← The hardest concepts in United States law
In one breath
A state cannot be sued by private persons in federal court without its consent, an immunity the Court reads from the Eleventh Amendment and the structure of the Constitution. It has well-known limits: officials may be sued to stop ongoing violations of federal law, but not for money from the state treasury for past wrongs.
The picture
The company safe and the cashier
A company keeps its money in a locked safe. A customer cannot sue the company for the safe’s contents without the company’s agreement: that is the company’s immunity. But the company’s cashier is a different person. If the cashier is breaking the law, say by refusing a customer something the law entitles them to, a court can order the cashier to stop. Such an order does not open the safe.
What a court cannot do is order the cashier to hand over money from the safe to compensate for what has already happened. That would be a claim against the company wearing a mask. The company may also open the door itself by consenting to be sued, and in limited circumstances a higher authority may direct it to answer to customers, by a law passed under certain particular powers.
Where the picture stops working
The story hides an oddity. In the real doctrine, when an official is sued, the law treats the official as acting without the state’s authority because the conduct is unlawful, a fiction announced in Ex parte Young. The picture also leaves out that cities and counties generally do not share a state’s immunity.
How it really works
- 1Identify the defendant: the state itself, an agency or arm of the state, a state official, or a local government. Immunity covers the state and its arms, and counties and cities generally do not have it.
- 2Identify the relief sought: money damages payable from the state treasury, or an order to stop violating federal law going forward.
- 3Check consent. A state may waive immunity by a clear declaration, or by choices such as voluntarily invoking federal jurisdiction in the case.
- 4Check abrogation. Congress can override state immunity only through certain powers, notably section 5 of the Fourteenth Amendment, and it must make its intent clear. The Court has held that Congress cannot do so under the Commerce Clause.
- 5Apply Ex parte Young. A suit against a state official for prospective relief against an ongoing violation of federal law may proceed, but retroactive money relief payable from the treasury is barred (Edelman v. Jordan).
Why people get it wrong
- Reading the Amendment literally. Its text mentions suits by citizens of another state, yet Hans v. Louisiana held that a state is also immune from suits by its own citizens.
- Thinking it protects states from all suits. It does not bar suits brought by the United States or by other states, and it extends to private suits in the state’s own courts (Alden v. Maine).
- Thinking it protects officials personally. Officials may be sued in their personal capacity, subject to other doctrines.
- Treating immunity from suit as immunity from the law. The state must still obey federal law; the question is who can enforce it, and how.
- Treating local governments like states. They are generally not covered, though whether a particular body is an arm of the state can be contested.
A worked example
The facts are invented
The invented state of Fenn runs a state university. A lecturer, Mr. Ash, is dismissed under a rule he says violates the federal Constitution. He sues in federal court. His claim against the State of Fenn for back pay is barred, since Fenn has not consented to it. His claim against the university’s president, in her official capacity, for an order to reinstate him and to stop applying the rule, can proceed under Ex parte Young, because it seeks prospective relief against an ongoing violation.
His claim against the president for lost wages, to be paid from the state treasury, is barred, as retroactive money relief of the kind Edelman v. Jordan excludes. A second defendant, a county school board that also employed him part-time, enjoys no Eleventh Amendment immunity, because it is a local government and not an arm of the state.
Try it
A private plaintiff asks a federal court (i) to order a state official to stop enforcing a state rule that violates federal law, and (ii) to award money from the state treasury for harm the rule caused in the past. The state has not consented. What is the best answer?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Hans v. Louisiana, 134 U.S. 1 (1890)
- Ex parte Young, 209 U.S. 123 (1908)
- Edelman v. Jordan, 415 U.S. 651 (1974)
- Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
- Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
- Alden v. Maine, 527 U.S. 706 (1999)
Where to go next
More hard concepts in United States law
- Standing, ripeness and mootness (Constitutional law)
- The levels of scrutiny in equal protection (Constitutional law)
- The dormant Commerce Clause (Constitutional law)
- Federal preemption (Constitutional law)
- The Fourth Amendment and the warrant exceptions (Criminal procedure)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. United States law is made in fifty states and in the federal system, and the rules differ between them. Each page states the usual formulation of the rule and names landmark decisions; your own state, circuit or course may use different wording. Check the primary sources before relying on any rule.