacted prior to promulgation of the judicial rule of construction, “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute” itself.79

No legislative history[p.1536]will suffice at all.80 Indeed, a plurality is of the apparent view that only if Congress refers specifically to state sovereign immunity and the Eleventh Amendment will its language be unmistakably clear.81 Thus, general language subjecting to suit in federal court “any recipient of Federal assistance” under the Rehabilitation Act was deemed insufficient to satisfy this test, not because of any question about whether States are “recipients” within the meaning of the provision but because “given their constitutional role, the States are not like any other class of recipients of federal aid.”82 The Court also construes adversely language Congress chose to reach the issue of state immunity while refusing to look at the legislative history which elaborates that language.83 The result is that Congress has begun to utilize the “magic words” the Court appears to insist on.84

It should be noted that, even if the Court reverses itself and holds that Congress lacks power to abrogate state immunity in federal courts under its commerce and other Article I powers, Congress is not barred by the Eleventh Amendment, nor apparently by any other constitutional provision, from providing authority for suits in state courts to implement federal statutory rights, thus doing away for those purposes with common law sovereign immunity of the states.85

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Although acknowledging that the Eleventh Amendment was not an issue because the Sec. 1983 suit had been pursued in state court, nonetheless the Court applied its strict rule of construction, requiring “unmistakable clarity” by Congress in order to subject States to suit, in holding that States and state officials sued in their official capacity could not be made defendants in Sec. 1983 actions in state courts.86 While the Court is willing to recognize exceptions to the clear statement rule when the issue involves subjection of states to suit in state courts, the Court will normally opt for “symmetry” that treats the states’ liability or immunity the same in both state and federal courts.87

Suits Against State Officials

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.88 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.89 The doctrine preceded but is most noteworthily associated with the decision in Ex parte Young,90 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[p.1538]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.91 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 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,92 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.93 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.94 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 rejected95 and the Hans v. Louisiana decision reading broadly the effect of the adoption of the Eleventh Amendment.96

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The two leading cases, as were many cases of this period, were suits attempting to prevent Southern States from defaulting on bonds.97 In Louisiana v. Jumel,98 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.99 Then, In re Ayers100 purported to supply a rationale for the cases permitting the issuance of mandamus or injuctive 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.101 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.102

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Although Ayers was in all relevant points on all fours with Young,103 the 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.”104 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.”105

The “fiction” remains a mainstay of our jurisprudence.106 It accounts for a great deal of the litigation brought by individuals to challenge the carrying out of state policies by officers. 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 enforce[p.1541]ment and thus interpretation in the state courts.107 Similarly, suits to restrain state officials from taking certain actions in contravention of federal statutes108 or to compel the undertaking of affirmative obligations imposed by the Constitution or federal laws109 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 authority110 or that they are not doing something required by state law111 are not precluded by the Eleventh Amendment or its emanations of sovereign immunity, provided only that there are grounds to obtain federal jurisdiction.112 However, in Pennhurst State School & Hosp. v. Halderman,113 the Court, five–to– four, held[p.1542]that Young did not permit suits in federal courts against state officers alleging violations of state law. In the Court’s view, Young’s rationale was the necessity to promote the supremacy of federal law, a basis that disappears if the violation alleged is of state law.

The Court still adheres to the doctrine, first pronounced in Madrazo,114 that some suits against officers are “really” against the State115 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.116 Suits against state officials to recover taxes have 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,117 it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.118 Beginning, however, with Great Northern Life Ins. Co. v. Read,119 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.120

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In Edelman v. Jordan,121 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.”122 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.123 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.”124

That Edelman in many instances will be a formal restriction rather than an actual one is illustrated by Milliken v. Bradley,125 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.”126 Although the payments were a result of past wrongs, of past constitutional violations, the Court did[p.1544]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.127 The Court also applied Edelman in Papasan v. Allain,128 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.

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 has resorted to the Eleventh Amendment increasingly, as one means of reducing federal–state judicial conflict.129 One may, therefore, expect this to be a continuingly contentious area.

Tort Actions Against State Officials.—In Tindal v. Wesley,130 the Court adopted the rule of United States v. Lee,131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.132 The reach of the rule is evident in Scheuer v. Rhodes,133 in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the offi[p.1545]cials. There was no “executive immunity” from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.134

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Eleventh Amendment -- Table of Contents