Puerto Rico's Eleventh Amendment Status Anxiety

By Chandler, Adam D. | The Yale Law Journal, June 2011 | Go to article overview

Puerto Rico's Eleventh Amendment Status Anxiety


Chandler, Adam D., The Yale Law Journal


Puerto Rico is not among the fifty united states, so the Eleventh Amendment--which gives immunity only to "States" (1)--appears not to apply. But ever since then-Judge Breyer first addressed the issue thirty years ago, the First Circuit has been consistent and clear in recognizing Puerto Rico's Eleventh Amendment sovereign immunity. As this Comment will demonstrate, that holding, which the First Circuit has repeated dozens of times, is founded on Judge Breyer's mistaken reading of prior cases on common law immunity, not on constitutional immunity, and has not since been supported by any additional analysis or reasoning. Thus, Puerto Rico's long-enjoyed Eleventh Amendment immunity is liable to evaporate if the U.S. Supreme Court takes a more skeptical approach.

The Supreme Court will soon have an opportunity to weigh in on the Eleventh Amendment question if it grants certiorari in the First Circuit case Vaqueria Tres Monjitas, Inc. v. Irizarry. (2) In their briefs in opposition to certiorari, respondents question the legitimacy of Puerto Rico's invocation of Eleventh Amendment protection; (3) petitioners reply that "the proposition that Puerto Rico is entitled to sovereign immunity is not open to serious debate." (4) The Court has shown interest in the case by referring it to the Acting Solicitor General for his views on granting certiorari. (5)

The first four Parts of this Comment show that, should the Court decide to face the Eleventh Amendment question directly, it would be a mistake for it to adopt the faulty reasoning underlying the First Circuit's case law. It does not follow, however, that Puerto Rico must be treated like the other American territories, none of which currently enjoys Eleventh Amendment protection. Part V of this Comment surveys those territories and concludes that, among them, Puerto Rico's claim to Eleventh Amendment protection is the strongest. For historical and structural reasons, recognizing Puerto Rico's claim to Eleventh Amendment immunity will not start down a slippery slope to similar claims on behalf of territories like Guam. Thus, while the First Circuit's repeated holdings on Puerto Rico and the Eleventh Amendment are no more than a house of cards, there are still justifications for a constitutional distinction between Puerto Rico and the other territories that could sustain the Eleventh Amendment status quo among the territories.

I. SOVEREIGN IMMUNITY: ELEVENTH AMENDMENT VERSUS COMMON LAW

The Eleventh Amendment provides that "[t]he 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." (6) The Supreme Court has repeatedly held that the Eleventh Amendment extends beyond its plain terms to give states immunity not only in suits by citizens of other states but also in suits by their own citizens. (7) In short, the Amendment prevents a private party from suing a state without the state's consent. (8) That protection for the states was of such central concern to the Founders that the Supreme Court's initial failure to recognize states' immunity prompted an immediate constitutional amendment. (9)

States do not rely solely on the Eleventh Amendment for their sovereign immunity, however. The Supreme Court has explained that sovereign immunity is a fundamental preconstitutional doctrine that has protected the states since their inceptions. (10) But there are substantial differences between this common law notion of sovereign immunity and constitutionally enshrined Eleventh Amendment immunity. The Court's "understanding of common-law sovereign immunity does not protect against liability under the laws of a superior governmental authority," meaning that common law immunity can be abrogated not only by a state's legislature but also by Congress. (11) In addition, while common law immunity protects a sovereign from being "sued in its own courts without its consent, . …

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