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05/25/2019

Ilan Wurman on Hyatt and Sovereign Immunity
Michael Ramsey

At Law & Liberty, Ilan Wurman (Arizona State): Originalism and Sovereign Immunity.  From the core of the argument:

... I agree that the Court has indeed messed up sovereign immunity doctrine. But, as I explain in my book, A Debt Against the Living: An Introduction to Originalism, the results in most of these cases are consistent with both textualism and originalism (to the extent those are different methods).

The mistake that both the Supreme Court and the opponents of its sovereign immunity cases make is to presume that the answer to this specific question must be found in the Constitution. This gets the Constitution backward. The Constitution was not adopted on a tabula rasa, but rather atop many layers of preexisting law. Sovereign immunity—the immunity of the state from a suit for money damages in court without its consent—was part of that law. As Caleb Nelson has written, sovereign immunity was part of the common law of personal jurisdiction: a court simply could not exercise power over the body of the King or the state because there was no way to force them into court or to pay money from the treasury. James Iredell in 1793 explained that this sovereign immunity was part of the law of every state of the Union prior to the adoption of the Constitution. Therefore, if nothing in the Constitution itself abrogates that immunity or gives Congress the power to abrogate it, then the states’ immunity remains intact.

On the key cases involving Congress' abrogation of sovereign immunity:

The question thus boils down to whether abrogating sovereign immunity is a sufficiently “small” power such that Congress can do it [via the necessary and proper clause] to effectuate its other enumerated powers, or whether it is a “great substantive and independent power” that must be expressly enumerated. I am not sure the answer must be that it is the latter, but certainly the way the Founding generation viewed sovereign immunity (see their reaction to Chisolm) suggests the power to abrogate it was indeed thought to be a great and substantive power that could not be left to implication. If that’s right, then Seminole Tribe and Alden v. Maine are easy cases.

Finally, on Hyatt:

This brings us finally to Hyatt, which did not involve Article III, the Eleventh Amendment, or Congress’s enumerated powers. The Supreme Court nevertheless held that the Constitution grants the states immunity even in suits in the state courts of other states. This is a mistake. Again, the Constitution does not grantsovereign immunity to anybody. Sovereign immunity was already out there—a constitutional backdrop, as William Baude has explained—that the Constitution left in place. How, then, are we to analyze a suit against one state in the courts of another?

As Professors William Baude and Stephen Sachs explained in a friend of the court brief, the answer is likely that the Constitution leaves this entirely to the states. The state in which the suit is proceeding may by comity afford immunity to a sister state; but if it doesn’t, then the defendant-state may nevertheless refuse to enforce the judgment. This would effectively lead to the result in Hyatt in the sense that a state could ultimately maintain its immunity, but it would be up for the states themselves to work that out. This approach may not answer all the relevant questions, but it is plausible and workable.

The full post is an outstanding concise explanation of why the Court's sovereign immunity cases (apart from Hyatt) are defensible as a matter of originalism and textualism, but that Hyatt isn't.  It's exactly what I think (but he says it much better).