SCOTUSblog Highlights Baude on State Sovereign Immunity

Academic Highlight: Baude and Sachs on State Sovereign Immunity

In a recent essay, William Baude attempts to articulate a unifying theory for the Court’s sovereign-immunity jurisprudence, building on a theory first proposed by Stephen Sachs.  But as Baude admits, this intellectually elegant rationale will fall apart if the Court overrules Nevada v. Hall – holding that states have no sovereign immunity from suit in the courts of their sister states – as it appears poised to do this Term in Franchise Tax Board of California v. Hyatt.

Many law professors (and lawyers) reject the very concept of state-sovereign immunity.  Why should states be immune from suit for violating federal law? After all, the Supremacy Clause makes clear that states are not free to disobey federal law, and Article III gives the federal courts authority to hear “all cases” arising under federal law, and so it strains the logic of the constitutional structure to give states immunity from that law. Moreover, nothing in the text of the Constitution says otherwise, least of all the Eleventh Amendment, which does not address state immunity from suit for violating federal law. Nonetheless, in Hans v. LouisianaSeminole Tribe v. Florida, and Alden v. Maine, the Court held that states cannot be sued in either their own courts or in federal court for violating federal law. How can these decisions be squared with the Constitution’s text and structure?

Baude begins his essay by deftly running through the various theories that academics have put forward to defend (or attack) the doctrine.

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