United States Constitution

Second, the 11th Amendment has been interpreted to only apply to states as states. In other words, when an individual sues a state officer, agent, or employee, it may do so. This exception is so powerful, that even where a state officer appears to be acting on behalf of the state itself, it may still be sued. In Ex parte Young (1908), the Attorney General of Minnesota was sued for carrying out a railroad-related law passed by Minnesota. The law itself was unconstitutional. The Court held that since, under the Supremacy Clause, the Constitution overrides state laws, a state official acting in the name of an unconstitutional state law is not acting on behalf of a state at all. The law is a nullity. Therefore, the individual is acting on his own. Mr. Young, the Attorney General, was able to be sued in federal court.

Third, and perhaps most significantly, Congress may – in some instances – override the immunity established by the 11th Amendment. Most often, this has meant that Congress can act within its authority to legislate under the enforcement provision of the 14th Amendment, and abrogate state sovereign immunity in states relating to that enforcement. For example, in Fitzpatrick v. Bitzer (1976), the Court examined a Congressional act giving individuals the power to sue states in federal court over violations of Title VII of the Civil Rights Act (which prohibits discrimination). Title VII was passed pursuant to the Equal Protection Clause of the 14th Amendment. The 14th Amendment, the Court held, was specifically passed to constrain state authority – to prevent them from being able to discriminate and to give the federal government the power to act toward that goal. The Court ruled that the 14th Amendment overrode the 11th Amendment, and the lawsuit provision of Title VII was therefore constitutional.

Obviously, even though Congress may abrogate 11th Amendment immunity when acting to enforce the 14th Amendment, if Congress itself does not act within its own authority to legislate under the 14th Amendment, then the abrogation of immunity is also unconstitutional. In other words, if Congress passes a law which it asserts is to enforce the 14th Amendment – but happens to step beyond whatever enforcement power is given to Congress by that amendment, then despite whatever abrogation of immunity Congress may have included in the law, no such abrogation is considered to have taken place.

The standard under which Congress has the authority to legislate to enforce the 14th Amendment is known as the Congruence and Proportionality Test. For the purposes of the 11th Amendment, the meaning of that test is only tangential (see the 14th Amendment, Section 5). However, by way of example, in Nevada Department of Human Resources v. Hibbs (2003), the Supreme Court held that Congress passed the Congruence and Proportionality Test in enacting the Family Medical Leave Act – and therefore, the abrogation of 11th Amendment immunity included in a provision of the FMLA was also constitutional. However, in Board of Trustees of the University of Alabama v. Garret (2001), the Court held that Congress allowing state employees to sue employers in federal court over the Americans with Disabilities Act (ADA) did not meet the Congruence and Proportionality Test, and was therefore unconstitutional.

Beyond the 14th Amendment, though, it is unclear as to whether other provisions of the Constitution also allow Congress to abrogate sovereign immunity. For example, in Seminole Tribe of Florida v. Florida (1996), the Court held that Congress did not have the authority to abrogate state sovereign immunity under its Article I powers. This ruling was again followed in Alden v. Maine (1999). However, in Central Virginia Community College v. Katz (2006), the Court held that Congress abrogating state sovereign immunity under the Bankruptcy Clause, a provision of Article I was constitutional.

Still, Congressional abrogation of state sovereign immunity is most often evident in 14th Amendment cases.