Torres v. Texas Department of Public Safety, Brief of Separation of Powers Clinic at Antonin Scalia Law School as Amicus Curiae in Support of Respondent

Abstract

Over decades this Court has recognized that States entered the Union with their sovereignty intact subject only to narrow exceptions, including those claims for which the States necessarily “surrendered” their immunity in the “plan of the convention,” a standard derived from The Federalist No. 81 in which Alexander Hamilton assured States that upon joining the Union they would retain their immunity from private suits for debts.

Amicus takes no independent position on the plan of the convention test as the proper framework for identifying the contours of the States’ implied surrender of sovereign immunity or on the degree to which this Court’s precedents have accurately applied that test. Rather, this brief aims to identify and catalog the core principles from this Court’s precedents that the Court has used to resolve assertions like Petitioner’s that a particular claim falls within the plan of the convention standard. These principles underlie the Court’s decisions in this area and help shed light on the Court’s historical approach to resolving State sovereign immunity claims consistent with understandings from the time period of the drafting and ratification of the U.S. Constitution.

Keywords: Sovereign immunity, Separation of powers, Federalism

JEL Classification: K1, K19, K4, K00