State Sovereign Immunity and Congress' Enforcement Power

Abstract

According to the Supreme Court's current doctrine, Congress generally may not create private causes of action against unconsenting States. It may do so, however, when it uses its power under Section 5 of the Fourteenth Amendment to enforce the amendment's substantive provisions. That principle, announced in Fitzpatrick v. Bitzer, has survived the reinvigoration of state sovereign immunity in recent cases like Seminole Tribe of Florida v. Florida and Alden v. Maine, and the Court has not considered whether Fitzpatrick is consistent with the approach taken in the more recent cases. This article addresses that question, giving attention to the understanding of the enforcement powers that prevailed during Reconstruction, the legal context in which those powers were created, and the structural reasoning underlying Seminole Tribe and Alden as it applies to the enforcement powers. Its principal conclusions are that the framers of the Fourteenth Amendment probably did not expect that it would give Congress power to create private causes of action against unconsenting States, and that, for that reason and others, if the current sovereign immunity cases are correct then Fitzpatrick was not.