Amendment 11 — Officer Suits And 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.

Courts may provide relief from government wrongs under the doctrine that sovereign immunity does not prevent suits to restrain individual government officials.[1](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn1amd11 " See, e.g. Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949). It should be noted, however, that as a threshold issue in lawsuits against state employees or entities, courts must look to whether the sovereign is the real party in interest to determine whether state sovereign immunity bars the suit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Court must determine “whether the remedy sought is truly against the sovereign,” and if an “action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amendment’s protections.” See Lewis v. Clarke, 137 S. Ct. 1285, 1290–91 (2017). As a result, arms of the state, such as a state university, enjoy sovereign immunity. Id. at 6. Likewise, lawsuits brought against employees in their official capacity “may also be barred by sovereign immunity.” Id. ") The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the state.[2](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn2amd11 " C. Wright, The Law of Federal Courts § 48 (4th ed. 1983). 3. 209 U.S. 123 (1908). ") The doctrine is often associated with the decision in Ex parte Young.[3](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn3amd11 " 209 U.S. 23 (1908). ")

Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiffs brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt.

In deciding Young, the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice John Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party.[4](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn4amd11 " Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). ") He modified his position to preclude suit when an official, the governor of a state, was sued in his official capacity,[5](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn5amd11 " Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). ") but relying on Osborn and reading Madrazo narrowly, the Court later held in a series of cases that an official of a state could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the state or in response to a state statutory obligation did not make the suit one against the state.[6](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn6amd11 " Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1876); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900). ") Subsequently the Court developed another more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, which evidenced an increasing wariness toward affirmatively ordering states to relinquish state-controlled property[7](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn7amd11 " Judicial reluctance to confront government officials over government-held property did not extend in like manner in a federal context, as was evident in United States v. Lee, the first case in which the sovereign immunity of the United States was claimed and rejected. United States v. Lee, 106 U.S. 196 (1882). See Article III, “Suits Against United States Officials.” However, the Court sustained the suit against the federal officers by only a 5-4 vote, and the dissent presented the arguments that were soon to inform Eleventh Amendment cases. ") and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.[8](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn8amd11 " 134 U.S. 1 (1890). ")

Two of the leading cases concerned suits to prevent Southern states from defaulting on bonds.[9](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn9amd11 " See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423. ") In Louisiana v. Jumel,[10](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn10amd11 " 107 U.S. 711 (1882). ") a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the state.[11](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn11amd11 " “The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done.” 107 U.S. at 721. See also Christian v. Atlantic & N.C. R.R., 133 U.S. 233 (1890). ") Then, In re Ayers[12](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn12amd11 " 123 U.S. 443 (1887). ") purported to supply a rationale for cases on the issuance of mandamus or injunctive relief against state officers that would have severely curtailed federal judicial power. Suit against a state officer was not barred when his action, aside from any official authority claimed as its justification, was a wrong simply as an individual act, such as a trespass, but if the act of the officer did not constitute an individual wrong and was something that only a state, through its officers, could do, the suit was in actuality a suit against the state and was barred.[13](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn13amd11 " 123 U.S. at 500–01, 502. ") That is, the unconstitutional nature of the state statute under which the officer acted did not itself constitute a private cause of action. For that, one must be able to point to an independent violation of a common law right.[14](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn14amd11 " Ayers sought to enjoin state officials from bringing suit under an allegedly unconstitutional statute purporting to overturn a contract between the state and the bondholders to receive the bond coupons for tax payments. The Court asserted that the state’s contracts impliedly contained the state’s immunity from suit, so that express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, because any violation of the assumed contract was an act of the state, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505–06. The rationale had been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769, 783 (1883). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900). ")

Although Ayers was in all relevant points on all fours with Young,[15](https://www.law.cornell.edu/constitution-conan/amendment-11/officer-suits-and-state-sovereign-immunity#fn15amd11 " Ayers “would seem to be decisive of the Young litigation.” C. Write, The Law of Federal Courts § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167 (1908). Similarly, in a later case, the Court continued to distinguish Ayers but on grounds that did not in fact distinguish it from the case before the Court, in which it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, <a href="/supremecourt/text/342/299" aria-label="342 U.S. 29