Academic journal article Public Personnel Management

End of an Era: The 11th Amendment and Public Personnel Administration

Academic journal article Public Personnel Management

End of an Era: The 11th Amendment and Public Personnel Administration

Article excerpt

The 11th Amendment 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."

The amendment came about as a response to the 1793 decision in Chisolm v. Georgia, (1) the first case in which the Supreme Court was asked to address the issue of sovereign immunity. The Court held that nothing in the language of the Constitution prevented it from assuming jurisdiction over the State of Georgia when that state was a defendant in an action by a citizen of another state. The response to Chisolm was swift. Congress immediately proposed a constitutional amendment to nullify the Court's decision, and that proposal became the 11th Amendment.

The amendment is a constitutional recognition that, although individual states are members of a federal union, those states retain the characteristics of sovereign entities. As such, the notion of immunity, which is a fundamental characteristic of sovereignty, would apply. Under this doctrine of sovereign immunity, a state is amenable to suit only if it has consented to be sued. The 11th Amendment has been construed as depriving federal courts of jurisdiction over suits against a state when those suits are brought by parties who are not citizens of that state. Thus, a state may be sued only if the law of that state provides a basis for suit.

The 11th Amendment has long been interpreted beyond its literal text to prohibit not only suits in federal court against states by citizens of other states but also suits in federal court against states by their own citizens. (2) However, the 11th Amendment never was applied to actions brought against states in state court for violations of federal law. In fact, the language of several cases suggested that the 11th Amendment did not apply to those actions. (3)

The Court set forth a new view of the contours of the 11th Amendment in Semihole Tribe of Florida v. Florida. (4) This case arose under the Indian Gaming Regulatory Act, (5) which required states to negotiate with Indian tribes in order to enter into tribal-state compacts governing the conduct of certain gambling activities on Indian reservations. The act also gave tribes the right to sue states in federal court to compel good faith negotiations, which the plaintiff Indian tribe did in this case. The Court dismissed the tribe's claims against the Governor of Florida, reasoning that the act's comprehensive remedial scheme did not provide a right of action against the Governor, so therefore Congress must not have intended for one to exist.

Justice Rehnquist, writing for a five-member majority, noted that although the text of the 11th Amendment would appear to restrict only the Article III diversity jurisdiction of federal courts, "we have understood the 11th Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." (6) That presupposition, first observed over a century ago in Hans v. Louisiana, has two parts: first, that each state is a sovereign entity in our federal system; and second, that "'[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'" (7) For over a century the nations courts have reaffirmed that federal jurisdiction over suits against unconsenting states "was not contemplated by the Constitution when establishing the judicial power of the United States," (8) Justice Rehnquist stated.

The Seminole Tribe plaintiffs argued that Congress abrogated the states' immunity from suit through the act. But the Court majority stated that for it to determine whether Congress abrogated the states' sovereign immunity, two questions needed to be addressed: first, did Congress unequivocally express its intent to abrogate the immunity, and second, did Congress act pursuant to a valid exercise of power under Section 5 of the 14th amendment. …

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