The Interaction of the Congressional Enforcement Power and the 11th Amendment

Question 1

11th Amendment

Answer 1

Jurisdictional bar that prohibits the citizens from suing a state in federal court. It immunizes the state from suits for money damages or equitable relief when the state is a defendant in an action brought by a citizen of the same state or another state or a foreign country. The 11th Amendment applies only to federal forums; not state forums! And it does not protect local governments, such as cities or towns, from being sued.

Question 2

3 Ways to circumvent State Sovereign Immunity

Answer 2

1. A state may consent to suit by expressly waiving its 11th Amendment protection.
2. Bribery via the Spending Power – Congress can tell the state that if it wants federal funding, it has to consent to being sued in federal court. This method works assuming there is no coercion.
3. The most significant way around the 11th Amendment involves suit against state officers under 42 USC § 1983. Generally, a suit against a state officer functions as a suit against the state, for the state defends the action and pays any adverse judgment

Question 3

What Is Not Barred By the 11th Amendment?

Answer 3

1. Actions against local government – Local governments (counties, cities) are not immune from suit.
2. Actions by the US government or other state governments are not barred.
3. Bankruptcy proceedings

Question 4

Congressional Power to Abrogate States’ Sovereign Immunity

Answer 4

The Court has held that Section 5 of the 14th Amendment gives Congress the power to displace state immunity when it develops remedies for violations of rights protected by Article I of the amendment.

Question 5

In order to abrogate state sovereign immunity, there must be:

Answer 5

1. Constitutional violation by a state actor. Usually, this means that Congress must document a pattern of unconstitutional state discrimination. Go through equal protection analysis!
2. The remedy for the violation must be narrowly tailored: both congruent and proportional to preventing and remedying the violation.
3. We get these elements from the City of Boerne case, even though that case did not involve an 11th Amendment violation.

Question 6

Board of Trustees v. Garrett (ADA)

Answer 6

First, the Court must consider whether Congress has demonstrated an irrational pattern or practice of discrimination against disabled persons by state employers. Since the standard here is rational review, if Congress has a rational basis for finding a pattern or practice of discrimination, the statute is constitutional.

Here the legislative record of the ADA fails to show that Congress identified a pattern of irrational state discrimination in employment against the disabled.

The Court also determined that the remedy proposed by the ADA is NOT narrowly tailored, that is, it is NOT congruent or proportional to the violation.

Congruence – There is not enough evidence of irrational discrimination by the states here. Therefore, the scope of the remedy far exceeds the scope of discrimination by the states.

Proportionality– Congress took it too far – they could have just said “do not discriminate against disabled persons” but instead provided that the employer must also provide reasonable accommodations to the disabled.

Question 7

Nevada Department of Human Resources v. Hibbs (FMLA)

Answer 7

Facts: The FMLA gave eligible employees the right to take up to 12 weeks of unpaid leave annually to take care of ailing spouses, children, or parents. The FMLA created a private damages remedy against any employer, public or private, that violated this right. 11th amendment issue.

Holding: The Court upheld the abrogation of state sovereign immunity in the FMLA.

Rationale:

Is there a pattern or practice of constitutional violations by the state?

Purposeful gender based discrimination is subject to heightened scrutiny. Thus, Congress has a higher burden of justifying sufficient evidence of a pattern or practice of discrimination.

The Court here found significant evidence in the legislative record of gender-based distinctions in employee leave policies to justify legislative action.

The Court then considers whether the remedy is congruent and proportional to the violation, and concludes that it is here.