The Irony of Immunity: The Eleventh Amendment, Irreparable Injury, and Section 1983

Abstract

Recent Supreme Court decisions construing the Eleventh and Fourteenth Amendments have raised important questions about the proper scope of Congress' regulatory and remedial powers. The main effect of the Court's decisions has been not to preclude litigation against the states altogether, but rather to force such claims into lawsuits against state officials either under the Ex parte Young fiction or under ? 1983. The article's basic premise is that there is a paradox at the heart of the Court's Eleventh Amendment jurisprudence: The very mechanism by which the Court seeks to enhance federalism and state autonomy may in fact channel litigation into a form that imposes greater constraints on state action. The article begins by identifying the distinction between Congress' Article I power to regulate state economic activity and its Section 5 power to abrogate state immunity from private lawsuits. A key consequence of the state's Eleventh Amendment immunity is that it wipes out the possibility of an adequate damages remedy for the intended beneficiaries of congressional regulation. Thus, the Eleventh Amendment creates the potential for an irreparable injury. The threat of an irreparable injury is precisely the circumstance that justifies injunctive relief under both Ex parte Young and ? 1983. That injunctive relief may turn out to be far broader and more intrusive than the damages that would have been available after the fact, both because it may involve more invasive judicial supervision of state entities and because some of the defenses that would be available in after-the-fact litigation, most notably qualified immunity, are unavailable in cases seeking prospective relief Thus, the Court may soon confront the question whether to eliminate this right-remedy gap by constricting the scope of the rights it recognizes.