Insufficiently Jurisdictional: The Case against Treating State Sovereign Immunity as an Article III Doctrine

Abstract

Even as the Supreme Court has expanded the scope of state sovereign immunity and clarified many of its applications, it has left one fundamental and long-standing puzzle unresolved. The Court has failed to decide whether state sovereign immunity is a question of subject matter jurisdiction - in other words, a specific limitation on the federal judiciary's Article III powers to hear cases and controversies - or whether it is better conceived as a nonjurisdictional right, defense, or aspect of residual state power. This Comment argues that the Supreme Court's muddled and contradictory pronouncements on the jurisdictional status of sovereign immunity have undermined the doctrine's coherence and perceived legitimacy. This Comment first discusses the doctrinal and practical problems with both the jurisdictional view and the Court's inconsistent adherence to it, and then considers how the Court might formulate a more consistent and coherent view of state sovereign immunity. This Comment concludes that because subject matter jurisdiction is a fundamentally inappropriate way to understand the doctrine of sovereign immunity as the Supreme Court has developed it, the Court should clarify current doctrine by squarely holding that sovereign immunity is not a question of subject matter jurisdiction.