State Employees under State Sovereign Immunity: Are Better Days Ahead?
Galloway, Chester S., Labor Law Journal
In 1996, the United States Supreme Court's opinion in Seminole Indian Tribe of Florida v. Florida1 ushered in a "new"2 era in federalism3 in which states in violation of federal law were largely freed from the threat of civil litigation by individuals. This freedom is founded on the Court's fundamental misinterpretation of the Eleventh Amendment to the Constitution, which reads: "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." Passed in the wake of the infamous Chisholm v. Georgia4 decision, the Eleventh Amendment was intended to divest federal courts of jurisdiction over diversity cases in which the defendant was a state of the union.5 The Amendment does not address jurisdiction between a state and its own citizens. Moreover, since the Amendment was passed in response to the Chisholm case-an assumpsit (contract) action-there was never any intent that it apply to matters of federal law. Over the years, however, the Court has expanded the scope of the Eleventh Amendment until, under current law, a state may not be sued by an individual for money damages even for willful violations of many federal laws.6 The Court has supported this immunity despite the clear language of the Supremacy Clause and in the face of specific Congressional intent to abrogate such immunity. In recent years, this immunity has weakened the rights of individuals vis-a-vis the states in such diverse areas as employment, patent and trademark, bankruptcy, environmental and even civil rights laws. However, recent decisions may indicate that the Court's expansion of the Eleventh Amendment has reached its outer limits.
MODERN 11TH AMENDMENT CASES
Modern Eleventh Amendment jurisprudence has its origins in Seminole Indian Tribe v. Florida, in which the Supreme Court ruled that the Indian Commerce Clause was not a sufficient grant of authority to permit Congress to abrogate state sovereign immunity. The Indian Gaming and Regulatory Act7 was passed in 1988 to, among other things, "provide a statutory basis for the operation of gaming facilities by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments...."8 The Act required states to negotiate in good faith with Indian tribes concerning the establishment of gaming facilities within the state. In the absence of good faith conduct by the state, the federal courts were authorized to direct states to reach an accord within 60 days. If an agreement was not reached within that 60-day period, the matter was submitted to a form of mediation, with ultimate authority to resolve the impasse resting with the secretary of the Interior.9 The Seminole Indian Tribe of Florida sued the state of Florida to compel good faith negotiations, and the state objected to jurisdiction on Eleventh Amendment grounds. After a lengthy discussion of the history of the Eleventh Amendment, the Court addressed the issue of whether Congress had the authority of abrogate state sovereign immunity under the Indian Commerce Clause. The Court concluded it did not.
In determining if a Congressional attempt to abrogate state sovereign immunity is effective, the Court conducts a two-part analysis. First, the Court determines if Congress manifests a clear intent to abrogate immunity. If the answer to this question is negative, the Court goes no further and immunity remains intact. If the answer is yes, as it usually is in modern Eleventh Amendment cases, the Court asks the more vexing question: Is the attempted abrogation pursuant to a valid (constitutional) exercise of Congressional authority? It is this second question that has occupied the vast majority of the Court's attention.
Seminole Indian Tribe established a new standard in constitutional federalism. Seven years before Seminole Indian Tribe, the Court had ruled that Article I, particularly the Interstate Commerce Clause, was sufficient authority to permit Congress to compel states to appear in federal court. …