a.
The backdrop: Pennsylvania v. Union Gas
1.
Plurality opinion holds that Congress may abrogate 11th
Amendment immunity under its Interstate Commerce Clause
powers
2.
Stevens concurrence: State sovereign immunity is
merely matter of common law and therefore can be set aside
by Congress pursuant to any of its powers
3.
Scalia dissent: Congress may abrogate 11th Amendment
immunity under its 14th Amendment powers, but not under its
Article I powers
Rationale:
14th Amendment postdates 11th Amendment, but Article I
predates it
b.
Seminole Tribe issue #1: Does Congress have
power to abrogate 11th Amendment immunity pursuant to Indian
Commerce Clause?
1.
For 11th Amendment purposes, Indian Commerce Clause is
indistinguishable from Interstate Commerce Clause
2.
Union Gas is badly reasoned and unworkable, therefore
it is overruled
A.
Adopts Scalia dissent in Union Gas
3.
Reaffirmation of sovereign immunity interpretation of 11th
Amendment (p. 642)
4.
Therefore, plf's suit against State of Florida dismissed
c.
Seminole Tribe issue #2: Can plf maintain suit
against governor under Ex Parte Young?
1.
Analogy to Schweiker v. Chilicky: When Congress
creates a detailed remedial scheme, Court should not
recognize any additional remedies
2.
IGRA Section 2710(d)(7) sets forth cause of action against
State, with complex limitations on remedy; availability of
suit against governor under Ex Parte Young would
render Section 2710(d)(7) pointless
3.
Though Section 2710(d)(7) turns out to be unconstitutional,
Court cannot know whether Congress would have wanted Ex
Parte Young to be available in that event
d.
Stevens dissent:
1.
Revisionist history of Hans: Court never held
that sovereign immunity was codified into 11th Amendment,
but instead recognized immunity only as a matter of common
law
e.
Souter dissent:
1.
Embraces diversity theory of 11th Amendment (pp. 653-54)
2.
Agrees with Stevens' view of Hans
3.
Attacks Hans' conclusion that sovereign immunity
against federal question claims survived ratification of
Constitution
A.
States are not "sovereign" in federal courts
B.
Diversity cases were common law cases, so common law
sovereign immunity might apply; federal question cases are
not common law cases
4.
Even if sovereign immunity holding of Hans is not
overruled, it should not be frozen into the Constitution
5.
Questions majority's sincerity in asserting that "we
cannot know" whether Congress would have wanted Ex
Parte Young to be available in the event suits against
State became unavailable
f.
Central Virginia Community College v. Katz (2006):
Congress may subject states to suit in federal court pursuant
to Bankruptcy Clause of Art. I because states surrendered
their sovereign immunity with respect to bankruptcy
proceedings in the plan of the Convention
