The Effect of the Supreme Court\u27s Eleventh Amendment Jurisprudence on Environmental Citizen Suits: Gotcha!

The current Supreme Court has substantially expanded the scope of protection from lawsuits accorded to states by the Eleventh Amendment and narrowed the exceptions to its application. As a result, many people are finding they are unable to vindicate federal rights in any court when the defendant is a state or a state agency. The most recent example of this is the Court\u27s decision in South Carolina State Ports Authority v. Federal Maritime Commission, in which the Court extended the reach of the Eleventh Amendment to private administrative enforcement actions against states, thus forsaking completely any connection to the text of the Amendment. This trend in the Court\u27s application of the Eleventh Amendment to shield states from injured private citizens has potentially ominous implications for citizens seeking to enforce federal environmental laws against states, as Justice Breyer warned in his dissent in College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board. States are important players in the administration of many environmental laws, as recipients of delegated federal regulatory authority. States also own, operate, and construct potentially polluting facilities, such as hazardous waste landfills, hospitals, prisons, airports, roads, and reservoirs that may violate federal law. Thus, they are often targets of citizen suits. An examination of the effect of the Court\u27s sovereign immunity jurisprudence on the private enforcement of environmental laws against states, therefore, is no mere academic exercise. In an atmosphere in which states are assuming a more central place in the administration of federal environmental laws and federal oversight of state performance is lessening, any initiative that insulates states from legal challenge takes on grave significance for environmentalists. If environmental plaintiffs cannot enforce federally mandated standards and programmatic requirements against the states that run these programs, history advises that the states may under-perform. Thus, a reinvigorated Eleventh Amendment applied to citizen suits brought to enforce federal environmental laws can as effectively undercut the impact of those laws as if Congress had amended them to achieve the same result. This paper focuses upon the impact of the Court\u27s Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA) because that law\u27s cooperative federalism structure is typical of many other environmental laws and because citizens suits have historically played a critical role in its implementation. The Act\u27s citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought to bear on citizen suits the full force and effect of the Court\u27s current state sovereign immunity jurisprudence. The prevailing wisdom is that that jurisprudence will not bar CWA citizen suits against states. The author shows that she is not persuaded for the reasons set out in this paper

The Unsettled Nature of the Union

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010). In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment\u27s text made sense to the Founders because they did not envision any suits against the states arising under federal law. Thus, by clarifying that the states could not be sued under Article III\u27s diversity provisions, the Amendment\u27s framers were effectively precluding all suits against the states in federal court. In this response, the author notes that Professor Clark\u27s defense of the Eleventh Amendment\u27s text combines a narrow claim and a broad claim. the author finds Professor Clark\u27s narrow claim that the Founders understood that the federal obligations of the states would be enforceable in suits against state officials rather than the states themselves to be well supported. On the other hand, he is unconvinced by Professor Clark\u27s broader claim that the Founders understood that the federal government would lack the power to impose legal obligations on the states. He finds Professor Clark\u27s evidence for this claim to be equivocal, most of it being susceptible to a narrower reading. In his view, the Founders did not settle this particular aspect of the legislative power of the federal government

Exhuming the “Diversity Explanation” of the Eleventh Amendment

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of current doctrine, and concludes that overruling of that doctrine would be warranted

The Effect of the United States Supreme Court\u27s Eleventh Amendment Jurisprudence on Clean Water Act Citizen Suits: Muddied Waters

This Article focuses on the impact of the Court\u27s Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA), because that law\u27s cooperative federalism structure is typical of many other environmental laws, and because citizen suits have historically played a critical role in its implementation. The CWA\u27s citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought on citizen suits the full force and effect of the Court\u27s current state sovereign immunity jurisprudence. The prevailing wisdom is that the Court\u27s state sovereign immunity jurisprudence will not bar CWA citizen suits brought to enforce federal mandates against states in federal court. For the reasons set out in this Article, I am not sure I agree. The structure of the Article is straightforward. The Article briefly discusses the importance of private enforcement of the CWA, the law\u27s structure, and the specific language of section 505. It then summarizes the arguments favoring centralization of regulatory authority in the federal government and shows how arguments favored by devolutionists-those who argue for decentralization of federal regulatory authority to the states-appear to be prevailing to the detriment of strong environmental enforcement. The Article then turns to the key cases that comprise the Court\u27s current view of the Eleventh Amendment. An examination of this case law reveals the compatibility between the themes the devolutionists propound and those the Court articulates in support of its decisions. The Article applies this decentrist jurisprudence, as interpreted by the lower courts, to the CWA to see to what extent it might constrain citizen suits against states, and concludes that it might well limit them. Finally, the Article shows how various suggested ways around the Eleventh Amendment, such as finding an alternative theory for congressional abrogation or grounds for states to waive their immunity, relying on the federal sovereign to prosecute CWA violations against states, or relying on the state courts to vindicate these rights, are wanting in some respect, and thus are poor substitutes for citizen suits. Since the Court has taken upon itself to reinvent the Eleventh Amendment, only the Court can restore the proper balance between the federal government and the states. One can only hope that it will choose to do this before it succeeds in undermining the effectiveness of some very important federal environmental laws

The People or the State?: Chisholm v. Georgia and Popular Sovereignty

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court\u27s individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications

Sovereign Immunity, Due Process, and the \u3ci\u3eAlden\u3c/i\u3e Trilogy

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states\u27 violation of federal law. The Court thus rejected the forum allocation interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by Congress acting through Article I. On the same day, however, the Court appeared to resurrect the forum allocation interpretation of the Eleventh Amendment with respect to a subset of federal laws: those that establish rights that constitute property or liberty within the meaning of the Fourteenth Amendment\u27s Due Process clause. The Court in Florida Prepaid v. College Savings Bank affirmed that patents are property and that a state violates the Due Process clause when it deprives persons of such property without affording them an adequate compensatory remedy. The extent to which the Due Process principle articulated in Florida Prepaid undoes the sovereign immunity principle articulated in Alden depends on the breadth of the concepts of property and liberty. Although the third case in the Alden trilogy, College Savings Bank v. Florida Prepaid, makes it clear that not all federal rights are property for purposes of the Due Process clause, other cases, which the Court did not reject or even discuss, stress that the concepts of liberty and property are broad indeed. In particular, the new property cases define property in such a way as to include the right to accrued wages invoked by the plaintiffs in Alden. Thus, the Florida Prepaid\u27s Due Process exception to Alden\u27s sovereign immunity principle may be broad enough to have required a different result in Alden itself, had the exception been invoked. Alternatively, the decision in Alden, alongside that in College Savings Bank, may signal a dramatic narrowing of the Court\u27s definition of property and liberty. If so, the sovereign immunity tail is beginning to wag a large Due Process dog

Federal Jurisdiction over State Claims to Shipwrecks: Should the Eleventh Amendment Go Down with the Ship?

The Eleventh Amendment prohibits citizens from bringing actions in law or equity against individual states in federal courts. The Amendment does not address whether states are subject to federal jurisdiction for actions in admiralty in which both a shipwreck salvor and a state claim title to a shipwreck Analyzing applicable admiralty, federal, and common law in the context of Eleventh Amendment jurisprudence, this Note examines whether the states are subject to pure admiralty actions in federal court by citizen-salvors seeking either title to or reward for salvaging a shipwreck. The original intentions of admiralty law: rewarding salvors for their efforts, uniformity, and encouraging the recovery and preservation of shipwrecked property, are considered in answering this jurisdictional question. The Eleventh Amendment remains afloat to protect states from some admiralty actions, but there are circumstances in which federal courts should have jurisdiction over citizens and states competing for claim to shipwrecks

The Metes and Bounds of State Sovereign Immunity

What are the constitutional parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states’ sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, even those ratified before the Eleventh? Is state sovereign immunity article-bound, which would prohibit Congress from subjecting the states to private suit under any Article I power, but leave open the possibility that Article II or Article IV might overcome immunity? Or perhaps it is clause-bound, which would really provide no rule at all, and require a clause-by-clause analysis of Hamilton\u27s plan of the convention? I explore these questions and argue that the state sovereign immunity envisioned by the Court is an Amendment-driven inquiry: it is inviolable to the extent of the original Constitution, and even such nationalistic powers as Congress\u27 Article I War Powers or the Treaty Power of Article II cater to it. However, the Fourteenth Amendment changed the rules. Thus certain Amendments may enable its abrogation, even those ratified before the Eleventh Amendment if their preceptswere incorporated into the Fourteenth

Removing the Silencer : Coverage and Protection of Physician Speech Under the First Amendment

The physician–patient relationship rests on a bedrock of trust. Without trust, patients—and for that matter, physicians—are less willing to divulge information critical to providing accurate medical diagnoses and treatments. The state of Florida seemingly ignored this when its legislature, with support from the National Rifle Association and other pro-gun advocates, enacted the Firearm Owners Privacy Act (FOPA), a statute that restricts physicians from questioning their patients about firearm ownership. In Wollschlaeger v. Governor of Florida , the United States Court of Appeals for the Eleventh Circuit held that FOPA did not regulate physician speech but, instead, regulated physician conduct. As such, the law was exempted from First Amendment scrutiny. But almost one year to the day after publishing its first Wollschlaeger opinion, the Eleventh Circuit sua sponte vacated its original opinion and substituted in its place a brand new opinion—one holding that FOPA was subject to First Amendment scrutiny, but nonetheless passed constitutional muster. This Note uses the diverging Wollschlaeger opinions as a vehicle to analyze the First Amendment’s coverage and protection of physician speech. Specifically, it argues that an uninhibited line of communication is required to protect the trust necessary for an effective physician–patient relationship. This logical underpinning leads to the conclusion that the First Amendment presumptively covers physician speech and, furthermore, that physician speech should be subject to intermediate scrutiny—a level of scrutiny that FOPA cannot meet