The Asymmetry of State Sovereign Immunity

Abstract

This article discusses whether a State has sovereign immunity from claims for just compensation. The article concludes that the States are indeed immune from just-compensation suits brought against them in federal court; States are not necessarily immune, however, from just-compensation suits brought against them in their own courts of general jurisdiction. Thus, the States' immunity in federal court is not symmetrical to the States' immunity in their own courts. This asymmetry, the article explains, is the result of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause obligates a State to provide just compensation every time the State takes private property for public use. A State may be able to meet that obligation through a non-judicial compensation scheme. If a State fails to establish an adequate non-judicial scheme for providing just compensation, the State's remedial obligation falls upon the State's courts. A State's courts thereby play an important role in enabling the State to meet its due process obligations. Unlike a State's own courts, the federal courts cannot enable a State to meet the State's due process obligations. Thus, the existence of a federal-court remedy does not excuse the State's failure to provide its own remedies. By the same token, the absence of a federal-court remedy for a State's failure to pay constitutionally required just compensation does not imply the absence of a remedy in the State's own courts. For this reason, the Supreme Court case law indicating that States are immune from just-compensation suits brought in federal court does not support recognizing a similar immunity in a State's own courts.