State immunity, political accountability, and Alden v. Maine

Notre Dame Law Review

Volumn 75, Issue 3, 2000, Pages 1069-1090

  Marshall, William P ^a   Cowart, Jason S ^b  

^a CASE WESTERN RESERVE UNIVERSITY   (United States)

^b U States Dist Ct W Dist M ^*  (United States)

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EID: 23044519932     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (96)

1. 119 S. Ct. 2240 (1999).
2. 517 U.S. 44 (1996).
3. The one exception would appear to be private causes of action enacted by Congress under Section 5 of the Fourteenth Amendment. See Fitzpatrick v. Bitzer, 422 U.S. 445 (1976). Neither Alden nor Seminole Tribe reached the question of whether the states are absolutely immune from private damage suits alleging constitutional violations. Although Hans v. Louisiana, 134 U.S. 1 (1890), held that states were immune from such suits in federal court, Alden and Seminole Tribe (and Hans) leave open the possibility that states could be subject to constitutional damage claims in state court. See infra note 50.
4. The decision provoked a strong dissent, see Alden, 119 S. Ct. at 2269, and has been heavily criticized by some commentators, see, e.g., Vicki Jackson, The 1999 Trilogy: What Is Good Federalism?, 31 RUTGERS L.J. (forthcoming 2000); David Shapiro, Seductions of Coherence, State Sovereignty, Immunity and the Denationalization of Federal Law, 31 RUTGERS L.J. (forthcoming 2000).
5. The decision provoked a strong dissent, see Alden, 119 S. Ct. at 2269, and has been heavily criticized by some commentators, see, e.g., Vicki Jackson, The 1999 Trilogy: What Is Good Federalism?, 31 RUTGERS L.J. (forthcoming 2000); David Shapiro, Seductions of Coherence, State Sovereignty, Immunity and the Denationalization of Federal Law, 31 RUTGERS L.J. (forthcoming 2000).
6. In the case of state immunity, the better word is "non-textual." At least since Hans the Court has not related the protection of state immunity to explicit constitutional text. The 11th Amendment, which is the textual provision that is most on point explicitly provides only that "[t] he 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." U.S. CONST, amend XI. Alden is not reached by the text of the 11th Amendment for two separate reasons. First, Alden was brought in state court. The Eleventh Amendment by its own terms only applies to federal courts. Second, Alden was brought by in-state citizens against their own state. The text of the 11th Amendment addresses only state immunity from out-of-state citizens. For the position that the 11th Amendment should be read to mean what it says, see Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 HARV. L. REV. 1342 (1989).
7. Both the majority and dissent relied heavily on historical materials. See Alden, 119 S. Ct. at 2247-53 (Kennedy, J.); id. at 2270-85 (Souter, J., dissenting). The conclusiveness of the historical evidence, however, is debatable. As Ann Althouse has noted, history may be used to support a wide range of approaches to the state immunity question, and as with many other areas of constitutional law, is unlikely to provide definitive answers. See Ann Althouse, The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 RUTGERS L.J. (forthcoming 2000).
8. The majority relied upon such precedential stalwarts as Hans and Principality of Monaco v. Mississippi, 292 U.S. 313 (1934).
9. In this Essay, the term "state immunity" refers to the constitutional protections of the state from suit, and "state sovereignty" refers to the substantive constitutional protections of the state from federal regulation. The two issues are distinct. As Alden indicates, a state may not enjoy substantive state sovereignty protections from federal statutes such as the Fair Labor Standards Act (FLSA), yet it still may be entitled to state immunity from certain suits based upon violations of that statute. See Alden, 119 S. Ct at 2269. For a thorough discussion of these terms, their meaning, and an overview of this area of the Court's jurisprudence, see George Brown, State Sovereignty Under the Burger Court - How the Eleventh Amendment Survived the Death of the Tenth: Some Broader Implica-tions of Atascadero State Hospital v. Scanlon, 74 GEO. L.J. 363 (1985), and Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683 (1997).
10. In this Essay, the term "state immunity" refers to the constitutional protections of the state from suit, and "state sovereignty" refers to the substantive constitutional protections of the state from federal regulation. The two issues are distinct. As Alden indicates, a state may not enjoy substantive state sovereignty protections from federal statutes such as the Fair Labor Standards Act (FLSA), yet it still may be entitled to state immunity from certain suits based upon violations of that statute. See Alden, 119 S. Ct at 2269. For a thorough discussion of these terms, their meaning, and an overview of this area of the Court's jurisprudence, see George Brown, State Sovereignty Under the Burger Court - How the Eleventh Amendment Survived the Death of the Tenth: Some Broader Implica-tions of Atascadero State Hospital v. Scanlon, 74 GEO. L.J. 363 (1985), and Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683 (1997).
11. As will be discussed, the precise meaning of the Court's accountability argument in Alden is not free from doubt. At one point, the Court related accountability to federally imposed judicial interference with the state's budgetary process. See Alden, 119 S. Ct. at 2265-66. At another, the Court tied accountability concerns to the federal government's failure to bring suit against the state itself. See id. at 2267; see also infra notes 62-75 and accompanying text.
12. See William P. Marshall, Understanding Alden, 31 RUTGERS L.J. (forthcoming 2000) (setting forth the various rationales that may explain the Alden decision).
13. Alden does not, for example, apply the accountability rationale to bar demands by private parties for prospective relief although that relief would presumably harm accountability interests as well. See infra notes 57-60, 78-79 and accompanying text.
14. 469 U.S. 528 (1985).
15. 426 U.S. 833 (1976). The precise point or case in which the political accountability rationale was born is impossible to determine. However, because the theory of process federalism, embodied in Garcia, has become the primary interpretive model for resolving state sovereignty issues, and for the reasons explored below, we consider Garcia to be ground zero in the Court's political accountability jurisprudence.
16. See id. at 852.
17. See id. This holding was overruled Maryland v. Wirtz, 392 U.S. 183 (1968).
18. National League of Cities, 426 U.S. at 852.
19. See Garcia, 469 U.S. at 551.
20. The Court's reasoning in this respect was heavily influenced by the works of Jesse Choper and Herbert Wechsler. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-84 (1980); Herbert Wechsler, The Political Safeguards of Federalism: The Rale of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 548 (1954).
21. The Court's reasoning in this respect was heavily influenced by the works of Jesse Choper and Herbert Wechsler. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-84 (1980); Herbert Wechsler, The Political Safeguards of Federalism: The Rale of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 548 (1954).
22. See Garcia, 469 U.S. at 550-52.
23. The political accountability aspect of Garcia was immediately noted by one scholar. In 1985, Professor D. Bruce La Pierre presciently argued that political accountability was the key to understanding the holding in Garcia. See D. Bruece La Pierre, Political Accountability in the National Political Process - The Alternative to Judicial Review of Federalism Issues, 80 Nw. U. L. REV. 577 (1985).
24. 505 U.S. 144 (1992).
25. 42 U.S.C. § 2021 (b)-(j) (1994).
26. New York v. United States, 505 U.S. at 168-69.
27. Although New York v. United States was the first decision to explicitly invoke the political accountability of governments to the citizens they represented as a basis for decision, Justice O'Connor's partial dissent in FERC v. Mississippi, 456 U.S. 742 (1982), had raised the idea previously. As she stated, "Local citizens hold their utility commissions accountable for the choices they make. . . . Congressional compulsion of state agencies, unlike pre-emption blurs the lines of political accountability and leaves citizens feeling that their representatives are no longer responsive to local needs." Id. at 787.
28. See Deborah Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1572 n.34 (1994) (arguing that New York v. United States is a significant rejection of Garcia's deference to process federalism).
29. See id. (explaining how political accountability theory differs from process federalism).
30. See H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993) (examining Justice O'Connor's theory of federalism, as embodied by her opinion in New York v. United States and other cases, and concluding that while her theory of political accountability does not flow naturally from the vision of federalism held by the constitutional framers, it may be justified by more prudential concerns for the continued autonomy of the states in an era of ever expanding federal power).
31. 18 U.S.C. § 922(s) (2) (1994).
32. For an insightful assessment of the doctrinal ramifications of Printz, and the extent to which the decision is defensible on constitutional grounds, see Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199.
33. Printz v. United States, 521 U.S. 898, 935 (1997).
34. Id. at 930 (citations omitted).
35. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute."); see also Dellmuth v. Muth, 491 U.S. 223, 251 (1989) (requiring clear language in statute to abrogate state's 11th Amendment immunity); Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 475-76 (1987) (quoting Atascadero, 473 U.S. at 242, for the proposition that Congress failed to state an "unmistakably clear expression" to abrogate 11th Amendment immunity); Green v. Mansour, 474 U.S. 64, 68 (1985) (stating that "[s] tales may not be sued in federal court . . . unless Congress . . . unequivocally expresses its intent to abrogate the immunity"); Quern v. Jordan, 440 U.S. 332, 343 (1979) (stating that "[o]ur cases consistently have required a clearer showing of congressional purpose to abrogate Eleventh Amendment immunity"); Edelman v. Jordan, 415 U.S. 651, 673 (1974) (supporting the proposition that a waiver of state immunity will be found only "where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction'" (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909))); Employees v. Missouri Dep't of Pub. Health & Welfare, 411 U.S. 279, 285 (1973) (noting that "[i]t would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without . . . indicating in some way by clear language that the constitutional immunity was swept away").
36. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (explaining that "[o]ur reluctance to infer that a State's immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system"); Quern, 440 U.S. at 343-44 (noting that the "long enjoyed" status of state immunity helps to explain clear statement require-ment); Edelman, 415 U.S. at 678 (noting that the constitutional status of immunity and importance of state fiscal administration justify a clear statement rule).
37. 473 U.S. 234 (1985).
38. See Atascadero, 473 U.S. at 238-39 (explaining that "because the Eleventh Amendment implicates the fundamental constitutional balance between the Federal Government and the States, . . . we have required an 'unequivocal expression of congressional intent to "overturn the constitutionally guaranteed immunity of the several States"'").
39. Atascadero is significant because it is often credited with introducing the modem day clear statement rule. See Brown, supra note 8; Daniel J. Cloherty, Exclusive Jurisdiction and the Eleventh Amendment: Recognizing the Assumption of State Court Availability in the Clear Statement Compromise, 82 CAL. L. REV. 1287, 1305-06 (1994); Note, Clear Statement Rules, Federalism, and Congressional Regulation of States, 107 HARV. L. REV. 1959, 1962 (1994) [hereinafter Clear Statement Rules]. For a discussion of the development of clear statement rules in the 11th Amendment context, see Cloherty, supra, at 1305-06 (examining the doctrinal basis of the clear statement rule, suggesting that the rule may have been based on an assumption that state courts could exercise jurisdiction over cases barred in federal court, and suggesting that in cases involving exclusive federal jurisdiction the clear statement rule should be relaxed), and Clear Statement Rules, supra, at 1962 (explaining extent to which clear statement rule is consistent with the political safeguards theory of Garcia).
40. Atascadero is significant because it is often credited with introducing the modem day clear statement rule. See Brown, supra note 8; Daniel J. Cloherty, Exclusive Jurisdiction and the Eleventh Amendment: Recognizing the Assumption of State Court Availability in the Clear Statement Compromise, 82 CAL. L. REV. 1287, 1305-06 (1994); Note, Clear Statement Rules, Federalism, and Congressional Regulation of States, 107 HARV. L. REV. 1959, 1962 (1994) [hereinafter Clear Statement Rules]. For a discussion of the development of clear statement rules in the 11th Amendment context, see Cloherty, supra, at 1305-06 (examining the doctrinal basis of the clear statement rule, suggesting that the rule may have been based on an assumption that state courts could exercise jurisdiction over cases barred in federal court, and suggesting that in cases involving exclusive federal jurisdiction the clear statement rule should be relaxed), and Clear Statement Rules, supra, at 1962 (explaining extent to which clear statement rule is consistent with the political safeguards theory of Garcia).
41. Atascadero is significant because it is often credited with introducing the modem day clear statement rule. See Brown, supra note 8; Daniel J. Cloherty, Exclusive Jurisdiction and the Eleventh Amendment: Recognizing the Assumption of State Court Availability in the Clear Statement Compromise, 82 CAL. L. REV. 1287, 1305-06 (1994); Note, Clear Statement Rules, Federalism, and Congressional Regulation of States, 107 HARV. L. REV. 1959, 1962 (1994) [hereinafter Clear Statement Rules]. For a discussion of the development of clear statement rules in the 11th Amendment context, see Cloherty, supra, at 1305-06 (examining the doctrinal basis of the clear statement rule, suggesting that the rule may have been based on an assumption that state courts could exercise jurisdiction over cases barred in federal court, and suggesting that in cases involving exclusive federal jurisdiction the clear statement rule should be relaxed), and Clear Statement Rules, supra, at 1962 (explaining extent to which clear statement rule is consistent with the political safeguards theory of Garcia).
42. See generally HOWARD FINK & MARK TUSHNET, FEDERAL JURISDICTION: POLICY AND PRACTICE 142 (1984).
43. See id. at 142. Fink and Tushnet state that [t]he Wechslerian political safeguards approach to federalism justifies the imposition of a clear statement requirement: if national legislators are to consider states' interests effectively before overriding them in the service of a greater national interest, they must be aware of the degree to which states' interests are at stake. The Court can promise such awareness by forcing the process of drafting legislation to produce proposals that signal their impact. Id.; see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-8, at 317 (2d ed. 1988) (stating that "[t]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests"); Brown, supra note 8, at 390 (arguing that the clear statement rule is "process [federalism] with a bite" and explaining that "[i]f Congress is the only source of protection of the states' interests, it does not seem unfair for the Court to force Congress to do its job"); accord Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988) (arguing that a clear statement requirement may be advisable even if state immunity has no constitutional component). But see William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992) (arguing that clear statement rules are not consistent with Garcia); William P. Marshall, The Eleventh Amendment, Process Federalism and the Clear Statement Rule, 39 DEPAUL L. REV. 345, 353-54 (1990) (explaining "anomalies and inconsistencies" between the clear statement rule and the premise of Garcia).
44. See id. at 142. Fink and Tushnet state that [t]he Wechslerian political safeguards approach to federalism justifies the imposition of a clear statement requirement: if national legislators are to consider states' interests effectively before overriding them in the service of a greater national interest, they must be aware of the degree to which states' interests are at stake. The Court can promise such awareness by forcing the process of drafting legislation to produce proposals that signal their impact. Id.; see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-8, at 317 (2d ed. 1988) (stating that "[t]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests"); Brown, supra note 8, at 390 (arguing that the clear statement rule is "process [federalism] with a bite" and explaining that "[i]f Congress is the only source of protection of the states' interests, it does not seem unfair for the Court to force Congress to do its job"); accord Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988) (arguing that a clear statement requirement may be advisable even if state immunity has no constitutional component). But see William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992) (arguing that clear statement rules are not consistent with Garcia); William P. Marshall, The Eleventh Amendment, Process Federalism and the Clear Statement Rule, 39 DEPAUL L. REV. 345, 353-54 (1990) (explaining "anomalies and inconsistencies" between the clear statement rule and the premise of Garcia).
45. See id. at 142. Fink and Tushnet state that [t]he Wechslerian political safeguards approach to federalism justifies the imposition of a clear statement requirement: if national legislators are to consider states' interests effectively before overriding them in the service of a greater national interest, they must be aware of the degree to which states' interests are at stake. The Court can promise such awareness by forcing the process of drafting legislation to produce proposals that signal their impact. Id.; see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-8, at 317 (2d ed. 1988) (stating that "[t]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests"); Brown, supra note 8, at 390 (arguing that the clear statement rule is "process [federalism] with a bite" and explaining that "[i]f Congress is the only source of protection of the states' interests, it does not seem unfair for the Court to force Congress to do its job"); accord Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1 (1988) (arguing that a clear statement requirement may be advisable even if state immunity has no constitutional component). But see William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992) (arguing that clear statement rules are not consistent with Garcia); William P. Marshall, The Eleventh Amendment, Process Federalism and the Clear Statement Rule, 39 DEPAUL L. REV. 345, 353-54 (1990) (explaining "anomalies and inconsistencies" between the clear statement rule and the premise of Garcia).
46. It is interesting to note that the clear statement rule seems to flow much more naturally from Garcia, because of the rule's relationship to the accountability of the federal government to the states, than does the Court's anti-commandeering rule in New York and Printz, which concerns the relationship of the states and the federal government to their respective electorates.
47. See Alden, 119 S. Ct. at 2265-66.
48. See id. at 2267.
49. Id. at 2264-65 (citing Louisiana v. Jumel, 107 U.S. 711, 727-28 (1883)).
50. Interestingly, the Court cites Printz but does not cite New York v. United States in this section of the opinion although it is the accountability of state legislatures rather than state executive officers which is presumably harmed by federal interference with the state's budgetary process.
51. See New York v. United States, 505 U.S. 144, 168-69 (1992).
52. See Printz v. United States, 521 U.S. 898, 930 (1997) (noting that state executive officials would be unfairly blamed by their constituents for the cost and defects of the federal policy if they were forced to enforce it).
53. Although raised in the litigation, Alden did not relate the anti-commandeering rule of New York v. United States and Printz to the federal government's enlisting state courts to enforce federal statutory rights. This is actually not surprising. Printz has foreshadowed this result by suggesting, in dicta, that anti-commandeering principles did not apply to the required enforcement of federal rights by state courts because of the State Judges Clause of the United States Constitution. See U.S. CONST, art. VI, cl. 2; Printz, 521 U.S. at 933-34. For a critique of this issue, see Martin H. Redish & Steven G. Sklaver, Federal Power to Commandeer State Courts: Implications for the Theory of Judicial Federalism, 32 IND. L. REV. 71 (1998).
54. See Edelman v. Jordan, 415 U.S. 651 (1974); Hans v. Louisiana, 134 U.S. 1 (1890); see also William P. Marshall, The Diversity Theory of the Eleventh Amendment: A Critical Evaluation, 102 HARV. L. REV. 1372, 1396 (1989).
55. See Edelman, 415 U.S. at 651 (setting forth the retospective-prospective relief distinction that pervades state immunity jurisprudence). The tying of budgetary accountability to government immunity may also explain federal sovereign immunity, which like state sovereign immunity has also been interpreted to apply only to suits for damage relief. Compare Lynch v. United States, 292 U.S. 571 (1934), with Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).
56. See generally Employees of the Dep't of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279, 294 (1973) (Marshall, J., concurring in the result); Jackson, supra note 4; Shapiro, supra note 4.
57. The Alden Court's concern with budgetary accountability may be even broader than a limited concern for budgetary interference that occurs at the behest of the federal government. In one passage the Court suggests that budgetary accountability concerns are raised any time courts become involved in the budgetary process. As the Court states, The asserted authority would blur not only the distinct responsibilities of the State and National Governments but also the separate duties of the judicial and political branches of the state governments, displacing "state decisions that 'go to the heart of representative government.'" A State is entitled to order the processes of its oivn governance, assigning to the political branches, rather than the courts, the responsibility for directing the payment of debts. . . . If Congress could displace a State's allocation of governmental power and responsibility, the judicial branch of the State, whose legitimacy derives from fidelity to the law, would be compelled to assume a role not only foreign to its experience but beyond its competence as defined by the very constitution from which its existence derives. Alden, 119 S. Ct. at 2265 (quoting Gregory v. Ashcroft, 501 U.S. 452, 461 (1991)). This broad reading of the accountability rationale may be significant. If this reflects the Court's position on the issue, it would suggest that States may be immune in state courts from private suits for damages brought for constitutional violations - an issue left open in Alden. After all, if the problem to be avoided is judicial interference with the budgetary process, then it would make no difference whether the source of the interference was the constitution or federal statutory law. Indeed, this broad reading of budgetary accountability in Alden would also implicate the Court's decision in Nevada v. Hall, 440 U.S. 410 (1979) (holding that states are not immune from private damage suits in sister state courts). If judicial interference with the state budgetary process is really the evil to be prevented, this concern should also apply with equal force to private suits brought in sister state courts. For an argument that Alden stands for the proposition that the states must enforce private damage suits for federal constitutional violations against itself, see Michael Wells, Suing States for Money in the State Courts: Constitutional Remedies After Alden and Florida Prepaid, 31 RUTGERS L.J (forthcoming 2000).
58. See Alden, 119 S. Ct. at 2267.
59. See United States v. California, 297 U.S. 175, 188 (1936) (holding that California was subject to suit in federal district court for violations of the Safety Appliance Act and liable to the United States for resulting penalties); see also Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539, 552 (1995) (arguing that the federal government can sue the states and award any damage award to private citizens).
60. See Hall, 440 U.S. at 410.
61. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
62. See Scheuer v. Rhodes, 416 U.S. 232 (1974) (stating that state officers may be subject to suits for damages and cities and/or political subdivisions are also not protected from damage remedies); see also Monell v. Department of Soc. Servs., 436 U.S. 658 (1978); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Lincoln County v. Luning, 133 U.S. 529 (1890); Melvyn Durchslag, Should Political Subdivisions Be Accorded Eleventh Amendment Immunity?, 43 DEPAUL L. REV. 577 (1994). When state officers or state subdivisions are forced to pay private damage awards, state treasuries are affected because many, if not most, states indemnify their officers and/or assume some of the costs of municipalities. See, e.g., GA. CONST., art III, § 5 (1983); CAL. GOV'T. CODE § 16649.92 (West 1995); 5 ILL. COMP. STAT. 350/2 (West 1999); OHIO REV. CODE ANN § 9.87 (Anderson 1999); John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50 (1998) (discussing states routinely indemnifying state officers).
63. See Scheuer v. Rhodes, 416 U.S. 232 (1974) (stating that state officers may be subject to suits for damages and cities and/or political subdivisions are also not protected from damage remedies); see also Monell v. Department of Soc. Servs., 436 U.S. 658 (1978); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Lincoln County v. Luning, 133 U.S. 529 (1890); Melvyn Durchslag, Should Political Subdivisions Be Accorded Eleventh Amendment Immunity?, 43 DEPAUL L. REV. 577 (1994). When state officers or state subdivisions are forced to pay private damage awards, state treasuries are affected because many, if not most, states indemnify their officers and/or assume some of the costs of municipalities. See, e.g., GA. CONST., art III, § 5 (1983); CAL. GOV'T. CODE § 16649.92 (West 1995); 5 ILL. COMP. STAT. 350/2 (West 1999); OHIO REV. CODE ANN § 9.87 (Anderson 1999); John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50 (1998) (discussing states routinely indemnifying state officers).
64. 209 U.S. 123 (1908).
65. See Milliken v. Bradley, 433 U.S. 267 (1977) (suggesting that compliance with affirmative injunction may require significant expenditures of state resources without violating principles of state immunity).
66. 119 S. Ct. 2199 (1999).
67. 119 S. Ct. 2219 (1999).
68. See Hutto v. Finney, 437 U.S. 678 (1978) (holding that attorneys fees may be awarded against the states without violating state immunity protections).
69. The Court may be suggesting that interference with the state budget would offend constitutionally based accountability concerns unless that interference occurs as a result of the direct interference of the federal government, i.e., the federal government itself brings the suit. This rationale assumes that federal government enforcement against the states will be more sympathetic to state budgetary concerns than would a private litigant. If this is indeed the meaning underlying this version of accountability, then budgetary accountability concerns are supported by the same policies that underlie the enforcement accountability rationale to be discussed in the Section that follows.
70. Alden, 119 S. Ct. at 2267 (citations omitted).
71. Of course, also like budgetary accountability, the strength of this rationale is diminished in that it was not mentioned in the Seminole Tribe opinion.
72. The Court does not identify the theoretical basis of its enforcement accountability argument. In fact, while the Alden opinion cites New York v. United States, Printz, and Garcia elsewhere for general propositions relating to federalism and the sovereign status of the states, it does not refer to any of these decisions in its discussion of why federal statutory damage claims must be brought by the United States.
73. See Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw. U. L. REV. 62, 74-76 (1990) (arguing that the importance of executive enforcement of federal law lies, in part, in the fact that the executive is uniquely accountable for its actions whereas nonexecutive enforcement is not subject to any type of electoral accountability); Harold J. Krent & Ethan G. Shenkman, Of Citizen Suits and Citizen Sunstein, 91 MICH. L. REV. 1793, 1799, 1803-04 (1993) (observing that suits by the executive branch, as opposed to private suits to enforce federal law, have a variety of benefits including: promotion of accountability by ensuring an avenue of political redress; minimization of the potential for self-interested behavior; ensured coordination and centralization over matters of importance to the public at large; and the ability to take overriding policy considerations into account).
74. See Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw. U. L. REV. 62, 74-76 (1990) (arguing that the importance of executive enforcement of federal law lies, in part, in the fact that the executive is uniquely accountable for its actions whereas nonexecutive enforcement is not subject to any type of electoral accountability); Harold J. Krent & Ethan G. Shenkman, Of Citizen Suits and Citizen Sunstein, 91 MICH. L. REV. 1793, 1799, 1803-04 (1993) (observing that suits by the executive branch, as opposed to private suits to enforce federal law, have a variety of benefits including: promotion of accountability by ensuring an avenue of political redress; minimization of the potential for self-interested behavior; ensured coordination and centralization over matters of importance to the public at large; and the ability to take overriding policy considerations into account).
75. Printz v. United States, 521 U.S. 898, 930 (1997).
76. See La Pierre, supra note 20, at 642 (observing that the federal government is only accountable to the national electorate if it is forced to bear the financial and administrative costs of its decisions because these costs must be passed on through higher taxes). This argument is problematic, however, because it may prove too much. If the federal government is less politically accountable to the national electorate when it uses private citizens to enforce federal law, this would seem to be equally true regardless of whether a state, or some other entity, is the defendant. The best, and perhaps only, response to this criticism is that political accountability is only relevant when considering issues of federalism and the interrelationship between federal and state power.
77. Alden, 119 S. Ct. at 2267.
78. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551 (1985).
79. See generally Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S. CAL. L. REV. 735, 770 (1992) (noting that prospective remedial decrees are often the product of negotiation among the parties and that courts work to accommodate the needs of both parties).
80. See Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994) (noting that formal and informal relationships between federal and state officials ensures that each level is concerned about, and dependent upon, the other).
81. See Krent & Shenkman, supra note 65, at 1803-04.
82. See generally Kramer, supra note 71.
83. See id. at 1808 (explaining that private parties have self-interested reasons for bringing suit).
84. See generally Dean J. Spader, Immunity v. Liability and the Clash of Fundamental Values: Ancient Mysteries Crying Out for Understanding, 1985 CHI.-KENT L. REV. 61, 79 (noting that sovereign immunity can be viewed as a protective device created to protect governments from "insensitive citizen demands").
85. See supra notes 70-75 and accompanying text.
86. One potential justification of triple accountability may be that Garcia and the clear statement rule do not sufficiently protect the states, and therefore additional safeguards like executive enforcement may be required. See Althouse, supra note 6 (observing that if Garcia really worked, Congress should have decided on its own to require executive enforcement).
87. For a discussion of the logic and fallacies of the retrospective/prospective distinction, see Carlos Manual Vázquez, Night and Day: Couer d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 GEO. L.J. 1 (1998).
88. In other contexts, the prospective/retrospective distinction has been explained on the grounds that prospective suits are more important to the federal interest because they ensure that states will follow federal law in the future, whereas retrospective suits only compensate a single individual for a harm suffered in the past. See Althouse, supra note 77, at 1143 n.83. While there may be a sound reason (outside of political accountability) for the distinction which the Court has drawn, the point here is that the enforcement accountability rationale does not contain within it any principled basis for distinguishing between prospective and retrospective relief. Therefore, this rationale cannot serve to unify or justify the broader jurisprudence of state immunity law.
89. Where else, for example, do justices assert that they will not follow stare decisis in one case because the majority of the Court refused to follow precedent in a previous decision? See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 304 (1985) (Stevens, J., dissenting).
90. 2 U.S. (2 Dall.) 419 (1793).
91. See Principality of Monaco v. Mississippi, 292 U.S. 313, 325 (1934) (stating that Chisholm created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted").
92. 134 U.S. 1 (1890).
93. 209 U.S. 123 (1908).
94. See generally FRANZ KAFKA, THE TRIAL (1969). Hans held that states were immune from suits brought by their own citizens in federal court although the text of the 11th Amendment only prohibits suits against states by out-of-state citizens. Hans never made clear whether the basis of this holding was (a) the 11th Amendment, (b) Article III, (c) sovereign immunity, (d) other, or (e) all of the above. Young, in turn, ruled that a state officer enforcing state law is not the state when sued for injunctive relief but left intact the rule that a state officer may be considered the state when sued for damages. The Court has applied this rule in cases where the official action triggering the claims for injunctive and monetary relief is the same thus leading to the schizophrenic result that a state officer defendant may be deemed both the state, and not the state, in the very same action. See Edelman v. Jordan, 415 U.S. 651 (1974).
95. See CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS 292 (4th ed. 1983) (noting that "the doctrine of Ex Parte Young seems indispensable to the establishment of constitutional government and the rule of law"), cited in ERWIN CHEMNRINSKY, FEDERAL JURISDICTION 413 (3d ed. 1999).
96. See CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS 292 (4th ed. 1983) (noting that "the doctrine of Ex Parte Young seems indispensable to the establishment of constitutional government and the rule of law"), cited in ERWIN CHEMNRINSKY, FEDERAL JURISDICTION 413 (3d ed. 1999).