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Academic highlight: Baude and Sachs on state sovereign immunity

In a recent essay, William Baude attempts to articulate a unifying theory for the Court’s sovereign-immunity jurisprudence, building on a theory first proposed by Stephen Sachs.  But as Baude admits, this intellectually elegant rationale will fall apart if the Court overrules Nevada v. Hall – holding that states have no sovereign immunity from suit in the courts of their sister states – as it appears poised to do this Term in Franchise Tax Board of California v. Hyatt.

Many law professors (and lawyers) reject the very concept of state-sovereign immunity.  Why should states be immune from suit for violating federal law? After all, the Supremacy Clause makes clear that states are not free to disobey federal law, and Article III gives the federal courts authority to hear “all cases” arising under federal law, and so it strains the logic of the constitutional structure to give states immunity from that law. Moreover, nothing in the text of the Constitution says otherwise, least of all the Eleventh Amendment, which does not address state immunity from suit for violating federal law. Nonetheless, in Hans v. Louisiana, Seminole Tribe v. Florida, and Alden v. Maine, the Court held that states cannot be sued in either their own courts or in federal court for violating federal law. How can these decisions be squared with the Constitution’s text and structure?

Baude begins his essay by deftly running through the various theories that academics have put forward to defend (or attack) the doctrine. Some contend that the states ceded their immunity upon ratifying the Constitution, and thus the Court’s sovereign-immunity jurisprudence is simply wrong. Others believe that sovereign immunity is a common-law rule that can be abrogated by Congress – a rationale that explained Hans (a case brought directly under the Constitution), but is at odds with Seminole Tribe and Alden (cases seeking to enforce federal statutes against the states). Another group of legal scholars argue that despite the lack of any clear reference to sovereign immunity in the Constitution’s text, it is implicitly preserved by that document – though that position is hard to reconcile with the Court’s decision in Fitzpatrick v. Bitzer that Congress can abrogate state sovereign immunity when legislating pursuant to Section 5 of the Fourteenth Amendment, and is also in tension with Central Virginia Community College v. Katz, in which the Court rejected a state’s claim to immunity from a lawsuit brought under federal bankruptcy laws.

Baude then champions the one theory that he believes explains it all. Baude endorses and builds upon Sachs’s suggestion that sovereign immunity is best understood as a “constitutional backdrop” rule – that is, a mere common-law rule pre-existing the Constitution, but one that the Constitution did not empower any branch of government to change. Thus, even though state sovereign immunity is not a constitutional doctrine, Congress lacks any authority under Article I of the Constitution to abrogate it.  Baude then argues that Section 5 of the Fourteenth Amendment did give Congress the power to abrogate state sovereign immunity when enforcing that amendment’s commands against the states, which explains Fitzpatrick v. Bitzer.  And he further explains that when states ratified the Constitution, they implicitly agreed not to assert sovereign immunity to laws enacted pursuant to Congress’s special authority over bankruptcy – and thus Katz was not about Congress’s power to abrogate, but rather turned on the states’ lack of a common-law sovereign immunity in such cases.

Finally, Baude explains that the constitutional backdrop theory is the only one that makes sense of Nevada v. Hall‘s holding that states can be sued in the courts of sister states – a decision generally viewed as anomalous by those who defend state sovereign immunity.  Because state courts and legislatures are not limited to the enumerated powers in the Constitution, as the federal government is, he argues that states can abrogate each other’s immunity even when Congress and the federal courts are powerless to do so. Happily, the constitutional-backdrop theory saves sovereign-immunity doctrine from incoherence.

But it’s too soon to celebrate. Based on the oral argument in Franchise Tax Board, it appears likely that the Court will overturn Nevada v. Hall and hold that sovereign immunity bars states from being sued in the courts of their sister states.  As Baude explains, this result cannot be squared with the constitutional-backdrop theory, and thus his carefully constructed edifice may fall depending on how the Court rules.   In short, Baude makes the counterintuitive argument that sovereign-immunity jurisprudence makes perfect sense, if only the Court doesn’t change a thing.

Recommended Citation: Amanda Frost, Academic highlight: Baude and Sachs on state sovereign immunity, SCOTUSblog (Jan. 28, 2016, 12:41 PM),