Amendment 11 — Abrogation Of State Sovereign Immunity

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Eleventh Amendment :

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.

On May 11, 2023, the Supreme Court issued a decision in Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc., a case concerning whether the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) abrogates the sovereign immunity of “an entity within the territorial government” of Puerto Rico created by the act.[1](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn1amd11 " No. 22-96, slip op. (U.S. May 11, 2023). ") The Court held that Congress did not make “unmistakably clear” in PROMESA’s language an intent to abrogate Puerto Rico’s sovereign immunity, as required by the Court’s precedents.[2](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn2amd11 " Id. at 8 (citing Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)). ") Accordingly, any sovereign immunity to which the entity might be entitled was not abrogated by PROMESA.

The Constitution grants Congress power to regulate state action by legislation. In some instances when Congress does so, it may subject states to suit by individuals to implement the legislation. The clearest example arises from the Civil War Amendments, which directly restrict state powers and expressly authorize Congress to enforce these restrictions through appropriate legislation.[3](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn3amd11 " Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney, 437 U.S. 678 (1978); City of Rome v. United States, 446 U.S. 156 (1980). More recent cases affirming Congress’s Section 5 powers include Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); and Dellmuth v. Muth, 491 U.S. 223, 227 (1989). ") Thus, in Fitzpatrick v. Bitzer, the Court stated: “the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of § 5 of the Fourteenth Amendment .” [4](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn4amd11 " Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (under the Fourteenth Amendment, Congress may “provide for private suits against States or state officials which are constitutionally impermissible in other contexts.” ). ") The power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’s judgment will promote compliance.[5](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn5amd11 " In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that Congress could validly authorize imposition of attorneys’ fees on the state following settlement of a suit based on both constitutional and statutory grounds, even though settlement had prevented determination that there had been a constitutional violation. Maine v. Thiboutot, 448 U.S. 1 (1980), held that § 1983 suits could be premised on federal statutory as well as constitutional grounds. Other cases in which attorneys’ fees were awarded against states are Hutto v. Finney, 437 U.S. 678 (1978); and New York Gaslight Club v. Carey, 447 U.S. 54 (1980). See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding enforcement of consent decree). ") The principal judicial brake on this power to abrogate state immunity in legislation enforcing the Civil War Amendments is the rule requiring that congressional intent to subject states to suit be clearly stated.[6](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn6amd11 " Even prior to the tightening of the clear statement rule over the past several decades to require express legislative language (see note and accompanying text, infra), application of the rule curbed congressional enforcement. Fitzpatrick v. Bitzer, 427 U.S. 445 451–53 (1976); Hutto v. Finney, 437 U.S. 678, 693–98 (1978). Because of its rule of clear statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held that in enacting 42 U.S.C. § 1983, Congress had not intended to include states within the term “person” for the purpose of subjecting them to suit. The question arose after Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978), reinterpreted “person” to include municipal corporations. Cf. Alabama v. Pugh, 438 U.S. 781 (1978). The Court has reserved the question of whether the Fourteenth Amendment itself, without congressional action, modifies the Eleventh Amendment to permit suits against states, Milliken v. Bradley, 433 U.S. 267, 290 n.23 (1977), but the result in Milliken, holding that the Governor could be enjoined to pay half the cost of providing compensatory education for certain schools, which would come from the state treasury, and in Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition of damages upon the governor, which would come from the state treasury, is suggestive. But see Rabinovitch v. Nyquist, 433 U.S. 901 (1977). The Court declined in Ex parte Young, 209 U.S. 123, 150 (1908), to view the Eleventh Amendment as modified by the Fourteenth. ")

In the 1989 case of Pennsylvania v. Union Gas Co.,[7](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn7amd11 " 491 U.S. 1 (1989). The Justice William Brennan wrote the Court’s plurality opinion and was joined by the three other Justices who believed Hans was incorrectly decided. See id. at 23 (Justice Stevens concurring). Justice Byron White provided the fifth vote id. at 45, 55–56 (Justice Byron White concurring), although he believed Hans was correctly decided and ought to be maintained although he did not believe Congress had acted with sufficient clarity in the statutes before the Court to abrogate immunity. Justice Antonin Scalia thought the statutes were express enough but that Congress simply lacked the power. Id. at 29. Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Anthony Kennedy joined relevant portions of both opinions finding lack of power and lack of clarity. ") the Court—temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers (as opposed to its Fourteenth Amendment powers) may abrogate the Eleventh Amendment immunity of the states, so long as it does so with sufficient clarity. Twenty-five years earlier the Court had stated that same principle,[8](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn8amd11 " Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 283, 284, 285–86 (1973). ") but only as an alternative holding, and a later case had set forth a more restrictive rule.[9](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn9amd11 " Edelman v. Jordan, 415 U.S. 651, 672 (1974). ") The premises of Union Gas were that by consenting to ratification of the Constitution, with its Commerce Clause and other clauses empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the Eleventh Amendment was a restraint upon the courts and not similarly upon Congress, and that the exercises of Congress’s powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the states to enforce congressional enactments. The dissenters disputed each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, took the position that no such power existed under Article I.

Pennsylvania v. Union Gas lasted less than seven years before the Court overruled it in Seminole Tribe of Florida v. Florida.[10](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn10amd11 " 517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory Act authorizing an Indian tribe to sue a state in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact). ") Chief Justice William Rehnquist, writing for a 5-4 majority, concluded that Union Gas had deviated from a line of cases, tracing back to Hans v. Louisiana,[11](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn11amd11 " 134 U.S. 1 (1890). ") which viewed the Eleventh Amendment as implementing the “fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.” [12](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn12amd11 " 517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–98 (1984). ") Because “the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.” [13](https://www.law.cornell.edu/constitution-conan/amendment-11/abrogation-of-state-sovereign-immunity#fn13amd11 " 517 U.S. at 72–73. Justice David Souter’s dissent undertook a lengthy refutation of the majority’s analysis, asserting that the Eleventh Amendment is best understood, in keeping with its express language, as barring only suits based on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state sovereign immunity that the Court mistakenly recognized in Hans v. Louisiana was a common law concept that “had no constitutional status and was subject to con