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The interpretation of the Eleventh Amendment's purpose and structure in Hans v. Louisiana should be discarded, based on a clearer understanding of English and early American history related to this doctrine. Congress had properly discarded the holding in Hans, to which the majority now returns. The Indian Gaming Regulatory Act, passed by Congress pursuant to the Indian Commerce Clause, allows an Indian tribe to conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located.

The Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States to enforce legislation enacted pursuant to the Indian Commerce Clause. However, Congress may abrogate the States' sovereign immunity if it has "unequivocally expresse[d] its intent to abrogate the immunity" and has acted "pursuant to a valid exercise of power.

Was the Act in question passed pursuant to a constitutional provision granting Congress such power? This Court has found authority to abrogate under only two constitutional provisions: Fourteenth Amendment, see, e. The Union Gas plurality found that Congress' power to abrogate came from the States' cession of their sovereignty when they gave Congress plenary power to regulate commerce. Reconsidering that decision, none of the policies underlying stare decisis require this Court's continuing adherence to its holding. The decision has been of questionable precedential value, largely because a majority of the Court expressly disagreed with the plurality's rationale.

Moreover, the deeply fractured decision has created confusion among the lower courts that have sought to understand and apply it. The plurality's rationale also deviated sharply from this Court's established federalism jurisprudence and essentially eviscerated the Court's decision in Hans, since the plurality's conclusion-that Congress could under Article I expand the scope of the federal courts' Article III jurisdiction-contradicted the fundamental notion that Article III sets forth the exclusive catalog of permissible federal-court jurisdiction.

Thus, Union Gas was wrongly decided and is overruled. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. That doctrine allows a suit against a state official to go forward, notwithstanding the Eleventh Amendment's jurisdictional bar, where the suit seeks prospective injunctive relief in order to end a continuing federal-law violation.

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However, where, as here, Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an Ex parte Young action. The Act mandates only a modest set of sanctions against a State, culminating in the Secretary of the Interior prescribing gaming regulations where an agreement is not reached through negotiation or mediation.

In contrast, an Ex parte Young action would expose a state official to a federal court's full remedial powers, including, presumably, contempt sanctions. Rogow argued the cause for petitioner. With him on the briefs were Beverly A. Shapiro, Eugene Gressman, and John J. Solicitor General Days argued the cause for the United States as amicus curiae urging reversal. Glogau, Assistant Attorney General of Florida, argued the cause for respondents. With him on the brief was Robert A. Lawrence, and Kurt V. Levine, and Frank R. Lawrence; for the Spokane Tribe of Indians et al.

Wahoske; and for the Tohono O'Odham Nation et al. Briefs of amici curiae urging affirmance were filed for the State of California et al. The Indian Gaming Regulatory Act provides that an Indian tribe may conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. We further hold that the doctrine of Ex parte Young, U. Stovall of Kansas, Richard P. Howard of New Hampshire, Dennis C. Vacco of New York, Michael F.

Easley of North Carolina, Betty D. Amestoy of Vermont, James S. Richard Dauphinais, Arlinda F. Congress passed the Indian Gaming Regulatory Act in in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. The Act provides that class III gaming is lawful only where it is: Class II gaming is more extensively defined to include bingo, games similar to bingo, nonbanking card games not illegal under the laws of the State, and card games actually operated in particular States prior to the passage of the Act.

Banking card games, electronic games of chance, and slot machines are expressly excluded from the scope of class II gaming. The Act allows class II gaming where the State "permits such gaming for any purpose by any person, organization or entity," and the "governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman" of the National Indian Gaming Commission. Regulation of class II gaming contemplates a federal role, but places primary emphasis on tribal selfregulation.

Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact. Sections d 7 B ii - vii describe an elaborate remedial scheme designed to ensure the formation of a Tribal-State compact. If the district court concludes that the State has failed to negotiate in good faith toward the formation of a Tribal-State compact, then it "shall order the State and Indian Tribe to conclude such a compact within a day period.

If no compact has been concluded 60 days after the court's order, then "the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator chooses from between the two proposed compacts the one "which best comports with the terms of [the Act] and any other applicable Federal law and with the findings and order of the court," ibid. If the State consents to the proposed compact within 60 days of its submission by the mediator, then the proposed compact is "treated as a Tribal-State compact entered into under paragraph 3.

If, however, the State does not consent within that day period, then the Act provides that the mediator "shall notify the Secretary [of the Interior]" and that the Secretary "shall prescribe Invoking jurisdiction under 25 U. In determining in such an action whether a State has negotiated in good faith, the court-.

The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court. Petitioner's Complaint , 24, see App. Respondents moved to dismiss the complaint, arguing that the suit violated the State's sovereign immunity from suit in federal court. The District Court denied respondents' motion, F. The Court of Appeals for the Eleventh Circuit reversed the decision of the District Court, holding that the Eleventh Amendment barred petitioner's suit against respondents.

The court disagreed with the District Court, however, that the Indian. Although the District Court in that case had granted the defendants' motions to dismiss, the legal issues presented by the two appeals were virtually identical. See Poarch Band of Creek Indians v. Commerce Clause grants Congress the power to abrogate a State's Eleventh Amendment immunity from suit, and concluded therefore that it had no jurisdiction over petitioner's suit against Florida.

The court further held that Ex parte Young, U. Finding that it lacked subject-matter jurisdiction, the Eleventh Circuit remanded to the District Court with directions to dismiss petitioner's suit. Petitioner sought our review of the Eleventh Circuit's decision,5 and we granted certiorari, U. We answer the first question in the affirmative, the second in the negative, and we therefore affirm the Eleventh Circuit's dismissal of petitioner's suit. That petition is still pending. The Eleventh Circuit has stayed its review of that decision pending the disposition of this case.

Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition Native Village of Noatak, U.

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That presupposition, first observed over a century ago in Hans v. See also Puerto Rico Aqueduct and Sewer Authority, supra, at "The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity". For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States.

New Jersey, U. Department of Treasury of Ind. Terminal Railway of Ala. Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. See Blatchford, supra, at States by entering into the Constitution did not consent to suit by Indian tribes. Petitioner nevertheless contends that its suit is not barred by state sovereign immunity. First, it argues that Congress through the Act abrogated the States' sovereign immunity.

Alternatively, petitioner maintains that its suit against the Governor may go forward under Ex parte Young, supra. We consider each of those arguments in turn. Petitioner argues that Congress through the Act abrogated the States' immunity from suit. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: Congress' intent to abrogate the States' immunity from suit must be obvious from "a clear legislative statement. This rule arises from a recognition of the important role played by the Eleventh Amend-.

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Department of Public Health and Welfare of Mo. See Atascadero State Hospital v. In Atascadero, we held that "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. Rather, as we said in Dellmuth v. See also Welch v. Here, we agree with the parties, with the Eleventh Circuit in the decision below, 11 F. Section d 7 A i. South Dakota, 3 F. Marie Tribe of Chippewa Indians v. Section d 7 B ii II provides that if a suing tribe meets its burden of proof, then the "burden of proof shall be upon the State We already have found the clear statement rule satisfied, and that finding renders the preference for avoiding a constitutional question inapplicable.

Before we address that question here, however, we think it necessary first to define the scope of our inquiry. Petitioner suggests that one consideration weighing in favor of finding the power to abrogate here is that the Act authorizes only prospective injunctive relief rather than retroactive monetary relief.

But we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. We think it follows a fortiori from this proposition that the type of relief sought is irrelevant to whether Congress has power to abrogate States' immunity. The Eleventh Amendment does not exist solely in order to "preven[t] federal-court judgments that must be paid out of a State's treasury," Hess v.

Similarly, petitioner argues that the abrogation power is validly exercised here because the Act grants the States a power that they would not otherwise have, viz. It is true enough that the Act extends to the States a power withheld from them by the Constitution. Cabazon Band of Mission Indians, U. Nevertheless, we do not see how that consideration is relevant to the question whether Congress may abrogate state sovereign immunity.

The Eleventh Amendment immunity may not be lifted by Congress unilaterally deciding that it will be re-. Thus our inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution.

In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express. In arguing that Congress through the Act abrogated the States' sovereign immunity, petitioner does not challenge the Eleventh Circuit's conclusion that the Act was passed pursuant to neither the Fourteenth Amendment nor the Interstate Commerce Clause.

Instead, accepting the lower court's conclusion that the Act was passed pursuant to Congress' power under the Indian Commerce Clause, petitioner now asks us to consider whether that Clause grants Congress the power to abrogate the States' sovereign immunity. Petitioner begins with the plurality decision in Union Gas and contends that "[t]here is no principled basis for finding that congressional power under the Indian Commerce Clause is less than that conferred by the Interstate Commerce Clause. Noting that the Union Gas plurality found the power to abrogate from the "plenary" character of the grant of authority over interstate commerce, petitioner emphasizes that the Interstate Commerce Clause leaves the States with some power to regulate, see, e.

Oneida Indian Nation of N. Contending that the Indian Commerce Clause vests the Federal Government with "the duty of protect[ing]" the tribes from "local ill feeling" and "the people of the States," United States v. They note that we have recognized that "the Interstate Commerce and Indian Commerce Clauses have very differ-. New Mexico, U. Respondents contend that the Interstate Commerce Clause grants the power of abrogation only because Congress' authority to regulate interstate commerce would be "incomplete" without that "necessary" power.

The Indian Commerce Clause is distinguishable, respondents contend, because it gives Congress complete authority over the Indian tribes. Therefore, the abrogation power is not "necessary" to Congress' exercise of its power under the Indian Commerce Clause. Both parties make their arguments from the plurality decision in Union Gas, and we, too, begin there. We think it clear that Justice Brennan's opinion finds Congress' power to abrogate under the Interstate Commerce Clause from the States' cession of their sovereignty when they gave Congress plenary power to regulate interstate commerce.

See Union Gas, U. Respondents' focus elsewhere is misplaced. While the plurality decision states that Congress' power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress' authority over interstate commerce. Moreover, respondents' rationale would mean that where Congress has. See New York v. United States, U. This argument was not considered below by either the Eleventh Circuit or the District Court, and is not fairly within the question presented. Therefore we do not consider it here.

See this Court's Rule We read the plurality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abrogate most necessary. And in many situations, it is only money damages that will carry out Congress' legitimate objectives under the Commerce Clause". Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States.

The answer to that question is obvious. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union Gas, if the States' partial cession of authority over a particular area includes cession of the immunity from suit, then their virtually total cession of authority over a different area must also include cession of the immunity from suit. We agree with petitioner that the plurality opinion in Union Gas allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause.

Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abrogate the States' sovereign immunity. Instead, they contend that if we find the rationale of the Union Gas plurality to extend to the Indian Commerce Clause, then "Union Gas should be reconsidered and overruled.

Generally, the principle of stare decisis, and the interests that it serves, viz. Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases 'correction through legislative action is practically impossible. The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan's opinion received the support of only three other Justices.

Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality's rationale, id. Since it was issued, Union Gas has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision. Arte Publico Press, supra, at "Justice White's concurrence must be taken on its face to disavow" the plurality's theory ; 11 F. The plurality's rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in Hans.

It was well established in when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: As the dissent in Union Gas recognized, the plurality's conclusion-that Congress could under Article I expand the scope of the federal courts' jurisdiction under Article III-"contradict[ed] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction.

Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. Madison, 1 Cranch The plurality's citation of prior decisions for support was based upon what we believe to be a misreading of precedent. The plurality claimed support for its decision from a case holding the unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity, see id.

The plurality's extended reliance upon our decision in Fitzpatrick v. Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz. As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify "limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.

In the five years since it was decided, Union Gas has proved to be a solitary departure from established law. Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality.

The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality's rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III.

We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled. The dissent makes no effort to defend the decision in Union Gas, see post, at , but nonetheless would find congressional power to abrogate in this case. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the.

Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Superior Court of Cal. For over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment.

In Principality of Monaco v. Chief Justice Hughes wrote for a unanimous Court:. Thus Clause one specifically provides that the judicial Power shall extend 'to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a 'surrender of this immunity in the plan of the convention.

It is true that we have not had occasion previously to apply established Eleventh Amendment principles to the question whether Congress has the power to abrogate state sovereign immunity save in Union Gas. But consideration of that question must proceed with fidelity to this century-old doctrine.

The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans other than Union Gas that supports its view of state sovereign immunity, instead relying upon the now-discredited decision in Chisholm v.

Its undocumented and highly speculative extralegal explanation of. See post, at The dissent mischaracterizes the Hans opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental "'jurisprudence in all civilized nations. Hamilton sovereign immunity "is the general sense and the general practice of mankind". The dissent's proposition that the common law of England, where adopted by the States, was open to change by the Legislature is wholly unexceptionable and largely beside the point: Monaco, supra, at state sovereign immunity, like the requirement that there be a "justiciable" controversy, is a constitutionally grounded limit on federal jurisdiction.

It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment. Hans-with a much closer vantage point than the dissent-recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent's conclusion that the decision in Chisholm was "reasonable," post, at , certainly would have struck the Framers of the Eleventh Amendment as quite odd: That decision created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.

The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man-we long have recognized that blind reliance upon the text of the Eleventh Amendment is "'to strain the Constitution and the law to a construction never imagined or dreamed of. The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not. That same consideration causes the dissent's criticism of the views of Marshall, Madison, and Hamilton to ring hollow. The dissent cites statements made by those three influential Framers, the most natural reading of which would preclude all federal jurisdiction over an unconsenting State.

But the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later makes the dissent's demand for greater specificity about a then-dormant jurisdiction overly exacting. The dissent cites the following, for instance, as a statement made by Madison: But that statement, perhaps ambiguous when read in isolation, was preceded by the following: It is not in the power of individuals to call any state into court.

The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal courts. It appears to me that this can have no operation but this: Elliot, Debates on the Federal Constitution 2d ed. The absence of any discussion of that power is particularly striking in light of the fact that the Framers virtually always were very specific about the exception to state sovereign immunity arising from a State's consent to suit.

Hamilton "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual with-. In putting forward a new theory of state sovereign immunity, the dissent develops its own vision of the political system created by the Framers, concluding with the statement that "[t]he Framers' principal objectives in rejecting English theories of unitary sovereignty This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court.

And Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must be merely ideal" emphasis in the original ; 3 Elliot, supra, at J. Madison "It is not in the power of individuals to call any state into court The Federal Government can bring suit in federal court against a State, see, e. First, he contends that no distinction may be drawn between state sovereign immunity and the immunity enjoyed by state and federal officials.

But even assuming that the latter has no constitutional foundation, the distinction is clear: The Constitution specifically recognizes the States as sovereign entities, while government officials enjoy no such constitutional recognition. In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government.

Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. His criticism, however, ignores the fact that many of those cases arose in the context of a statute passed under the Fourteenth Amendment, where Congress' authority to abrogate is undisputed.

And a more fundamental flaw of the criticism is its failure to recognize that both the doctrine requiring avoidance of constitutional questions, and principles of federalism, require us always to apply the clear statement rule before we consider the constitutional question whether Congress has the power to abrogate. He notes that federal jurisdiction over those statutory schemes is exclusive, and therefore concludes that there is "no remedy" for state violations of those federal statutes. Post, at 78, n.

That conclusion is exaggerated both in its substance and in its significance. We have already seen that several avenues remain open for ensuring state compliance with federal law. Most notably, an individual may obtain injunctive relief under Ex parte Young in order to remedy a state officer's ongoing violation of federal law. Virginia State Bar, Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction.

Petitioner notes that since our decision in Ex parte Young, U. The situation presented here, however, is sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine. But the duty to negotiate imposed upon the State by that statutory provision does not stand alone. Although the copyright and bankruptcy laws have existed practically since our Nation's inception, and the antitrust laws have been in force for over a century, there is no established tradition in the lower federal courts of allowing enforcement of those federal statutes against the States.

Arte Publico Press, 59 F. Indeed, while the Court of Appeals in Chavez allowed the suit against the State to go forward, it expressly recognized that its holding was unprecedented. See Chavez, 59 F. Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary. Here, of course, the question is not whether a remedy should be created, but instead is whether the Eleventh Amendment bar should be lifted, as it was in Ex parte Young, in order to allow a suit against a state officer.

Nevertheless, we think that the same general principle applies: Therefore, where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young. For example, where the court finds that the State has failed to negotiate in good faith, the only remedy prescribed is an order directing the State and the Indian tribe to conclude a compact within 60 days.

And if the parties disregard the court's order and fail to conclude a compact within the day period, the only sanction is that each party then must submit a proposed compact to a mediator who selects the one which best embodies the terms of the Act. Finally, if the State fails to accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify the Secre-. By contrast with this quite modest set of sanctions, an action brought against a state official under Ex parte Young would expose that official to the full remedial powers of a federal court, including, presumably, contempt sanctions.

Nevertheless, the fact that Congress chose to impose upon the State a liability. Similarly the duty imposed by the Act-to "negotiate If that effort is to be made, it should be made by Congress, and not by the federal courts. We hold that Ex parte Young is inapplicable to petitioner's suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed for a lack of jurisdiction.

The Eleventh Amendment prohibits Congress from making the State of Florida capable of being sued in federal court. The Eleventh Circuit's dismissal of petitioner's suit is hereby affirmed. This case is about power-the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right.

In a series of cases beginning with Atascadero State Hospital v. Nevertheless, in a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power.

The importance of the majority's decision to overrule the Court's holding in Pennsylvania v. The majority's opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good-faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.

The conclusion that suits against States may not be brought in federal court is also incompatible with our cases concluding that state entities may be sued for antitrust violations. Virginia State Bar, U. As federal courts have exclusive jurisdiction over cases arising under these federal laws, the majority's conclusion that the Eleventh Amend-.

There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued.

Congress' authority in that regard is clear. Despite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority's affront to a coequal branch of our Government merits additional comment. For the purpose of deciding this case, I can readily assume that Justice Iredell's dissent in Chisholm v.

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)

As I shall explain, both of those opinions relied on an interpretation of an Act of Congress rather than a want of congressional power to authorize a suit against the State. In concluding that the federal courts could not entertain Chisholm's action against the State of Georgia, Justice Iredell relied on the text of the Judiciary Act of , not the State's assertion that Article III did not extend the judicial power to suits against unconsenting States.

He reasoned that the inclusion of this phrase constituted a command to the federal courts to construe their jurisdiction in light of the prevailing common law, a background legal regime that he believed incorporated the doctrine of sovereign immunity. Because Justice Iredell believed that the expansive text of Article III did not prevent Congress from imposing this common-law limitation on federal-court jurisdiction, he concluded that judges had no authority to entertain a suit against an unconsenting State. If it be not, we must wait till other remedies are provided by the same authority.

From this it is plain that the Legislature did not chuse to leave to our own. He did so because he recognized "that in England, certain judicial proceedings not inconsistent with the sovereignty, may take place against the Crown, but that an action of as sumpsit will not lie," and because he had "often found a great deal of confusion to arise from taking too large a view at once. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of Courts of Justice, which the AttorneyGeneral in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join.

For Justice Iredell then, it was enough to assume that Article III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State's immunity.

The precise holding in Chisholm is difficult to state because each of the Justices in the majority wrote his own opinion. They seem to have held, however, not that the Judiciary Act of precluded the defense of sovereign immunity, but that Article III of the Constitution itself required the Supreme Court to entertain original actions. In light of Justice Iredell's express statement that the only question before the Court was the propriety of an individual's action for assumpsit against a State, an action which, of course, results in a money judgment, see n. Moreover, even as to the limited question whether the Constitution permits actions for money judgments, Justice Iredell took pains to reserve ultimate judgment.

Thus, nothing in Justice Iredell's two sentences of dicta provides a basis for concluding that Congress lacks the power to authorize the suit for the nonmonetary relief at issue here. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense.

That, of course, is precisely the same error the Court commits today. In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm's holding could have been overturned by simply amending the Constitution to restore to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases.

In doing so, however, the Amend-. Georgia should be understood to be of a piece with the debate over judicial power famously joined in Martin v. Hunter's Lessee, 1 Wheat. There, too, the argument centered on whether Congress had the power to limit the seemingly expansive jurisdictional grant that Article III had conferred, not on whether Article III itself provided the relevant limitation. While Article III leaves it to Congress to establish the lower federal courts, and to make exceptions to the Supreme Court's appellate jurisdiction, it specifically mandates that there be a Supreme Court and that it shall be vested with original jurisdiction over those actions in which "a State shall be Party.

In light of that language, the Chisholm majority's conclusion that the Supreme Court had a constitutional obligation to take jurisdiction of all suits against States was not implausible. Justice Brennan has persuasively explained that the Eleventh Amendment's jurisdictional restriction is best understood to apply only to suits premised on diversity jurisdiction, see Atascadero State Hospital v. Union Gas, U. Beveridge, The Life of John Marshall discussing the consternation that the federal courts' creation of common-law felonies engendered.

Thus, there is good reason to believe that the reaction to Chisholm reflected the popular hostility to the Federal Judiciary more than any desire to restrain the National Legislature. S Of course, even if the Eleventh Amendment applies to federal-question cases brought by a citizen of another State, its express terms pose no bar to a federal court assuming jurisdiction in a federal-question case brought by an in-state plaintiff pursuant to Congress' express authorization.

Seminole Tribe Documentary 9AAFA1E7 BCAE 45D6 B51E 3C47525C9BC8

As that is precisely the posture of the suit before us, and as it was also precisely the posture of the suit at issue in Pennsylvania v. Union Gas, there is no need to decide here whether Congress would be barred from authorizing out-of-state plaintiffs to enforce federal rights against States in federal court. The question thus becomes whether the relatively modest jurisdictional bar that the Eleventh Amendment imposes should be understood to reveal that a more general jurisdictional bar implicitly inheres in Article III.

The language of Article III certainly gives no indication that such an implicit bar exists. That provision's text specifically provides for federal-court jurisdiction over all cases arising under federal law. Moreover, as I have explained, Justice Iredell's dissent argued that it was the Judiciary Act of , not Article III, that prevented the federal courts from entertaining Chisholm's diversity action against Georgia.

Therefore, Justice Iredell's analysis at least suggests that it was by no means a fixed view at the time of the founding that Article III prevented Congress from rendering States suable in federal court by their own citizens.


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In sum, little more than speculation justifies the conclusion that the Eleventh Amendment's express but partial limitation on the scope of Article III reveals that an implicit but more general one was already in place. The majority appears to acknowledge that one cannot deduce from either the text of Article III or the plain terms of. We have, however, construed the Amendment, despite its text, to apply only to unconsenting States.

In so doing, we of course left it for Congress to determine whether federal courts should entertain any claim against a State in federal court. A departure from the text to expand the class of plaintiffs to whom the Eleventh Amendment's bar applies would, however, limit Congress' authority to exercise its considered judgment as to the propriety of federal-court jurisdiction. The absence of a textual warrant for imposing such a broad limitation on the legislative branch counsels against this Court extratextually imposing one. Nevertheless, the majority asserts that precedent compels that same conclusion.

The majority relies first on our decision in Hans v. The majority suggests that by dismissing the suit, Hans effectively held that federal courts have no power to hear federal-question suits brought by same-state plaintiffs. Hans does not hold, however, that the Eleventh Amendment, or any other constitutional provision, precludes federal courts from entertaining actions brought by citizens against their own States in the face of contrary congressional direction.

As I have explained before, see Pennsylvania v. Because Hans did not announce a constitutionally mandated jurisdictional bar, one need not overrule Hans, or even question its reasoning, in order to conclude that Congress may direct the federal courts to reject sovereign immunity in those suits not mentioned by the Eleventh Amendment.

Instead, one need only follow it. Justice Bradley's somewhat cryptic opinion for the Court in Hans relied expressly on the reasoning of Justice Iredell's dissent in Chisholm, which, of course, was premised on the view that the doctrine of state sovereign immunity was a common-law rule that Congress had directed federal courts to respect, not a constitutional immunity that Congress was powerless to displace.

For that reason, Justice Bradley explained that the State's immunity from suit by one of its own. His analysis so clearly supports the position rejected by the majority today that it is worth quoting at length. The words are these: The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of , which was before the court in Chisholm v.

Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard.

As this passage demonstrates, Hans itself looked to see whether Congress had displaced the presumption that sovereign immunity obtains. Although the opinion did go to great lengths to establish the quite uncontroversial historical proposition that unconsenting States generally were not subject to suit, that entire discussion preceded the opinion's statutory analysis.

Thus, the opinion's thorough historical investigation served only to establish a presumption against jurisdiction that Congress must overcome, not an inviolable jurisdictional restriction that inheres in the Constitution itself. Indeed, the very fact that the Court characterized the doctrine of sovereign immunity as a "presumption" confirms its assumption that it could be displaced.

The Hans Court's inquiry into congressional intent would have been wholly inappropriate if it had believed that the doctrine of sovereign immunity was a constitutionally inviolable jurisdictional limitation. Thus, Hans provides no basis for the majority's conclusion that Congress is powerless to make States suable in cases not mentioned by the text of the Eleventh Amendment. Instead, Hans provides affirmative support for the view that Congress may create federal-court jurisdiction over private causes of action against unconsenting States brought by their own citizens.

It is true that the underlying jurisdictional statute involved in this case, 28 U.

However, unlike in Hans, in this case Congress has, by virtue of the Indian Gaming Regulatory Act, affirmatively manifested its intention to "invest its courts with" jurisdiction beyond the limits set forth in the general jurisdictional statute. By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of constituted the sole indication as.

Learn more about Amazon Prime. Florida sought to dismiss the action on the grounds that the lawsuit violated Florida's sovereign immunity. Under the Eleventh Amendment, all states are regarded as sovereign entities. Such sovereignty inherently implies that states may not be sued by parties without their consent, even if they are given authority to regulate those parties' activities through receipt of federal funds. Seminole Tribe of Florida v. Read more Read less. Enabled Similar books to Seminole Tribe of Florida v. Kindle Cloud Reader Read instantly in your browser. Sponsored products related to this item What's this?

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