The Supreme Court's Confusing State Sovereign Immunity Jurisprudence

Abstract

Beginning in 1996, the conservative majority of the Rehnquist Court created a broad sovereign immunity for states from suits for money damages in both federal and state courts. In these cases, the Court asserted that Congress could not abrogate this sovereign immunity through its Article I powers. In later cases, the Court analyzed possible circumstances when Congress could negate this immunity under §5 of the Fourteenth Amendment, producing inconsistent answers. Then, in 2006, the Court reversed its total rejection of Congress's ability to extinguish the states' sovereign immunity under Congress's Article I powers when it held that Congress could abrogate a state's sovereign immunity under the Bankruptcy Clause. This abrupt reversal brings into question the Court's entire sovereign immunity jurisprudence. This paper will reexamine the Court's state sovereign immunity jurisprudence in light of this latest development.

Keywords: constitutional law, federalism, sovereign immunity