Overcoming Immunity: The Case of Federal Regulation of Intellectual Property
Meltzer, Daniel J., Stanford Law Review
The Supreme Court's decisions in Seminole Tribe v. Florida and Alden v. Maine have recognized a broad state sovereign immunity that Congress lacks power simply to override. In practice, the principal result of these decisions is to disempower Congress, when legislating under Article I of the Constitution, from subjecting an unconsenting state to damages liability in suits brought by private parties.
This Article examines the importance of the constitutional foreclosure of that remedy, and the options open to Congress should it wish to compensate for the unavailability of that remedy by providing other means to deter and redress violations by states of federal intellectual property rights. The analysis focuses on the federal intellectual property statutes because the Court has already declared two of these statutes to be unconstitutional incursions upon state sovereign immunity, and because, in response to those decisions, the executive and legislative branches have begun to explore legislative alternatives. Most of this article's analysis is equally applicable, however, to other statutory schemes that Congress has enacted, or might enact, under its Article I powers.
Four principal strategies are examined: (1) creation of a narrow cause of action for those violations by states that can also be viewed as deprivations of property without due process; (2) reliance upon suits against responsible state officials for damages to be paid by them personally; (3) authorization of the United States to sue the states for damages, coupled with a mechanism for enlisting private initiative on behalf of the United States; and (4) conditioning the conferral to the states of federal benefits upon the states' waiver of immunity from suit. In general, each of these four approaches raises an intersecting set of practical and legal difficulties; none provides a surefire and easy alternative to the remedy precluded by the Court's decisions. In that respect, the analysis suggests that the Court's state sovereign immunity doctrine, although viewed by some as being of secondary importance (because it does not preclude .federal regulation of the states altogether but merely restricts the available remedies), is in fact a matter of considerable constitutional and practical importance.
There are many angles of vision on the Supreme Court's recent decisions concerning state sovereign immunity and federalism more generally. In two previous articles,(1) I have set forth my views--largely critical ones--of the Court's decisions in Seminole Tribe v. Florida(2) Alden v. Maine,(3) and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank.(4) I will not repeat those arguments here, but rather will start from a point I have previously made.
That starting point addresses the question of how important these decisions are in practice. Dean Sullivan noted, not long after Alden and Florida Prepaid were handed down, that they "were not about whether Congress may regulate the states in these areas but rather how it may enforce such regulation."(5) For some, including Dean Sullivan, the implication of that observation seems to be that the latter question is of greatly subordinate importance.(6) And there is no doubt that the current curious state of affairs--in which Congress may regulate states under its Article I powers, but is barred by the doctrine of sovereign immunity from important enforcement techniques--is a less serious restriction of national power than a regime--like that briefly ushered in by National League of Cities v. Usery(7)--in which Congress may not regulate states at all.
But perhaps because I teach federal courts rather than the standard constitutional law course, I am predisposed to think that a central problem of constitutional law is the "creation of a machinery of jurisdiction and remedies that can transform rights proclaimed on paper into practical protections. …