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Monday, January 23, 2006

Isn't Justice Thomas Right?

As part of my Federal Courts class, I teach my students that, under the Rehnquist Court's federalism jurisprudence, nothing in Article I confers upon Congress the power to abrogate the sovereign immunity of the states. Instead, only acting pursuant to its powers under Section 5 of the Fourteenth Amendment, the logic goes, can Congress so force the states into court...

Not so fast, says the four moderate lefties and Justice O'Connor today in Central Virginia Community College v. Katz. As Justice Stevens writes for the 5-4 majority:

We acknowledge that statements in both the majority and the dissenting opinions in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), reflected an assumption that the holding in that case would apply to the Bankruptcy Clause. See also Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 105 (1989) (O’CONNOR, J., concurring). Careful study and reflection have convinced us, however, that that assumption was erroneous. For the reasons stated by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821), we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated. See id., at 399–400 (“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision”).

But it's not Seminole Tribe that held that Congress had no power under Article I to abrogate the sovereign immunity of the states; Seminole Tribe held only that Congress couldn't do so under the Indian Commerce Clause. It was a later case -- the Florida Prepaid case -- that held as much, and pretty explicitly at that: "Congress may not abrogate state sovereign immunity pursuant to its Article I powers." That's really "dicta" that "was not fully debated"?? [Granted, Florida Prepaid relied on Seminole Tribe, but dicta in the former doesn't necessarily equal dicta in the latter, as the Florida Prepaid decision makes fairly clear...]

Justice Thomas, writing for the other three dissenters (not hard to guess who they are), almost glides right past this point -- almost (see Part I of his dissent).

To be sure, I'm with the dissenters in Seminole Tribe, Florida Prepaid, Kimel, Garrett, Alden, South Carolina State Ports Authority, etc., etc., on the merits of the sovereign immunity argument. But on a very early read, this strikes me as really pushing it (and, potentially, really significant for claims of sovereign-immunity abrogration based on other Article I powers).

UPDATE: Over at SCOTUSBlog, Kevin Russell provides more in-depth analysis of the decision in Katz.

Posted by Steve Vladeck on January 23, 2006 at 05:09 PM in Constitutional thoughts, Current Affairs, Steve Vladeck, Teaching Law | Permalink


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As reported here (SCOTUS blog), here (PrawfsBlawg), here (Volokh), here (Crime & Federalism), and here (Althouse), the US Supreme Court today ruled, in a 5-4 decision (pdf) authored by Justice Stevens, that states are not immune from bankruptcy prefere... [Read More]

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One comment on Simon's remarks over at Althouse.

It seems highly tenuous to construe the Eleventh Amendment, explicitly against its own terms, so as to preclude suits against a state by their own citizens.

This is true but to be fair (and I'm with the Stevens Four on this issue) various opinions more clearly state that the 11A itself is not really at stake, but a broader "plan of the convention" ... in fact, there are some quotes explicitly stating the "fiction" of so-called "11A Jurisprudence" that is better said to be "state sovereign immunity jurisprudence in which the 11A is but one part." (my summary)

Posted by: Joe | Jan 25, 2006 7:46:19 PM

As I suggested at some length earlier at Althouse, I have some pretty substantial doubt about not just the particulars, but the entire enterprise of the Court's sovereign immunity jurisprudence, right down to the foundations; if anyone has anything to suggest in rejoinder to my comments at Althouse, I'd appreciate it: this is not an area I have studied in any real depth, but what I have seen troubles me greatly.

Posted by: Simon | Jan 23, 2006 11:25:21 PM

C'mon guys. This case isn't about reading precedents! To the contrary, it's about (1) the 4 Seminole Tribe dissenters, who oppose sovereign immunity and are willing to throw whatever cogs into its machinery they can, (2) joining with Justice O'Connor, who (a) loves case by case analysis and (b) no doubt thinks it absurd to let states could screw up bankruptcy by taking voidable preferences. So the ever-savvy Justice Stevens puts together this plan of convention figleaf. Holding? Dicta? Fully debated? Not when it comes to Hans and its progeny!

Posted by: Anon. | Jan 23, 2006 7:06:33 PM

I don't know whether it should count as "not fully debated," but the parties in Florida Prepaid capitulated on the issue of whether Congress's Article I powers could abrogate state sovereign immunity: "Seminole Tribe makes clear that Congress may not abrogate state sovereign immunity pursuant to its Article I powers; hence the Patent Remedy Act cannot be sustained under either the Commerce Clause or the Patent Clause. Ibid. The Federal Circuit recognized this, and College Savings and the United States do not contend otherwise."

Posted by: Bruce | Jan 23, 2006 6:35:51 PM

Mike -- That's exactly the problem; at its narrowest, Seminole Tribe only concerned the Indian Commerce Clause. So, too, Florida Prepaid and the Patents Clause. I understand the argument that the Bankruptcy Clause is different, which is how this will get narrowed, but it does seem to undermine the chronological approach to sovereign immunity that Seminole Tribe and Alden have been read for...

Not that I'm complaining... :-)

Posted by: Steve Vladeck | Jan 23, 2006 4:45:24 PM

Apropos almost nothing is this piece of trivia: When Rehnquist began his little 11A revolution, Justice Stevens noted that one pervsion of this ahistorical understanding of the Constitution would be that there would not be a uniform law of bankruptcy. Well, Stevens got his way in the bankruptcy case involving whether there can be jurisdiction over the res of property, and he got his way with this case. So, Stevens won in his battle to keep a uniform law of bankruptcy. More proof that Justice Stevens is da man.

Posted by: Mike | Jan 23, 2006 3:58:59 PM

Steve: That's a great point. One of the arguments that the Eleventh Amendment is so broad stems from chronology. Well, the 11A came after Art. I, and therefore the 11A trumps Art. I. But the majority's opinion here (if we set aside the fact that it's outcome-based) would open up every exercise of Art. I power (at least once!) to a historical argument that chronology nothwithstanding, the Court must look to each provision of Art. I before broadly stating that the 11A bars suit from federal remedies enacted under any given provision. I'm not sure if that makes sense.

Put differently: The Court (in theory) cannot, after Katz, categorically hold that Congress always lacks power under Art. I to abrogate a state's immunity from suit. The Court, to be consistent with Katz, would be required to analyze abrogation under each and every provision of Art. I.

Posted by: Mike | Jan 23, 2006 3:54:22 PM

Mike -- I agree with you completely, for that's always been my reading of Seminole Tribe. But even if it's not necessarily correct re: Seminole Tribe, it surely _is_ for Florida Prepaid, where the Court said "(1) No Article I abrogation. (2) The Patents Clause is in Article I. (3) Patents Clause Does Not Abrogate."

I have to go re-read Seminole Tribe, but it's explicit in Florida Prepaid, if nothing else...

Here's the bigger question -- doesn't this undermine the whole theory of those cases; if Article I powers can, in _some_ cases, warrant abrogating state sovereign immunity, then that seems to go a long way to undercutting the Tenth Amendment-based argument, if not the Eleventh Amendment-based one (so, Alden, if not Seminole Tribe)... Right?

Posted by: Steve Vladeck | Jan 23, 2006 3:48:41 PM

That's really "dicta" that "was not fully debated"??

I'm really glad you raised this point, as I was going to write a detailed post on it. I can be lazier in the comments section, though. I don't think it's dicta for two reasons. First, when I heard of the ruling but before I read Thomas' dissent, I went digging for the quote from Seminole Tribe - as I suspect a lot of other people did. That so many people are "plugged" into this language has to be proof of something. Second - and more seriously - isn't it more accurate to refer to the language in Seminole Tribe as part of the court's ratio decendi?

Namely, the analytical structure of Seminole Tribe would look as follows:
1. Congress lacks power under Art. I. to abrogate.
2. The ICC is an Art. I power.
3. Therefore, no abrogation under the ICC.

Or was this not the analytical structure of Seminole Tribe? If the opinion in Seminole Tribe used this syllogism (with the MP noted above), then the language quoted would have been part of the Court's rationale, and thus, not dicta.


Posted by: Mike | Jan 23, 2006 3:44:12 PM

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