Cooperative Federalism and Constructive Waiver of State Sovereign Immunity

Abstract

In drafting cooperative federalism statutes, which rely on state government bodies to design and implement local regulation according to national standards,' Congress has generally provided for private suits against state regulators to ensure that the states properly carry out the regulatory tasks they undertake on Congress's behalf.2 The strengthening of the state sovereign immunity doctrine, a prominent aspect of the Rehnquist Court's federalism revival,3 has thrown several hurdles in the way of private litigation against states under these statutes. Congress may no longer directly abrogate states' sovereign immunity through statutes passed pursuant to its Article I powers; the Court sees this as necessary to avert the dignitary harm to the states of being hauled into court by private attorneys general.4 As a result, most suits that proceed against the states under cooperative federalism statutes do so under the Ex Parte Young fiction, which allows plaintiffs to sue state officials for prospective relief for ongoing violations of federal law.5 This route, however, is less effective than it once was. Additionally, Congress may still authorize private litigation against the states through a constructive waiver of their sovereign immunity-the subject of this Comment. While the Supreme Court has substantially narrowed the constructive waiver exception to prevent Congress from using it to make an end-run around the abrogation ban,' it has not, as some have urged, written it out of the law. Con-