Day 13: 2/29/16
Cases:
New York v. United States
Facts: Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985
which required states to provide for the disposal of such waste generated within their borders.
The Act provided three “incentives” to states to comply: 1) Monetary incentives which allow
states to impose surcharge on waste received from other states; 2) Access incentives which allow
states to increase cost of access to their sites or deny access to waste generated in states that
didn’t comply; 3) “Take title” sanction, providing that if a state failed to dispose of internally
generated waste, the state would “take title” of the waste and become liable for all damages
suffered by waste generator and owner.
Procedural History: NY seeks declaratory judgment, claiming that all three provisions violate
the 10th Amendment. Court upholds first two incentives, rules that the third provision is
Unconstitutional.
Issue: Does the Low-Level Waste Act violate the 10th Amendment?
Holding/Rule: Yes, the third provision does violate the 10th Amendment- “Congress has
substantial power to encourage the states” but cannot “compel the States to do so.” SCOTUS
gives us two ways to look at any federalism question. First, is the act of Congress authorized by
one of the powers delegated in the Constitution? Second, does the act invade state sovereignty
reserved by the 10th Amendment? The court says we have one, we can’t have the other; if the act
is authorized by the delegated enumerated powers in the Constitution, it can’t possibly infringe
on the state sovereignty reserved by the 10th Amendment. So we look to the first questionCongress has the power to regulate interstate commerce, yes. But that’s not what they are doing,
they are telling states how to regulate, limiting state’s power to choose how to regulate. Court
says this is commandeering the state legislative process by “compelling them to enact and
enforce a federal regulatory program.” The 10th Amendment reserves the power of the states to
decide how to regulate- Congress can encourage a certain way (through first two provisions) but
cannot compel states to regulate in a certain way (last provision). The court held that the final
provision is unconstitutional. Finally, court argues that the constitution divides authority not to
protect the states, but to protect citizens and secure individual rights.
Dissent (Justices White, Blackmun, and Stevens): This act was a result of state efforts to achieve
remedies to this waste problem. The federal government is not infringing on state sovereignty,
only acting as “a referee among the states to prohibit one from bullying the other.” The waste
problem is a “crisis of national proportions” and to worry about tyranny against individuals in a
situation like this seems irrational.
Concur in part, dissent in part (Stevens): To say that Congress does not have the power to
command a state to implement and act of Congress is “incorrect and unsound”- the 10th
Amendment cannot limit the power of Congress to exercise the powers delegated to it by the
Constitution.
Class Notes:
Hypo: Congress passes a law: no person may use the highways to transport any federal currency
in denominations greater than $1000 across state lines. Further, any state police officer who
observes such an amount in a vehicle on the highways must attempt to ascertain its origin and, if
there is probable cause to think it was transported over state lines, arrest the person and turn them
over to the police. Constitutional?
Is this a regulation of interstate commerce? Yes- regulating money across state lines. This is a
pretty clear constitutional power of congress under the commerce clause. But what about the
police officers? What is the problem here? This is a violation of the tenth amendment: powers
not delegated to the United States by the Constitution are reserved for the states.
-
-
-
Solicitor General Gowder says commerce powers are delegated to Congress and the
regulation of how the police can stop people in carrying out this constitutional regulation
is necessary and proper- so no violation of 10th Amendment? No, this is not proper.
Tenth amendment is just a restatement of limited powers. Congress has enumerated
powers, ditto with the other branches. The tenth amendment is just a reminder of these
limitations.
o How do we get an anti-commandeering principle out of this amendment then?
Unless there are additional limitations elsewhere? Such as, the idea of state
sovereignty.
o Where do these principles come from? How do we have pre-constitutional
limitations rooted in state sovereignty?
Proper: We saw this in NFIB last week- proper is based on preexisting conception on the
appropriate spheres of power between federal and state government.
Background: in the early 20th C. we saw a number of cases that were stuck down on the basis of
the tenth amendment. With change in courts orientation, we saw these idea drop away. US v
Dauby mentions that the tenth amendment is just a reminder of the enumerated powers and
limitations on the powers.
Three distinct ideas we might be concerned with: (possible applications of the tenth amendment)
1. Does the 10th amendment restrict the range of congress powers to regulate ordinary
people? Is it the states job to regulate citizens (Darby said no, you can’t tell congress not
I.e., darby holds that the 10th amendment is just a reference to the other limitations on Congress's
to regulate citizens
power to regulate ordinary people, not an independent source of limitations
2. Can congress apply ordinary law to state? Example: Would congress be able to
constitutionally apply the Fair Labor Standards to all state employees? In national league
of cities, this was struck down, in Garcia, National League of Cities is overrules
a. Congress can generally apply an ordinary law, which would apply to individual
citizens, to activities that the state does.
3. Co-opting the institutions of state governments- this is the area where we need to focus
our attention- still issues to the constitutionality of acts of Congress
Notes on NY v US: Is this within Congress enumerated powers? Yes, pretty clearly within
interstate commerce- interstate movement of radioactive waste. The first two of the incentives
are within powers. What’s wrong with the “take title” provision? The final provision transfers
the title of waste from private producer to the state.
-
This is a necessary means to Congress achieving their ends? Congress can regulate
intrastate commerce (Wickard) in order to achieve the end. What’s wrong with this
argument? Is Congress commanding the states do this? Technically not.
o Too much of an “incentive”- more like forcing/compelling them to do something
o Simple unconstitutional coercion type of case- there are limitations that keep
congress from unjustifiable holding things they give to states hostage (i.e. cut off
state funding)
- Real issues:
o Is there any real distinguishing lie between encouragement and coercion?
o Is there an independent lack of power that allows Congress to transfer title?
- The constitution doesn’t permit the transfer of title. Why don’t they have power to
transfer title if it’s something that exists in commerce? They have the power to regulate
interstate commerce.
o What have we read that regulate this? Printz: Congress doesn’t have the power to
compel states to do this without state consent.
- Policy level concerns found in Printz :
1. Democratic: Are states independent, political entities? States need to do their own
legislating so they aren’t just “puppets” of the federal government. Congress can’t order
NY to legislate in NY v US.
a. Functionally indistinguishable from a law directly reaching into state budget and
transferring it to the people who produce the waste. This is what actually drives
the unconstitutionally of the take title
i. But nowhere in the constitution does it say that congress can’t tinker with
state budget’s- is this reserved under the 10th amendment.
Congress had plenty of ways to get the Low-Level Act enacted. Why didn’t they? Hypo:
Congress passes a law requiring that producers of radioactive waste dispose of all their waste
within their own state, in a facility guaranteed by the state to meet certain federal standards. If
there’s no such facility available for a producer, it may not engage in the activity that produces
the waste --- pretty clearly constitutional
Dissent in NY: Theory of federalism- what is the broad issue of how we should allocate federal
decision making?
The states are allowed to bargain among themselves, states made these decisions,
Congress is just acting as a “referee”: this is actually pro-federalism
An actual, federal enactment by Congress is way more restrictive on states- they are just
giving states a baseline rule, letting states enact their own regulations.
Printz Notes: Invalidated law compelling state officers to execute federal laws: Congress tried to
force state officers to conduct background checks on prospective handgun purchasers.
-
Unconstitutional, Congress does not have the power to do this. Why? Congress is just
asking law enforcement officials to apply federal law. If state courts have to apply federal
law, why don’t state officers have to apply federal law?
o Court says you cannot compel state officers directly:
§ Can’t undermine state legislative autonomy
§ Can’t undermine power of the people of the state to control budgets
§ Can’t undermine accountability
o Maybe Congress has the power to compel state judges but not state officers
through the Supremacy Clause. Simple, direct textual distinction between the
power to regulate state courts and Congress’s powers to regulate state officers.
Final Point: New York has no distinction in their case- of course states have to apply federal law.
Supremacy clause says federal law trumps state law. State judges shall obey federal law. But do
we need to distinguish between obeying and applying federal law?
-
-
-
What do we get: Congress cannot order the main line of state governments- states are
independent governmental entities. Their power is rooted in federalism. Have power to
engage in their own legislature and regulation in their choices
o Anti-commandeering principle
This doesn’t mean that states aren’t obliged to obey federal law.
o But they are allowed to regulate and implement their own ways to follow federal
law
Multi-level democratic autonomy.
Constitutional Outline II.
Reading: pg. 163-179
The Tenth Amendment as an External Constraint on the Federal Commerce Power
Internal Constraints – Ascertaining the limits of power delegated to the Federal Government
under the affirmative provisions of the Constitution
Lopes Morrison, NFIB review the use of the Article I §8 to demonstrate the scope of
Congressional authority
External Constraints – Discerning the core of sovereignty retained by the States under the 10th
Amendment
• 10th Amendment- Powers not delegated to the Fed government, nor prohibited by
the States are reserved powers of the States
• 11th Amendment- Judicial Power o the US shall not be constructed tot extend to
any suit in law or equity, commences or prosecuted against one the US by citizen
of another state, or by Citizens or Subjects of any Foreign State
• General structural postulates of federalism
Anti-Commandeering Principle– Prohibits the federal government from commandeering state
governments, more specifically, imposing targets affirmative, coercive duties upon state
legislators or elected officials.
• External constraint on congressional power
Reoccurring Legal Question- Must determine whether any challenged provision oversteps the
boundary between federal and statute authority
What is the constitutional source of this problem: 10Th Amendment:
I.
The powers not delegated to the United states by the Constitution, nor prohibited by it to
the states, are reserved to the sates respectively, or to the people
• Returns to NFIB- the 10th amendment is a vague of constitutional text;
• 10 Amendment is a restatement of limited Powers- It is a reminder that you cannot imply
un-enumerated powers because Congress is a Congress of enumerated powers
Unless you also think 10th Amendment also says there are additional limitations on the
power of Congress.
• There are pre-constitutional restrictions on the power of Federal Government
i.e. found in the limitation of the word proper in NFIB
• parcel the words regulate- All to be based on pre-existing conceptions of power and
regulation between the Federal and State Powers
III. Other limitation based on the idea of sovereignty
II.
Background on 10th Amendment:
On the early of the 20th century we saw a number of cases that were struck down on the basis of
the 10th amendment
1
•
•
Change in course of the courts orientation
Darby pg. 129
o 10th Amendment Our conclusion is unaffected by the 10th Amendment which
states but a truism that all is retained which has not been surrender, there is
nothing in history of its adoption to suggest that it was more than a declaratory
relationship between national and state governments as it has been established by
the Constitution before the amendment or that its purpose was other than to ally
fears that the new national government might seek to exercise powers
Three Categories to Place Note Cases into:
1. Regulating Citizens –Does the 10th Amendment provide for special areas of regulation where
only the states can regulate their citizens; do pre-constitutional ideas restrict the power of
Congress to regulate people
Darby says we cannot use 10th from regulating labor it is within the commerce power
I. National League of Cities v. Usery (1976) –Involved amendments to the Fair Labor Standards
Act that extended min wage and maximum hour provisions to employees of state and local
governments
1. State autonomy defense to otherwise valid federal regulation, finally succeeded
2. Extension was legal within the power of Congress in the Commerce Clause
3. When Congress seeks to regulate directly activities of States as public employers, it
crosses a affirmative line of limitation on exercise of power akin to other commerce
power affirmative limitations contained in the Constitution
4. The amendments would operate to directly displace the States freedom to structure
integral operations in areas of traditional governmental functions.
a. the application of these regulations will interfere with the governmental functions
of these bodies and employee-employer relationship
5. Power to regulate the wage and hours of federal employees’ in states are not within the
authority granted in Article I §8 cl. 3.
6. Blackum- Balancing approach must uphold Federal power where state compliance with a
imposed federal standards would be essential
7. Dissent- Brennan and White, Marshall- even with regulation States are able to protect
their own interest
II. Garcia v. San Antonio Metropolitan Transit Authority (1985) – OVERRULES National
League of Cities. Court held a municipal transit authority properly subject to the minimum wage
and overtime requirements of the Fair Labor Standards Act.
I. Effort to define traditional governmental functions that were immune from regulation is
unworkable
II . Reject rule of state immunity from federal regulation that turns on judicial appraisal
of whether a particular governmental function is integral or traditional.
2. Applying Ordinary Law to States – Whether or not Congress can apply ordinary law to the
states
2
i.e. Does Americas Power of Disabilities act have the power to say that State Court
Houses must have wheel chair access?
I. South Carolina v. Baker (1988)- upheld the removal of an exemption from federal income tax
for interest from bearer bonds issued by the states. The law in effect forced stated to switch to
issuing tax-exempt registered bonds in order to raise debt capital.
i.. State does not aruge that was left isolated or powerless from the political process
ii. Nothing in Garcia or 10th Amendment authorizes the courts to second-guess the substantive
basis for congressional legislation.
II. New York v. United States (1946) – the court upheld against a similar state immunity claim
the application of a federal tax to the state of New York Sale’s of bottled mineral water from
state-owned spring.
i. There are some activities that only a state can regulate, but so long as congress
generally taps a source of revenue by whomsoever earned and not uniquely capable of being
earned only by a State, the Constitution of the US does not forbid it merely because its incidence
falls also on a State
ii. Not ready to lay a tax on every class of property and activities of States and
individuals alike
Rule: Congress can apply generally applicable laws to generally applicable laws
If laws can be applied to ordinary folks it can be applied to what States do
• Congress power to regulate over state activities is not limitless
3. Co-opting State Governance –There are issues to the constitutionality of acts of Congress to
regulate sate
I. Coyle v. Oklahoma (1911) – Invalidated a condition in the federal enabling act for the
admission of Oklahoma to the union on that purported to the specific location of the state capital
A. Holding: the power to locate its own seat of government and to change the same
are essentially state powers beyond the control of Congress
i. Never been narrowed or overruled
Class Discussion:
Hypo 1
Congress passes a law: No person may use the highways to transport any federal currency in
denominations greater than $1000 across state lines. Further, any state police officer who
observes such an amount in a vehicle on the highways must attempt to ascertain its origin and, if
there is probable cause to think it was transported over state lines, arrest the person and turn them
over to the police. Constitutional?
• Is this a regulation of interstate commerce: Yes; it is clearly a use of interstate commerce
clause power
3
•
Problem with the idea that Congress can order about State police officers
The Scope of Judicial Protection of State Autonomy From Federal Encroachment
1. New York V. United States (199) – Limits by what method Congress may regulate states.
The low level radioactive waster policy amendment act of 1985 regarded that states provide for
the disposal of waste generated within its boarders and provided incentives to comply with
obligation.
Issue: Circumstances under which Congress may use the States as implementations of
Regulation; Can Congress direct to otherwise motivate the States to regulate in a particular field
or in a particular way
Controversy: Take Title Clause – a take title sanction, providing that the state failed to provide
for the disposal of all internally generated waste by a particular date must take title to the waste
and become liable for all damages suffered by the waste’s generators owner
Court finds take title provision unconstitutional
§ Constitution does not give Congress the power to compel the States to
compel states to create and require the disposal of radioactive materials
• 10th Amendment confirms the power of the federal government is subject to
limits that may in a given instance, reserve the power to the States
• Commerce Clause
§ allows Congress to regulate interstate commerce directly
§ DOES NOT allow Congress to regulate how State governments regulation
of interstate commerce
Option 1: Take title to Waste à beyond the authority of Congress
Option 2: Direct order to regulate à beyond authority of Congress
•
I. State sovereign is not an end in itself; The purpose of Federalism is to secure to citizen the
liberties that derive from the diffusion of sovereign power
Class Discussion:
1. Is there any independent principle of crossing the line of encouragement v coercion
or
-it is hard to interrupt the statue this way because under Spending Power Congress has
the power
- it is not that disproportionate
2. Is it that there is an independent lack of power in Congress to transfer the title
-Depends on this idea of federalism
3. Why can’t congress just transfer title—It is hard to think about why we would worry about it
4. Congress had many other ways to get this enacted
4
Hypo 2: Congress passes a law requiring that producers of radioactive waste dispose of all their
waste within their own state, in a facility guaranteed by the state to meet certain federal
standards. If there’s no such facility available for a producer, it may not engage in the activity
that produces the waste.
• Why didn’t congress do this?
o Came down to sausage making
2. Printz v. United States (1997)- held invalid provision of the Brady Handgun Violence
Prevention Act that require state and local law enforcement officers (CLEOs) to conduct
background checks on prospective handgun purchasers.
I. Congress can impose responsibilities but not without the consent of the States
1. Federalist Paper 39 –Farmers rejected the concept that a central government would act
upon and through the states (as the Articles of Conferderation) and instead designed a system
where State and Federal government operated with concurrent authority over the people.
II. Congress cannot direct State law enforcement officers to carry out a federal mandate
III. Federalist Paper Arguments
1. Federalist Paper 36 – Congress will probably make use of State officers and State
regulations, for collecting federal taxes
2. Federalist 45- Predicated that the eventual collection of internal revenue under the
immediate authority of the Union, will generally be made by the officers, and according
to the rules, appointed by the several states.
3. Federalist 27- The government also invokes the Federalists more general observations
that the Constitution would enable the national government to employ the ordinary
magistracy of each state in the execution of the laws
4. Federalist no. 45- extremely probable that in other instances particularly in the
organization of the judicial power, the officers of the states will be clothes in the
correspondent authority of the Union.
VI. State courts my apply federal laws but says nothing about state executives officials
administering federal law
Holding: Congress cannot circumvent prohibition by conscripting the State’s officers directly
Dissent: Souter, Ginsberg, Breyer
• If Congress believes that a statute will benefit the people of the Nation and serve the
interest of the cooperative federalism better than an enlarged federal bureaucracy, we
should respect both its policy judgment and its appraisal of its constitutional power
• Federalist 27. –Legislatures Courts and Magistrates of their respective members will be
incorporated into the operations of the national government, as far as it just and
constitutional authority extends
5
o This is where the authority of the National Government when exercising an
otherwise legitimate power to require state auxiliaries
Class Discussion:
1. Regulating State Budgets:
What happens when states are not in full control of their budgets?
• There is serious concern about granting congress the power to directly tap into
state budgets
• It is not written but no where in the Constitution does it say that congress can not
tinker with the power of the state budget.
2. If state have to follow federal law why can’t Congress force state officials to follow federal
law?
• Don’t want to undermined the relationship between citizens and the State
• Undermines State legislative autonomy
• Don’t want to undermined the power of the people within the State to regulate
their own budget
3. Why not use this to direct enforcement?
Supremacy Clause- judges in every state shall be bound by federal law; it does not say
that the executive discretion that are choosing to arrest and prosecute people are bound to the
application of the federal laws;
• It is a simple textual argument
But rooted in the difference between idea of judges
just applying the law (including supreme federal
law) vs executive officials exercising discretion.
Choosing which laws to enforce is an executive
function that responds to democratic choices made
by the state's people; the same cannot be said
(arguably) of judges choosing how to actually apply
the law.
6
10thAmendment
Opening Hypo: Congress passes a law: no person may use the highways to
transport any federal currency in denominations greater than $1000 across
state lines. Further, any state police officer who observes such an amount in a
vehicle on the highways must attempt to ascertain its origin and, if there is
probable cause to think it was transported over state lines, arrest the person
and turn them over to the police. Constitutional?
10th amendment: powers not delegated to the US by the constitution nor
prohibited by the states are reserved to the states respectively or to the people.
Does the 10th amendment even do anything? It’s a restatement of the idea of
enumerated powers.
3 CONCERNS, can congress..
1. Regulate citizens ?
2. Apply ordinary law to states? national league of cities struck down and ,
Garcia overturned league. The law now is that the fed gov can regulate
state activities.
3. Co-opting State governance.
NY v US (Radioactive waste case)
US SC 1992
Congress tried to regulate radioactive waste with 3 policies: 1) monetary
incentives to states 2) access incentives 3) take title sanction : which forces
states to take title of waste from the private producer if it failed to provide for its
responsible disposal.
• Problem with 3rd policy that essentially forced the states to pass and
enforce federal regulations rather than merely incentivize.
•
The constitution does not divulge the power on the fed government to
coerce states and impose fed regulations on state matters.
• Dissent Argument: that failure to force states to regulate on behalf of the
government actually gives the Fed gov more power by forcing fed gov to
create many bureaucracies to enforce its regulations.
Printz v US (Forcing state officials to enforce Gun control Congressional act)
US SC 1997
Congress was trying to force state officials to run background checks under the
CLEO (gun control act). Problem because the fed government would force state
to use its resources to apply a law that may not sit well with all of its citizens.
Argument that the federal government gets to take credit for success and
escape liability to failure because the states are forced to use their own
resources.
-Supremacy clause: state judges must abide by fed law, does that not imply that
the fed gov can make state officials apply and enforce fed law.
***Congress cannot order about the mainline instruments of state governments.
States are independent, power rooted in dual power structure of federalism.
*** States have the power to regulate the way they see fit.
***State legislatures are not obliged to regulate its citizens to apply federal law.
force states to
Reno v Condon (congress cannot regulate citizens)
US SC 2000
DPPA Drivers Privacy Protection Act prohibiting DMVs from knowingly
distributing citizens private information and also imposed regulations on the
resale or disclosure of information. Ct held that the distinction btw NY, and
Printz cases was that the federal gov was forcing the states to regulate citizens
but here DPPA regulates states as owners of the databases not on the citizens
themselves, thus the congressional act does not exceed congress' powers.
Constitutional Law
February 29, 2016
I
Opening Hypo: Congress passes a law that says no person may use the highways to transport
any federal currency in denominations greater than $1,000 across state lines. Further, any
state police officer who observes such an amount in a vehicle on the highways must attempt
to ascertain its origins and, if there is probable cause to think it was transported over state
lines, arrest the person and turn them over to the police. Constitutional?
Ø Is this a regulation of commerce?
§ Involves channels of instrumentalities across state lines. Pretty clearly falls under the
commerce power.
• There is a problem with the idea that Congress can order around state police
officers to execute a congressional order according to the 10th Amendment.
• The 10th Amendment is very vague. Does it actually do anything?
Ø Restatement of Congress’ enumerated powers. You cannot insert unenumerated powers.
• Idea: Maybe there are extra constitutional or pre-constitutional restrictions on the
federal government.
• The goal this week is to figure out where these 10th Amendment principles come
from since un-enumerated restrictions exist today.
II Background:
Ø In the early 20th century, there were numerous cases that were struck down on the basis of
the 10th Amendment.
§ Look at page 129 of Darby in the textbook regarding the 10th Amendment.
• The 10th Amendment is irrelevant in Darby because Congress acted according to
its enumerated powers under the Commerce clause.
• For most of the 20th century, the 10th Amendment was not used in striking down
Congress’s power.
III 3 ideas that we might be concerned with regarding the 10th Amendment:
1. Regulating citizens: Does the 10th Amendment provide for special areas of regulation
where only the states can regulate?
a. This idea is rejected in Darby.
2. Applying ordinary law to states: Whether or not Congress can apply ordinary law to
the states.
a. Congress can apply law that concerns ordinary people to the states as well.
3. Co-opting the institutions of state governments.
New York v. United States (1992)
Facts:
• Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985.
• This act attempted to force states to arrange for the disposal of radioactive waste through
the use of three incentives.
o A monetary incentive to encourage states to open their own waste sites.
o An access incentive where states without waste sites could be denied access to
waste sites in other states.
o A take title incentive where a state that did not arrange for the disposal of the
waste would be required to take ownership of the waste and be liable for damages
incurred by the waste owner.
• New York claimed the Act violated the 10th Amendment of the United States
Constitution by invading the sovereignty of the state.
Procedural History:
• The case was brought in the Northern District Court of New York and New York
appealed the U.S. Supreme Court.
Holding:
• The Court upheld two of the three provisions of the act but held the third
unconstitutional.
• Congress has the power to encourage states to dispose of the waste generated but cannot
force or compel the states to do so.
Rationale/Analysis:
• The act of controlling the interstate movement of radioactive waste is constitutional under
Commerce clause.
• 3rd Take title provision: Transferred title of the waste from a private producer of the
waste to the state. Can’t just transfer title to the states.
• This provision crosses the line from encouragement to coercion.
• Congress cannot commandeer the legislative process of the states by directly compelling
them to enact and enforce a federal regulatory program because that would be
inconsistent with federalism.
• Choice between two unconstitutionally coercive regulatory techniques is no choice at all.
Dissent: Justice White
• 1985 Act was a symbol of cooperative federalism where states, including New York,
bargained among themselves to achieve compromise and a solution.
• Broader issue is how we should allocate federal decision-making. Regulation in this case
can be interpreted as pro-federalism because it gives states power to make choices and
regulate.
Class Discussion:
• You cannot transfer cash from states to private people. Can’t direct states to assume the
liabilities of certain residents.
• Congress had so many ways it could have gone about regulation.
• We don’t know why Congress didn’t decide to do it in a different way. Perhaps just
politics?
Printz v. United States (1997)
• The Supreme Court held invalid a provision of the Brady Handgun Violence Prevention
Act that required state and local law enforcement to conduct background checks on
handgun purchasers.
• Cannot force state law enforcement officers to participate in the administration of a
federal regulatory scheme.
Rule at issue: How much can state law enforcement officials be pressed into service on
behalf of the government?
o Side battle about what history tells us based on Federalist papers.
o Don’t want to undermine legislative autonomy.
o Supremacy Clause: Mentions judges must be bound by federal law. Does not say
that the executive in each state must be bound by federal law.
Dissent: Justice Stevens
• The federal government was supposed to have the power to demand local officials
to implement national policy programs.
• The majority’s viewpoint will promote tyranny by forcing the federal
government, as opposed to local officials, to enforce its policies.
Wrap up:
• Congress cannot order about the mainline instruments of state governments.
• Drawn from the sovereign idea that states are independent governmental entities.
• Can engage in own choices to legislate and regulate. Doesn’t mean states aren’t obliged
to apply federal law when a federal issue is before them.
o Fundamental idea: multilevel governmental autonomy.
•
ConstitutionalLawI
Outlinefor2/29/16
10thAmendmentMaterial
NewYorkv.UnitedStates
1. FactsandBackground:Afederalact,the1985Low-LevelRadioactiveWastePolicyAmendment
Act,mandatedforstatestosafelydisposeofradioactivewastecreatedwithintheirstates.The
ActcontainedthreesetsofincentivesforstatestocomplywiththeAct.Thefirstsetof
incentivesweremonetary.Thesecondsetofincentivesallowedstatestodenyaccesstowaste
fromstatesnotcomplyingwithfederaldeadline.Thethirdincentive(thetaketitleprovision)
saidthatstateswhichfailtoprovideforthedisposalofwastebyaparticulardatemusttaketitle
toandpossessionofthewasteaswellasbecomeliableforalldamagesduetothestate’sfailure
totakepossession.NewYorkarguedthatallthreeincentiveswereinconsistentwiththeTenth
Amendment.
2. ProceduralHistory:Federaldistrictcourtdismissedcomplaintandcourtofappealsaffirmed.
TheSupremeCourtgrantedcertiorari.
3. Issue:AreanyofthethreeincentivesinconsistentwiththeTenthAmendment?
a. Thefirsttwosetsofincentives(themonetaryandaccessincentiveprovisions)are
consistentwiththeConstitution,butthe“taketitle”provisionisinconsistentwiththe
TenthAmendment.
4. Holding:TheSupremeCourtheldthe“taketitle”partofthelegislationunconstitutionalbecause
itviolatedthe10thAmendment–forcingthestatestotakeownershipofthewastewould
improperly“commandeer”stategovernments.Thefederalgovernmentmaynotdirectlyforcea
statetoenactoradministerafederalregulatoryprogram.Inessence,itisunconstitutionalfor
Congresstoforcestatelegislaturesorstateagenciestoadoptregulations.However,Congress
mayadoptothermethods.Forexample,Congressmaysetstandardsthatstateandlocal
governmentsmustmeet.OrCongresscouldattachstringstograntmoneyandthroughsuch
stringsinducestateandlocalactions.
In-ClassHypo
1. Interstatecommerce
a. Isitinterstatecommerce?Yes,clearlywithinregulatingchannelsandinstrumentalities
ofinterstatecommerce
th
2. 10 Amendment
a. ProblemwithideathatCongresscancommandstatepoliceofficerstodosomething?
10thAmendment
1. 10thAmendmentisvagueconstitutionaltext
2. Questionwhether10thAmendmentactuallydoesanything.Twoapproaches:
a. 10thAmendmentissimplyareminderofCongress’spowerundertheConstitutionoran
interpretiveguide
b. The10thAmendmentpointstolimitsinfederalauthority–protectingstatesovereignty
fromfederalintrusion
3. Askourselvesthisweek:Wheredowefindlimitationsrootedinstatesovereignty?
Historyof10thAmendment
1. Early20thcenturysawnumberofcasesstruckdownonbasisofthe10thAmendment
2. NewDealPeriodsawthoseideasgoaway
a. UnitedStatesv.Darby,whereCourtsaid10thAmendmentisatruism,congressisacting
initsenumeratedpowersso10thAmendmentsdoesn’tcomeintoplay
3. Notecasescenteredaroundthreeideas/possibleapplicationsof10thAmendment
a. First,does10thAmendmentprovideforspecialareasofregulationwhereonlythestates
mayregulateinthoseareas?IsCongresslimitedtowhatitcanregulate?
i. Darbyexpresslyrejectedsuchapremise
b. Second,canCongressapplyordinarylawtothestates?
i. GarciaoverruledNationalLeague
1. RuleisthatCongresscanapplygenerallyapplicablelawto
instrumentalitiesofstatesinthewaytheycanapplythemtopeople
c. Third,cooptingtheinstitutionsofstategovernance
i. Thisiswherethemajorcasesfocustheirattention
NewYorkv.UnitedStates(classnotes)
1. Congresstransferredtitleofwastefromprivateproducerofthewastetothestate
a. Whycan’twejusttransfertitletothestates?
b. Realissueis1)isthereanyreallyprinciplefordistinguishingcoercionfromencouraging
or2)isthereanindependentlackofpowerforCongresstotransferthetitle?
c. WhatdowegetfromPrintzthathelpsushere?
i. Doestheanti-commandeeringprincipleofNewYorkv.USextendtofederal
lawsdirectedatstateorlocalexecutiveofficials,asopposedtostate
legislatures?
1. Printzheldinvalidanactthatrequiredstateandlocallawenforcement
officerstoconductbackgroundchecksonprospectivehandgun
purchasers
2. Assuch,ideathatCongresscan’tdirectlyorderNewYorklegislatureor
officialstodosomething
ii. SeealsoinPrintztheinterestofprotectingstatebudgetsandconcernover
grantingCongresspowertodirectlytapintostatefunds
d. O’Connor’skeyideaforthetaketitleprovisionisthatCongressmaynottinkerwiththe
budgetsofstates
e. JusticeWhite’sdissent
i. Thisisactuallypro-Federalism–Congresshasaccededtothewishesofthe
Statesbypermittinglocaldecisionmakingratherthanimposingasolutionfrom
Washington
Printzv.UnitedStates(classnotes)
1. Doestheanti-commandeeringprincipleofNewYorkv.USextendtofederallawsdirectedat
stateorlocalexecutiveofficials,asopposedtostatelegislatures?
a. Printzheldinvalidanactthatrequiredstateandlocallawenforcementofficersto
conductbackgroundchecksonprospectivehandgunpurchasers
2. Courtalsoaddressesideathat“wearesimplyaskinglawenforcementtoapplythelaw”
a. Statecourtshavetoapplyfederallawsowhydon’tstatecopshavetoapplyfederal
law?
i. GovernmentcitedTestav.Kattstatingthatstatecourtscannotrefusetoapply
federallaw
ii. However,supremacyclausesaysthatjudgesineverystateareboundby
constitutionalandfederallaw,whichtrumpsstatelaw
b. TheCourt“heldinNewYorkthatCongresscannotcompeltheStatestoenactorenforce
afederalregulatoryprogram.TodayweholdthatCongresscannotcircumventthat
prohibitionbyconscriptingtheState’sofficersdirectly.”
TakeAway
1. Federalgovernmentcannottakeoverthemainlineinstrumentsofstatepowerbecausestates
havethepowertoengageintheirowndemocraticchoicesratherthandealwithmandatesfrom
onhigh
2. Thisdoesn’tmeanstatescanignorefederallawbutratherthatstatelegislaturescannotsimply
becommandeeredbythefederalgovernment
3. Multileveldemocraticautonomythroughstateandfederalgovernments
3/1/16
Day 14 Outline
Floyd Abrams Lecture
•
Introduction (This guy is a pretty big deal)
o Supreme court case litigation for constitutional arguments (1st amendment)
o Large Clients
§ NBC, CBS, New York Times, etc.
•
True Story
o Mr. Abrams went to India on a trip (had a classmate from India)
§ Visited important fortune teller in India
• Predicted he would go to DC and do something important
§ Got involved in Pentagon Papers case
• Vietnam War info hidden from public
o Collection of these papers were given to NYT by Daniel
Ellsberg
§ Wanted to end the war as he believed it to be illegal
§ NYT began publishing these papers
• Nixon administration did not really care as it did not make him
look bad
• Kissinger upset with the publishing and believed the pentagon
papers could undercut negotiations with China
o Persuaded Nixon to get upset over the papers and bring the
NYT to court over the publishing
§ Government took NYT to court
• NYT’s lawyers would not represent them in the case (white house
told lawyers not to represent NYT)
o Abrams got the call by chance because of what they had
confidently said in a journalists meeting about the potential
case
§ 15 day case starting with complaint through
supreme court ruling (6-3 win for NYT)
• Restraint on freedom of speech not met by
government
•
Comparing Pentagon Papers to Snowden
o Breadth of leak in Snowden way more than Pentagon Papers
§ Papers, data, etc
o Snowden had a bunch of incredibly “hot” evidence and revelations
§ Major revelation was the phone surveillance
• Probably would not have been published by media back during the
70’s
§ Amount of privacy violated was incredible (addresses, SSN)
Gave journalists the access and let them make the decision what
they wanted to publish
o He can claim he didn’t make the choice to release the
information
This has highlighted the differences and changes in the press today
• They are more adversarial and willing to publish high risk stories
o Cannot defend against espionage claim by claiming that the
release of the classified documents was a good thing for the
country
§ USA has way more freedoms than countries in
Europe, yet they have a whistleblower public
interest defense to defend against release of these
classified documents
•
§
•
Westboro Baptist and Freedom of Speech
o SC voted 8-1 that the protesting of soldiers funerals is free speech because the
protesting is in regards to US involvement overseas and the gay agenda
§ Would be “public policy” protests which is protected free speech
• Other countries do not protect hate speech (even if it is a position
on public policy like homosexual teaching in public schools)
§ USA law is extraordinarily speech protective
•
Animal Crush Films
o These are films/pictures again that would not be contrary to the constitution and
should be protected (8-1)
§ There is no rationale like “public policy” in this decision, but the SC is
careful in protecting first amendment rights, thus the depiction of animal
torture is not a crime
•
Extraordinary degree of disgusting speech/depictions that are protected by the federal
constitution
o This goes back to the founders wanting broad freedoms
•
Question 1: Presidential Candidates wanting to open libel laws
o It would not be possible as there are not federal libel laws
§ Trump does not like the lack of ability for public officials to sue the media
over certain statements made (from NYT v. Sullivan)
• The official has a high burden of proof to prove against the alleged
maker of the statement
§ Trump could be in jail for the discriminatory statements made via laws of
some other countries
•
Question 2: Where have attitudes moved in right direction/wrong direction?
o Good to see that people are more dubious of the government’s actions
§
•
However, because the government has cried wolf about punishing people
who post things too often, they have given the press the idea they can post
whatever they want without a chance of being punished
• Bad precedent to be setting
Question 3: Can Federal Government force public universities to restrict certain speech or
make threats against their federal funding?
o No, they cannot (1st amendment applies completely)
§ Just because they fund the school, cannot withhold funds if they do not
agree to limit certain types of hate/derogatory speech
Outline–Day15–March4,2016
Classdiscussion:
InconcludingthediscussionaboutPrintzv.UnitedStatesfromMonday,itwasmadeclearbythecourt
thattheFederalGovernmenthasseveraltools,includingtheuseofitsspendingpower,toinfluencethe
Statesaction,i.e.throughcashincentives.
Renovs.Condon–assignedforpreviousday.DiscussionincludedhowRenocontrastedtoNewYorkand
Printz.Here,thedatabasesoflicenseddriverinformationwasalucrativeproductforthestatestosellto
individualsandbusinesses,particularlyforpurposesofmarketing,and,therefore,theyareconsidered
articlesininterstatecommerce.Ininterestofprotectingindividualsfromstalking,Congresspassedthe
Driver'sPrivacyProtectionAct(DPPA),whichregulatedhowStateshandledtheirdata.Aunanimous
courtheldthatbysimplyregulatinghowastatehandlesarticlesofinterstatecommerce,butdoesnot
commandeerstateofficersinhowtheyregulatetheircitizens,thiscaseisdistinguishedfromNewYork
andPrintzand,therefore,constitutional.
Historicalcontextfor11thAmendment
Chisholmv.Georgia-CitizenofSouthCarolinasuesGeorgiaforunpaidwardebt
SupremeCourtlooksatConstitutionandseethatitsays“betweenStateandthecitizenofanother
State”and,therefore,jurisdictionextendstothiscaseandrulesforplaintiff
Inreaction,theStatesfreakoutandramthroughthe11thAmendmentfasterthananyother
amendmentinhistory
Therearetwooperationinterpretationsofthe11thAmendment:
1. OneamendedtheConstitution.Changed“betweenStateandthecitizenofanotherState”to
voidthatinterpretation
2. ClarificationoftheConstitution,thereforeChisholmwaswrongfullydecided.Nevergrantedthat
power.
The“ClarificationExplanation”bestexplainsthestateimmunitycasescovered.
PriorlegalideainEngland:sovereignimmunitywasthedivinerightofkings.Onecannotsuethe
sovereignintheirowncourts–youcannotbindasovereign.
Hansv.Louisiana–sovereignimmunityagainsttheirowncitizensdespitethelanguageofthe11th
Amendmentonlybarringnonresidentpersonsfilingsuitagainstastateinfederalcourt.
Congressmaynotabrogatestatesovereignimmunity(butexceptionsexist)
1. Statesarealmostalwaysimmunetosuitbyordinarycitizenswithouttheirconsent
2. Statesarenotimmunetosuitbyfedsorotherstates
3. Citiesandcounties=“politicalsubdivisions”=notimmune
Practicallitigating
1. Oneofthemostfrequentthingsyouseeinlaw,torts,civilrights,etc.wheneveryou’resuingthe
governmentistheissueofstatesovereignimmunity.
2. Exparteyoung:officialcapacitysuitforprospectiveinjunctiverelief–createdformalist
distinctionbetweenstateandstateofficersforinjunctiverelief–noretrospectivedamages,but
prospective injunctive relief, not damages
prospectivedamages
3. Individualcapacitydamagessuitsagainstofficials–lotsofimmunities,“qualifiedimmunities”
4. Statestypicallypassstatuesselectivelywaivingimmunity–createprocedurestosuethestates.
Proceduralpredicates.Therearealsocommonlawimmunities.Havetoshowthatthestatute
violatedwas“clearlyestablished”
Case:SeminoleTribeofFloridav.Florida
FactsandProceduralHistory:
TheSeminoleTribeofFloridabroughtsuitagainsttheStateofFloridaduetotheStateofFlorida’s
allegedfailuretonegotiateingoodfaithwiththetribetocreateacompactregulatingthetribe’s
gamblingindustry.ThislawsuitwasallowedaftertheCongresspassedtheIndianGamingRegulatoryAct
(IGRA),whichpermittedexactlythistypeoflawsuitforsaidreasons.Congressassertedtheirauthority
topasstheIGRAduetotheIndian(NativeAmerican)sectionoftheCommerceClause.(Outsideofthe
casebook)TheDistrictCourtdeclinedtodismissthiscase,buttheEleventhCircuitreversedbyholding
thattheEleventhAmendmentbarredthesuit.
Holding:
TheCourtexplicitlyoverturnedPennsylvaniav.UnionGasCo.(1989),whichheldthatStatesovereign
immunitycouldbeabrogatedbyCongressionallegislationpursuanttotheCommerceClause,and
thereforetheIGRAhadunconstitutionallyabrogatedstatesovereignauthority.
Rationale:
Writingforthemajority,ChiefJusticeRehnquistheldthatPennsylvaniav.Unionhashadeviscerated
Hansv.Louisiana(1890),whichheldthatacitizenofastatecannotsuethatstateinfederalcourt,but
couldinstatecourt.ThedecisioninSeminolewasclearthatitdidnotalsooverturnFitzpatrickv.Bitzer,
whichheldthatstatesovereignimmunitycouldbeabrogatedundercertainspecificprovisionsof
Section5oftheFourteenthAmendment,forthereasonthattheFourteenthAmendmentwaspassed
subsequenttotheratificationofbothConstitutionandtheEleventhAmendment.TheCourtinSeminole
heldthattheEleventhAmendmentrestrictedArticleIIItopreservestatesovereignimmunityandArticle
I,Section8(theCommerceClause)couldnotbeusedtocircumventsuchconstitutionallimitations.
Dissent:
JusticeSteveninaseparatedissentstatedthattheCourthadgreatlyrestrictedthefederalcourtfrom
hearingabroadrangeofdisputes,includingenvironmentallaws,bankruptcy,intellectualpropertylaw,
etc.Inaseparatedissent,Souter,beingjoinedbytheothermembersoftheminority,arguedthatthe
CongressiscomposedofrepresentativesfromtheseveralStatesservedasacheckonCongressional
overreachingwhenitcomestoabrogatingstatesovereignimmunity.
Classdiscussion:
Issue:Originalistviewthatthere’ssovereignimmunity,strengthenedby11thAmendment,exceptwhere
modifiedby14th.Rehnquistheldthata“backgroundprincipleembeddedinfederalism”ofsovereign
immunityexistsandthatitisoneofthemanythingsassumedbytheConstitution.
Problem:OnecouldstipulatealmostanythingisinherentinConstitutionifthecompletelackof
languagetothateffectisnobar.Thisjudicialtheorycouldleadtoadramaticexpansionofjudicial
power,oftenfoundduringtheLochnerera(pre-NewDeal)court.ThisjudicialtheoryallowstheCourtto
substituteCongress’legislativeauthority,whichisinherentlyundemocraticandnearlyimpossibleto
rectifygiventheextremedifficultyinpassingaconstitutionalamendment.
Case:Aldenv.Maine
FactsandProceduralHistory:
StateprobationofficersinMainesuedtheStateofMaineinfederalDistrictCourtseekingdamages
baseduponallegationsthattheStatehadviolatedafederallaw’s,theFairLaborStandardsAct(FLSA)’s,
overtimeregulations.
Holding:
CongressmaynotuseusedtheCommerceClausetoabrogateastate'ssovereignimmunitywithrespect
tofederallawsuitsbroughtforthintheState’sowncourts.
Rationale:
Themajority’sopinionwrittenbyJusticeKennedyfirstestablishedahistoricalcontextfortheirdecision.
WhilethestrictlanguageoftheEleventhAmendmentdidnotexplicitlyforbidfederalcourtshaving
jurisdictioninlawsuitsbetweennonresidentsofaStateandtheStateitselfdoesnotdirectlyrelateto
thefactsinAldenv.Maine,theCourtmustlooktocommonlawatthetimeoftheConstitution’s
ratification.ThemajoritystatedthattheprincipleofsovereignimmunitydatesbacktoEnglishlawfrom
whichserveasthefoundationfortheAmericanjudicialsystem.Also,allthirteenStatesatthetimeof
theConstitution’sratificationhaduniversallyadoptedthedoctrineofsovereignimmunity.Giventhat
theConstitutionrecognizedthedualsovereigntyofboththefederalandstategovernments,the
majorityholdsthatthedoctrineismaintainedattheStatelevelpost-ratification.
Kennedylaysouttheconsequencesofabrogatingstatesovereignimmunity,particularlyinsuits
involvingfinancialdamages.ByabrogatingtheStates’sovereignimmunityinlawsuitsagainsttheState
initsowncourts,thefederalgovernmentcouldeffectivelycommandeertheStategovernmental
machineryagainstitswill.Associatedwiththeselawsuitscomesthevariouscourtcostsassociatedwith
holdingtrialsaswellasthecostlyspecteroffinancialdamages.Combinedtheseoccurrenceswould
effectivelyresultinaState,throughitscourts,levyingtaxesagainstitstreasuryagainstthewillofthe
state–aresultthemajorityfindstobeabsurdandunjustaswellasunconstitutional.Themajoritydid
holdthatfederallawsincludingtheFLSAwerestillbindingupontheStates,thoughnotenforceable
throughprivatelawsuits.
Dissent:
JusticeSouter,inwritingfortheminority,firstlydisagreedwiththemajority’sdescriptionofsovereign
immunityanditsapplicabilitytothepresentcase.Firstly,theAmericancoloniesdidn’tenjoysovereign
immunity,asthatrightrestedsolelywiththeCrown.Also,itwasn’tenumeratedasoneofthe“natural
rights”oftheStates.TheFounders,theminoritystates,actuallyheldadiversityofopinionsonsovereign
immunitywithsomestatingabeliefthatitwasincongruouswiththeconceptofaRepublicorits
commonlawdefeasiblebystatute.Ultimately,theminorityfindsthemedievalconceptofaKing’s
sovereignimmunitytonotbeeasilytranslatabletothemodernrepublicanState.
SoutergoesontopointoutthatitisnotStateLawwhichcreatedtheFLSAand,therefore,itisillogical
fortheStatestohaveimmunityfromit.TheFLSAisanactofCongresspursuanttotheConstitution’s
CommerceClause,whichithasalreadybeenheldextendstoStateworkers.Incedingaportionofstate
sovereignimmunitytoCongressinregulatinginterstatecommercewhentheseveralStatesratifiedthe
Constitution,theStatesareboundtoupholdfederallegislationthatconstitutionallyextendstoits
employees.
ClassDiscussion:
KennedyinAlden:“powertocommandeertheentirepoliticalmachineryoftheStateagainstitswill.”
Decidingthiscasetheotherwaywouldaffectallfunctionsofthestate,includingtaxandspending
powers,ifthefederalcourtcouldforcetheStatestodipintotheirtreasuriesagainsttheirwill.
Therefore,fortheSupremeCourtthereexistsadutytoactwhenpreservingthepowerofthepeopleto
democraticcontrolascommandeeringfunctionsofthestateisinherentlyundemocratic.
Centralideainthemajority’sdecisionisthatstatesovereignimmunityisbasedin10thand11th
Amendmentjurisprudence,whichgoesbacktoMcCullochv.Maryland.Kennedycaresaboutthedignity
oftheStatesandfeelsthatitisnecessarytopreservetheirautonomy.Kennedyseesthatthatinanticommandeeringcases,NewYorkandPrintz,andseestheneedforautonomyinthestatesovereign
immunitycases,i.e.theautonomyofstatebudgets.
FederalMaritimeCommissionv.SouthCarolinaStatePortsAuthority
FactsandProceduralHistory:
TheSouthCarolinaStatePortsAuthority(SCSPA)regularlydeniedpermissiontoalineofcruiseships
whichhadgamblingaboardfromdockinginthestate’sports,citingestablishedstatepolicy.Thecruise
shipcompanyfiledacomplaintwiththeFederalMaritimeCommission,afederaladministrationagency,
allegingthattheSCSPAhasviolatedthefederalShippingAct.
Holding:
Statesovereignimmunityextendstofederaladministrativeagencies,therebybarringthemfrom
adjudicatingacomplaintbetweenprivatepartyandaState.
Rationale:
JusticeThomasdeliveredthemajorityopinionholdingthatstatesovereignimmunityextendedto
administrativeagencies,muchasitdoestoArticleIIIcourts.Implementingasimilarrationaleaswas
usedinSeminoleandAlden,themajorityheldthatthehistoryoftheUnitedStatesandthestructureof
theConstitutioninstilledthedoctrineofstatesovereignimmunitytosituationoutsideoftheliteral
languageoftheEleventhAmendment.Thomasbeginsbystatingthatadministrativeagencieswerea
foreignconcepttotheFounders,whichexplainstheiromissionfromthelanguageoftheConstitution
andtheEleventhAmendmentand,assuch,“theConstitutionwasnotintendedto‘rais[e]up’any
proceedingsagainsttheStatesthatwere‘anomalousandunheardofwhentheConstitutionwas
adopted.”Thomasproceededtopointoutthatfederaladministrativeproceedingsborestrong
resemblancetothoseinArticleIIIcourts.Inacknowledgmentofthisstrongresemblanceandthe
interestinpreservingstatesovereignimmunity,theCourtbarredfederaladministrativeagenciesfrom
adjudicatingcomplaintsbyprivatepartiesagainstanonconsentingState.Furthermore,theCourtwent
ontoindicatethatthefederalgovernmenthadseveralpossibleremediestosuchcomplaintsthatdid
notabrogatestatesovereignimmunity.
Dissent:
JusticeBreyer,inwritingfortheminority,statedthatthemajorityfailedtoacknowledgethedifferences
betweenthepresentcaseandtherestrictionsuponArticleIIIcourtswithrespecttostatesovereign
immunitythemajoritycites.Theminorityputsparticularemphasisonthe“independent”natureofthe
FederalMaritimeCommission,whichtheystatebelongstoneitherthelegislativenorjudicialbranches
ofthefederalgovernment.Instead,theFMCisanArticleII(ExecutiveBranch)activityand,therefore,
notsimilartoArticleIIIproceedings.TheminoritycontendstheCourt’srulinginFMCv.SCSPAshall
resultinlessagencyflexibility,amorebloatedfederalbureaucracy,lessfairness,andweaker
enforcementforfederallaw.
CentralVirginiaCommunityCollegev.Katz
FactsandProceduralHistory:
(Outsideofthecasebook)Katz,abankruptcytrusteeforaninsolventprivateparty,soughttorecover
propertytransfersmadetoCentralVirginiaCommunityCollege,anarmofthestateofVirginia.Virginia
resistedtherecoveryofsaidpropertiescitingthedoctrineofstatesovereignimmunity.
Holding:
InratifyingtheConstitution’sBankruptcyClause(ArticleISection8),theStates'waivedtheirsovereign
immunityinmattersofbankruptcy.
Rationale:
JusticeStevens,inwritingforthemajority,beganbylookingtothehistoricalcontextfortheratification
oftheConstitution.TheFramers,indraftingtheBankruptcyClauseintendedforthefederalgovernment
tohavethepowertoredresstheconstantproblemoftheStatesrefusingtorespectdebtordischarge
orders.Also,forhistoricalcontextthemajoritycitesthefactthattheFirstCongressintroducedandSixth
Congresspassedlegislationgrantingfederalcourtsthepowertoreleasedebtorsfromstateprison,
therebyabrogatingstatesovereignimmunity.Finally,themajorityreasonedthatthefederal
government’sauthorityinbankruptcyconcernscamedirectlyfromtheConstitutionandnotfromfederl
statute.
Dissent:
JusticeThomasinwritingfortheminoritystatedthatthedoctrineofstatesovereignimmunityis
absoluteinmattersofprivatepartiessuingaStateformonetarydamagesundertheConstitution.
Further,grantingtheBankruptcyClausetoabrogatestatesovereignauthoritywouldbeabsolutely
uniquecomparedtoeveryotherprovisionofArticleI.
ClassDiscussion:
A bit of marbury v madison seems to have slipped in here! Copy-pasted from my own model outline, no
less. What happened? Anyway, the case summaries are good, so I'm not going to grade down or anything
mean like that, but next time please look this over before turning in.
Classdiscussion
Webeganbyreviewingsomeofthebasics—whatawritofmandamusis(an
extraordinarywritcommandinganofficialtocarryoutaministerialduty),the
differencebetweenoriginalandappellatejurisdiction,aswellasthehistorysurrounding
theelectionof1800andthebackgroundofthecase.Webrieflylooked
atthecollectionofnon-constitutionalholdingsthatMarshallmade.
Thenwemovedtodiscussingtheshadyproceduralhistoryofthecase:Marshall
almostcertainlyshouldhaverecusedhimself—hesignedthecommission!His
brotherwassecretaryofstate!TheCourtprobablyalsoshouldhavesimplyruled
onthejurisdictionalquestionfirst,withoutalsotakingituponitselftomakea
bunchofstatementsaboutMarbury’srighttothecommission—iftheCourtwas
withoutjurisdiction,asheruled,thenithadnoauthoritytomakethosedecisions.
Thisisaverypoliticalcase—but,Gowderemphasized,thatdoesnotundercut
itsimportance—whilewecanacknowledgethattheCourtissometimesnakedly
2
political,therulesoflawitestablishesandtheConstitutionalprinciplesthathave
beendevelopedarestillworthyofseriousconsiderationand(usually)respect.
Wethendiscussedpotentialargumentsagainstthesubstantiveconstitutionalresult:
whileArticleIIIlistssomespecifickindsofcasesinwhichtheCourthasoriginal
jurisdiction,thatmightbea“floor”ratherthana“ceiling”—itmightmerely
forbidCongressfromtakingawaythosekindsofcases,butpermitCongressto
addmorekindsofcasestotheCourt’soriginaljurisdiction.
Thebasictextualargumentforthe“floornotceiling”positionisthatArticleIII
describesthefederal“judicialpower”asvestedintheSupremeCourtandsuch
inferiorcourtsasCongressmayestablish;italsogivesadefinitionofthecontents
ofthatpower,whichisbroaderthanthenarrowlistofthingsitassignestothe
Court’soriginaljurisdiction.There’salsoastructuralworry:whatifCongress
doesn’tcreatelowercourts?Doesthatmeanthere’sajudicialpowerwithno
courtsatalltohearit?
ThebasictextualargumentforthepositionthattheCourteventuallytookisthat
ArticleIIIdoesexplicitlyandspecificallygiveCongresspowertotinkerwiththe
Court’sappellatejurisdiction;thefactthatitdoesnotalsosayanythingspecific
abouttheoriginaljurisdictionimpliesthatCongressdoesnothavesuchpower.
Similarly,thefactthattheConstitutioncarvesoutoriginalandappellatejurisdiction
fortheCourtsuggeststhatitdoesn’thavecompletejurisdictionoverthe
wholejudicialpower.
Thisisakindofreasoninganalogoustotheoldmaximofstatutoryconstruction
knownasexpressiouniusestexclusioalterius:ifthelawsaysonethingspecifically,it
excludessimilarthingsthatwerenotlisted.TheCourtinvokesthatveryidea,
onpages174-5oftheopinion:
IfithadbeenintendedtoleaveitinthediscretionoftheLegislature
toapportionthejudicialpowerbetweentheSupremeandinferior
courtsaccordingtothewillofthatbody,itwouldcertainlyhave
beenuselesstohaveproceededfurtherthantohavedefinedthejudicial
powerandthetribunalsinwhichitshouldbevested.The
subsequentpartofthesectionismeresurplusage–isentirelywithout
meaning–ifsuchistobetheconstruction.IfCongressremains
atlibertytogivethiscourtappellatejurisdictionwheretheConstitution
hasdeclaredtheirjurisdictionshallbeoriginal,andoriginal
jurisdictionwheretheConstitutionhasdeclareditshallbeappellate,
thedistributionofjurisdictionmadeintheConstitution,isformwithout
substance.
3
Affirmativewordsareoften,intheiroperation,negativeofother
objectsthanthoseaffirmed,and,inthiscase,anegativeorexclusive
sensemustbegiventothemortheyhavenooperationatall.
[Notetostudents:inthismodeloutlinenote,I’mworkingfromtheunedited
opinion,notwhatwehaveinthecasebook,somyapologiesifthistextdoesn’t
showupinwhatyouread.Inyouroutlinesyou’renotobligatedtocapturemore
ofwhattheCourtsaidthanshowsupintheeditedversion.]
4
3/2/16
State Sovereign Immunity and the 11th Amendment
•
11thamendmentstatesthejudicialpoweroftheUSdoesn’textendtoanysuitagainstastate
broughtbycitizensofanotherstate
o Fleshedoutbyvariouscases:
§ InExparteYoungthecourtheldthatthefedcourtscouldissueaninjunction
againststateofficials(notthestateitself)whosoughttoenforcean
unconstitutionallaw
§ Hansv.Lousianaheldthatthe11thamendmentextendstosuitsagainstastate
bycitizensofthatsamestate
§ InEdelmanv.Fitzgerald,thecourtheldthatcongresscouldabrogatethestates
constitutionallysecuredimmunitywhenusingitsenforcementpowerin 5of
the14thamendment
§ SeminoleTribeofFloridav.Florida
• Facts:IndianGamingRegulatoryActrequiredstatestonegotiatein
goodfaithwithIndiantribesovergamblingactivities
o IGRAprovidedthatthetribescouldsuethestatesinfederal
courtforbreachofthisduty
• Holding:Congresscan’tabrogatethestatessovereignimmunitywhen
actingunderthecommercepower(withoutthestatesconsent)
• Thecourtfoundanunderlyingideaofsovereignimmunityinthe
backgroundoftheconstitution
• Asadefault,necessaryandproperstopsatsovereignimmunity
[exceptionsexist]
o Alawcan’tbejustifiedunderthenecessaryandproperclauseif
itviolatesthestates’sovereignimmunity
• Dissent(Stevens):ThemajoritydecisionpreventsCongressfrom
providingfederalforumsformanyactionsagainststates(bankruptcy,
environmentallaw,etc.)
§ Aldenv.Maine
• Holding:Congresscannotsubjectnonconsentingstatestosuitswithin
theirownstatecourts
• Thisisaviolationofsovereignimmunityascreatedintheconstitution
• Ifthefederalgov.allowsnoncitizenstosuethestate,thegovernment
hasjeopardizedthestate’spowerovertheirownbudget
§ FMCv.SCStatePortsAuthority
• Extendedstatesovereignimmunityforjudicialproceedingsto
adjudicationswithinfedadministrativeagencies
• Decidedtheframerswouldhavethoughtthestateswereimmunefrom
suchadjudications
• Dissent:agencieswillneedtorelyoninformalstaffinvestigations
o Thiswillresultinalargerbureaucracyandlesseffective
enforcement
3/2/16
•
•
•
•
•
o Thisunderminesthecourt’sintentions
§ CentralVACommunityCollegev.Katz
• Holding:statesovereignimmunitydoesn’tbarcongressfrom
subordinatingstateentitiestoothercreditorsinafedbankruptcy
proceeding
• Reasoning:Whenthestatesratifiedthebankruptcyclause,they
subordinatedtheirimmunityinproceedingsnecessarytoeffectuatethe
inremjurisdictionofbankruptcycourts
th
Note:the11 amendmentdoesn’tdecreasefederalpowersomuchasfederalremedies
o Itpreventscongressfromsubjectingstatestosuits,butcongresshasothermethodsof
powerenforcement
Hypo:Congresspassesanactthatpreventsstatediscriminationagainstfederallyapproved
interstatetransportersofnuclearwaste.Theactprovidesthatthevictimofaviolationoftheact
canbringanadministrativeactionagainsttheviolatingstate.IowadiscriminatesagainstNed.
o Doescongresshavethepowertoregulatethisactivity?
§ Yes,throughthecommercepower.
o ShouldTed’sadministrativeactionagainstIowagoforward?
• 11thamendmentsaysthatthejudicialpowerdoesn’textendtosuits
againstastatebycitizensofanotherstate
o suitsandadministrativeactionscanbetreatedasthesame
underthe11thamendmentasperFMCv.SCStatePorts
Authority(sono,itcan’tgoforward)
• WhatifNedisacitizenofIowa?
o Stillno(Hansv.Lousianasaysthatthe11thamendmentextends
tosuitsagainstastatebycitizensofthesamestate)
th
Historicaloriginsof11 amendment
o Chisholmv.Georgia
§ CitizenofSouthCarolinasuesGeorgiaforwardebt
§ Courtdecidedthatunderarticlethree,thecourt’spowerextendedtosuits
againstastatebycitizensofanotherstate
o Therewaspublicuproar,andthe11thamendmentrammedthrough
o Differentinterpretationsofhistory:
1. 11thamendmenttookawaypowergrantedtotheSCOTUSinarticlethree
2. Or,itsjustanexplanationofarticlethree(whichnevergrantedthepowerfor
citizensofonestatetosueanotherstate)[clarificationtheory]
Blackletterlaw:
o statesarenotimmunetosuitbyfedsorotherstates
o cities,counties(politicalsubdivisions)arenotimmune
Practicallitigating–howtogetaroundsovereignimmunity
o ExParteYoung:officialcapacitysuitforprospectiveinjunctiverelief
§ Nodamagesremedy
o Individualcapacitydamagessuitsagainstofficials
o Statestypicallypassstatutesselectivelywaivingimmunity
§ Example:forcertaintortsuits
3/2/16
•
Conclusion–we’venowaddressedtwowaysthatthestates’rightsareprotected
o Anti-commandeering
o SovereignImmunity
3/2/16,Day14
Section6:StateSovereignImmunityandtheEleventhAmendment:
Today’sclasswasbriefdiscussionsofmultiplecasesbutmainlycenteredaroundvarioustwists
onahypo.
Sovereignimmunity:anythingthatinvolvessuingthegovernmentinvolvessovereignimmunity.
Agovernmentcannotbesuedwithoutgivingitsconsent.
Openinghypo:Congresspassesalaw:the“RadioactiveTransitPassageActof2016,”forbidding
anypersonorentitywhooperatesanyroadwaythatisusedininterstatecommercefrom
discriminatingagainstfederallylicensednuclearwastecarriers,andauthorizingaprivateparty
tobringanadministrativeactionbeforetheinterstatecommercecommissiontoenforceitwith
bothdam-agesandinjunctiverelief.ThestateofIowaprohibitsthetransportofnuclearwaste
onitshigh-ways,andNed’sNukesandNailCleaning,afederallylicensednuclearwaste
transport,filessuitagainstthestatefordamagesandaninjunction.
Classdiscussion:
DoesCongresshavethepowertopassthisAct?Yes
Whereisjudicialpowerinthisareafound?AmendmentXI:
“TheJudicialpoweroftheUnitedStatesshallnotbeconstruedtoextendtoanysuitin
laworequity,commencedorprosecutedagainstoneoftheUnitedStatesbyCitizensof
anotherState,orbyCitizensorSubjectsofanyForeignState.”
Doessovereignimmunityextendtoadministrativeclaims?Yes
NedissuingstateofIowa.ButdoweknowwhereNedisacitizen?No
SupposeNedisacitizenofIowa,cansuitgoforward?No.Why?
Hansv.Louisiana:appliesEleventhAmendmenttocasesnotonlyinfederaldiversity
jurisdiction,butalsotocaseswithinthefederalquestionjurisdictionofthefederal
courts.
Alsoconsiderregardingthishypo:Congresshaspowertoregulateinterstatecommerce,astate
canwaivesovereignimmunity,theSupremacyClauseexists,andtheNecessaryandProper
ClauseauthorizesCongresstousemeansexpedienttoitsends.CanCongressjustabrogate
statesovereignimmunity?No.Why?
SeminoleTribeofFloridav.Florida:heldthatCongressactingundertheircommerce
powercannotabrogatesovereignimmunityandallowastatetobesuedwithoutconsent.The
Courtalsosaysthetypeofreliefsoughtisirrelevanttowhetherthesuitisbarredbythe
Eleventhamendment.
BUT—bigexceptiontoSeminolebecausetherearesituationswhenCongresshaspower
todirectlyregulatethestates:
Section1oftheFourteenthAmendmentgivesbasicfundamentalrightstostates,and
section5saysCongresshaspowertoenforceit.ItfollowsthatCongresshasthepower
todirectlyregulatethestates.CourtshaveinterpretedReconstructionAmendmentsto
giveCongressalotmorepowertoregulatestateswhenitcomestothingsliketheEqual
ProtectionAct. Clause
BUT,defaultrule:powerbehindNecessaryandProperClausestopsatstatesovereign
immunity
BacktoNedandthehypo:11thAmendmenthasprohibitedfederalcourtsfromhearingcases
broughtbyforeignerofanothercountryordifferentstate,thustextually,anIowacitizen
cannotsuethestateofNebraskainFederalCourt.
Whataboutinstatecourt?Stillno.Why?
Aldonv.Maine:heldthatbecausethestatesaresovereignentitiesandsovereign
immunitycomesfromthestructureoftheoriginalConstitutionitself,inorderto
maintainthesystemoffederalismintendedbytheFramers,Congressisprohibitedfrom
authorizingsuitsinstatecourtsinvolvingstateswithoutthestate’sconsent.
NotesPresentedinClass/Online:
StateSovereignImmunity:
Historicalorigins/WhytheEleventhAmendmentwasratified:
Chisholmv.Georgia:CitizensofSCsuesGAforwardebt.
SupremeCourtlooksatConstitutionandfindsjudicialpowerextendstoallcasesby
citizensofanotherstate.Art3,Sect.2:“Thejudicialpowershallextendtoallcases,in
lawandequity,arisingunderthisConstitution,thelawsoftheUnitedStates,and
treatiesmade,orwhichshallbemade,undertheirauthority;--toallcasesaffecting
ambassadors,otherpublicministersandconsuls;--toallcasesofadmiraltyandmaritime
jurisdiction;--tocontroversiestowhichtheUnitedStatesshallbeaparty;--to
controversiesbetweentwoormorestates;--betweenastateandcitizensofanother
state;--betweencitizensofdifferentstates;--betweencitizensofthesamestateclaiming
landsundergrantsofdifferentstates,andbetweenastate,orthecitizensthereof,and
foreignstates,citizensorsubjects.”
-SupremeCourtfindsithasjurisdictionandrulesinfavorofplaintiff.
-StatesgetangryandresultsinaswiftratificationoftheEleventhAmendment.
TwopossiblefundamentalinterpretationsofEleventhAmendment:NewLaworClarification
(1)NewLaw:
EleventhAmendmentwasactuallyachangeintheConstitution—Art.3abolishedparts
ofsovereignimmunityorneverexistedinfirstplace,soArt.3grantedfederalcourts
jurisdictionforsuitsagainststates,whichmadestatesoutraged,sogottogetherand
ratifiedEleventhAmendmenttotakecourtspoweraway.
Or(2):Wasitaclarification?Ifso,Chisholmwaswronglydecided.
Article3doesn’tactuallysaysuitsfiledbyanothercitizen,somaybeitauthorizessuits
bystatesagainstcitizensbutnottheotherwayaround.OrmightthinkArt.3never
grantedpowerandEleventhAmendmentjustsaysthatpowerneverexisted—cases
fromtodayarebestexplainedbythisproposition.
Ifthispowerneverexisted,whydoesn’tit?Whycan’tastatebesued?
ComesfromEngland:divinerightofkings/thecrowncannotbesued.Lawsareissued
fromthesovereign,thecrownisofsuchdignitythatcourtscannotbindthesovereign.
Soifthisideaisfromthecommonlaw,thatmakessenseinthecontextoftoday’scases.
Hansv.Louisiana:stateshavesovereignimmunityinfederalcourts
Aldonv.Maine:extendsimmunitytostatecourts
Seminole:HelpsusunderstandwhySeminoleiscontroversial.
Supposesovereignimmunityisacommonlawdoctrine,sincewhencanCongressnot
abrogatecommonlawdoctrines?TheSupremacyClausemeansCongresscantrump
archaicdoctrine.
CommonobjectiontoSeminole:Whycan’tCongressabolishstatesovereignimmunityand
createrightsofactionthatfallwithintheArt.3power?
BUT,caneasilygetaroundsovereignimmunity:
I wouldn't say EASILY, for there are still
immunities from damages as well as retrospective
using equity to tap into state treasury
BlackLetterLaw:
1)Statesimmunetosuitbyordinarycitizenswithouttheirconsentbasicallyanywhere.
2)Statesnotimmunetosuitbyfedsorotherstates.Sovereignimmunityonlyappliestosuitsby
normalcitizens/corporations
3)Citiesandcountiesareconsidered“politicalsubdivisions”andthusdonothavesovereign
immunityandcanbesued
Whatdoesthismeanforlawyers?
1)ExParteYoung:willusethisifyoueversuethegovernment.Sayscan’tsuethestatefor
prospctive
injunctivereliefbutcansuestateofficesforinjunctiverelief.Cansuestateforpassingalawthat
(Officials, not offices)
saysthepolicemustbeatpeoplewhenarresting,BUTcansuetheAttorneyGeneralofthe
state.
2)Cannotgetdamagesremedy,butifwantdamages,thereareindividualcapacitysuitsagainst
officialswhichmeanscouldsuepoliceofficer(usingaboveexample)fordamages.
3)Statestypicallypassstatutesselectivelywaivingimmunity.Statesestablishprocedural
provisionstosuethestate.Thestateconsentstosuitifproceduralpredicatesarefollowed.
ClassdiscussiondiggingdeeperintoSeminolecase:
WhatistherationaleideabehindtheSeminolecase?Bigquestionofjudicialpower.
Supposetherearebackgroundprinciples,suchasstatesovereignimmunity,embedded
inConstitution?Whogetstosaywhattheyare?Onceweopendoortoallowing
backgroundprinciplesinConstitution,dooropenstojudicialpowerhavingwaymore
Congresspower
ManyconstitutionallawscholarsthinkcourtranamokduringtheearlyNewDealperiodof
strikingeverythingdown—theworryisthatifyouletcourtcomeupwiththingsnotexpresslyin
Constitution,thatworkstorestrainelectedbranchesofGovernment,inessenceallowingCourt
tosubstitutetheirownpolicyjudgmentsforelectedofficials’judgment.
RepresentationalReinforcement:Theoreticalideadrivingconstitutionallaw.IdeathatSupreme
Courthasaparticularlyimportantopportunity/place/responsiblytoactinawaywhich
preservesthepowerofthepeopletodemocraticallycontroltheactionsoftheirgovernment.
We will see reprsentation-reinforcement again this
week.
HowcantheCourtprotectthecontrol?
1)prohibitCongressfromcommandeering
2)forbiddingtheauthorizationofsuitsagainstnonconsentingstates.
3/2/16
CLASS15
Readingpgs.179-186
Historyof11thAmendment
1. 1793–Chisholmv.Georgia
a. CitizenofSouthCarolinasuesGeorgiaaboutwardebtandcourtfinds
infavorofcitizen.Resultleadstouproaramongthestates.
b. 11thAmendmentisratifiedduetouproar
2. 1890–Hansv.Louisiana
a. Courtheldthe11thamendmentappliednotonlytocaseswithin
federaldiversityjurisdictionbutalsotocaseswithinthefederal
questionjurisdictionofthefederalcourts
b. 11thamendmentbarspeoplefromsamestatefromsuingtheirstatein
federalcourt
3. 1908–ExparteYoung
a. IMPORTANT–createdagiantholeinsovereignimmunity
b. Whileyoucantsuethestateforinjunctiverelief,youcansue
stateofficers
4. 1974–Edelmanv.Jordan
a. Courtruledthat11thamendmentpermittedlawsuitsforprospective
injunctivereliefagainststateofficers,althoughnotlawsuitsfor
retrospectivereliefviaajudgmentfordamages.
5. 1976–Fitzpatrickv.Bitzer
a. CourtheldthatCongresscouldabrogatethestate’s11thamendment
immunityandallowstatestobesueddirectlyforretrospective
damagespursuanttoitsenforcementpowerundersection5ofthe
14thamendment.
6. 1989–Pennsylvaniav.UnionGasCo.
a. CourtruledthatCongresscouldabrogatestate’ssovereignimmunity
whenactingundertheCommerceClause
7. 1996–SeminoleTribeofFloridav.Florida
a. OverruledPennsylvaniav.UnionGasCo.
b. Congresscannolongerabrogatestate’ssovereignimmunityunder
theCommerceClause
c. Inthemajorityopinion,ChiefJusticeRehnquistpointedto“the
backgroundprincipleofstatesovereigntyimmunityembodiedinthe
11thamendment”asreasoningforoverrulingUnionGas.
d. Thisreasoningiscontroversialbecauseitopensthedoortocourts
finding“backgroundprinciples”embeddedintheConstitution
whenevertheyplease
8. 1999–Aldenv.Maine
a. Courtextendedstate’ssovereignimmunityasshapedinSeminole
Tribetofederallawsuitsbroughtinstatecourts.
9. 1999-2001–Statesovereignimmunityisextendedtootherfederallaws
a. 1999–FloridaPrepaidPostsecondaryEducationExpenseBoardv.
CollegeSavingsBank–stateentitieslikeuniversitiesareimmunefrom
patentandtrademarkinfringementbroughtagainstthem
b. 2000–Kimelv.FloridaBoardofRegents–statesimmunefromsuits
underAgeDiscriminationinEmploymentActof1967
c. 2001–BoardofTrusteesofUniv.ofAlabamav.Garrett-states
immunefromsuitsunderTitleIofAmericanswithDisabilitiesAct
10. 2002–FederalMaritimeCommissionv.SouthCarolinaStatePortsAuthority
a. Courtextendedreachofstatesovereignimmunityfromjudicial
proceedingstoadjudicationswithinfederaladministrativeagencies.
ClassDiscussion
HYPO
Congresspassesalaw:the“RadioactiveTransitPassageActof2016,”forbiddingany
personorentitywhooperatesanyroadwaythatisusedininterstatecommerce
fromdiscriminatingagainstfederallylicensednuclearwastecarriers,and
authorizingaprivatepartytobringanadministrativeactionbeforetheinterstate
commercecommissiontoenforceitwithbothdam-agesandinjunctiverelief.The
stateofIowaprohibitsthetransportofnuclearwasteonitshigh-ways,andNeds
NukesandNailCleaning,afederallylicensednuclearwastetransport,filessuit
againstthestatefordamagesandaninjunction.
DoesCongresshavethepowertopasstheRadioactiveTransitPassageActof2016?
Yes,itisundercommercepower.
IfNed’sNukesisacitizenofIowa,canheproceedwiththissuit?
No,theholdingofHansv.Louisianaprohibitsthissuit.
Cancongressabrogatestatesovereignimmunity?Cantheytakeitaway?
No,becauseofSeminoleholding.Exception:thereconstructionamendments
authorizecongressdirectlytoregulatethestates.
Howtogetaroundsovereignimmunity-blackletterlaw
1. Statesimmunetosuitbyordinarycitizenswithouttheirconsentbasically
anywhere
2. Statesnotimmunetosuitbyfedsorotherstates
3. Politicalsubdivisionsdonotbenefitfromsovereignimmunity,youcansue
citiesinwhatevercourtyouwant
This is pretty much all good. I like how the outlines read together, each filling in bits the
others missed. (This was, obviously, the goal of the exercise---and I'm glad to see it is
working. If you are reading this comment, and have read the outlines, you're off to a good
start for studying...)