The Constitution of the United States of America: Analysis and Interpretation Part 170

[23] Ibid. 529.

[24] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ Davis, 301 U.S. 619 (1937).

[25] National Labor Relations Board _v._ Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[26] 312 U.S. 100 (1941). _See also_ United States _v._ Carolene Products Co., 304 U.S. 144, 147 (1938); Case _v._ Bowles, 327 U.S. 92, 101 (1946).

[27] 312 U.S. 100, 114, 123, 124 (1941). _See also_ Fernandez _v._ Wiener, 326 U.S. 340, 362 (1945).

[28] 251 U.S. 146 (1919).

[29] Ibid. 156.

[30] Champion _v._ Ames, 188 U.S. 321 (1903).

[31] Hoke _v._ United States, 227 U.S. 308 (1913).

[32] Brooks _v._ United States, 267 U.S. 432 (1925).

[33] Thornton _v._ United States, 271 U.S. 414 (1926).

[34] United States _v._ Ferger, 250 U.S. 199 (1919).

[35] Kentucky Whip & Collar Co. _v._ Illinois C.R. Co., 299 U.S. 334 (1937).

[36] Everhard's Breweries _v._ Day, 265 U.S. 545 (1924).

[37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments, and hence to be an unlawful invasion of the powers reserved to the States by the Tenth--Civil Rights Cases, 109 U.S. 3, 15 (1883).

[38] 327 U.S. 92, 102 (1946).

[39] United States _v._ California, 297 U.S. 175 (1936).

[40] Sanitary District of Chicago _v._ United States, 266 U.S. 405, 425, 426 (1925).

[41] Kansas _v._ Colorado, 206 U.S. 46, 87, 89 (1907).

[42] _See_ United States _v._ Appalachian Electric Power Co., 311 U.S.

377 (1940).

[43] Oklahoma _v._ Atkinson Co., 313 U.S. 508, 534 (1941).

[44] Oklahoma _v._ United States Civil Service Commission, 330 U.S. 127, 142-144 (1947).

[45] 296 U.S. 315 (1935).

[46] 193 U.S. 197 (1904).

[47] Ibid. 345, 346.

[48] New York _v._ United States, 257 U.S. 591 (1922).

[49] Northwestern Electric Co. _v._ Federal Power Commission, 321 U.S.

119 (1944). _See also_ Federal Power Commission _v._ East Ohio Gas Company, 338 U.S. 404 (1950).

[50] Helvering _v._ National Grocery Co., 304 U.S. 282 (1938).

[51] Helvering _v._ Northwest Steel Mills, 311 U.S. 46 (1940).

AMENDMENT 11

SUITS AGAINST STATES

Page Purpose and early interpretation 929 Expansion of state immunity 930 Suits against state officials: two categories 930 Mandamus proceedings 932 Early limitation on injunction proceedings 932 Injunction proceedings today: Ex parte Young 933 Tort action against state officials 934 Suits to recover taxes 935 Consent of State to be sued 935 Waiver of immunity 936

SUITS AGAINST STATES

Amendment 11

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.

Purpose and Early Interpretation

The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793, in Chisholm _v._ Georgia[1] provoked such angry reactions in Georgia and such anxieties in other States that at the first meeting of Congress after this decision what became the Eleventh Amendment was proposed by an overwhelming vote and ratified with "vehement speed."[2] The earliest decisions interpretative of the amendment were three by Chief Justice Marshall. In Cohens _v._ Virginia,[3] speaking for the Court, he held that the prosecution of a writ of error to review a judgment of a State court, alleged to be in violation of the Const.i.tution or laws of the United States, "does not commence or prosecute a suit against the State," but continues one commenced by the State. The contrary holding would have virtually repealed the 25th Section of the Judiciary Act of 1789 (_see_ p. 554), and brought something like anarchy in its wake. In Osborn _v._ Bank of the United States,[4] decided three years later, the Court laid down two rules, one of which has survived and the other of which was soon abandoned. The latter was the holding that a suit is not one against a State unless the State is a party to the record.[5] This rule the Court was forced to repudiate seven years later in Governor of Georgia _v._ Madrazo,[6] in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. It is now a well-settled rule that in determining whether a suit is prosecuted against a State "the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit."[7] The other, more successful rule was that a State official possesses no official capacity when acting illegally and hence can derive no protection from an unconst.i.tutional statute of a State.[8]

Expansion of State Immunity

Subsequent cases giving the amendment a restrictive effect are those holding that counties and munic.i.p.alities are suable in the federal courts;[9] and that government corporations of the State are not immune when suable under the law which created them.[10] Meantime other cases have expanded the prohibitions of the amendment to include suits brought against a State by its own citizens,[11] by a foreign state,[12] by a federally chartered corporation,[13] or by a State as an agent of its citizens to collect debts owed them by another State.[14] These rulings are based on the premise expressed in Hans _v._ Louisiana[15] that the amendment "actually reversed the decision" in Chisholm _v._ Georgia and, as Chief Justice Hughes indicated in Monaco _v._ Mississippi,[16] had the effect of prohibiting any suit against a State without its consent except when brought by the United States[17] or another State.

Suits Against State Officials: Two Categories

Most of the cases involving the Eleventh Amendment and those creating the greatest difficulties are suits brought against State officials.

Such suits are governed by the same rules and principles as pertain to the immunity of the United States itself from suits,[18] with the result that the rules of governmental immunity from suit generally are grounded on decisions arising under both article III and the Eleventh Amendment without distinction as to whether a suit is against the United States or a State.[19] The line is not always easy to draw, nor are the cases always strictly consistent. They do yield, however, to the formulation of certain general rules. Thus, suits brought against State officials acting either in excess of their statutory authority[20] or in pursuance of an unconst.i.tutional statute[21] are suits against the officer in his individual capacity and therefore are not prohibited by the Eleventh Amendment; and suits against an officer for the commission of a common law tort alleged to be justified by a statute or administrative order of the State belong to the same category.[22] On the other hand, suits against the officers of a State involving what is conceded to be State property or suits asking for relief which clearly call for the exercise of official authority cannot be sustained.[23]

Mandamus Proceedings

Thus mandamus proceedings which seek "affirmative official action" on the part of State officials as "the performance of an obligation which belongs to the State in its political capacity"[24] are uniformly regarded as suits against the State. This rule is well ill.u.s.trated by Louisiana ex rel. Elliott _v._ Jumel[25] where a holder of Louisiana State bonds sought to compel the State treasurer to apply a sinking fund that had been created under an earlier const.i.tution for the payment of the bonds to such purpose after a new const.i.tution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the State because: "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."[26] However, mandamus proceedings to compel a State official to perform a plain or ministerial duty which admits of no discretion are not suits against the State since the official is regarded as acting in his individual capacity in failing to act according to law.[27]