State sovereign immunity, the spending power, anticommandeering, and the presumption against preemption

Black-letter propositions

1. 01

   The Eleventh Amendment and the structure of the Constitution give a State immunity from suits by private parties, and Congress cannot use its Article I powers, such as the Indian Commerce Clause, to abrogate that immunity in federal court.

2. 02

   A State's immunity from private suits extends to suits in its own courts, and Congress may not subject a State to private suits for damages in state court under its Article I powers.

3. 03

   A suit against a state official seeking prospective injunctive relief to end a continuing violation of federal law is not barred by the Eleventh Amendment, because an official who enforces an unconstitutional statute is stripped of his official character.

4. 04

   Congress may attach conditions on federal funds if the spending is for the general welfare, the conditions are stated unambiguously so states can choose knowingly, the conditions are related to a national concern, and the conditions do not require states to violate other constitutional provisions.

5. 05

   Congress crosses the line from encouragement to coercion when it threatens to withdraw a State's existing federal funds in order to force the State to accept a dramatic new program, so the threat to cut off all existing Medicaid funds was unconstitutional.

6. 06

   Congress may not commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program, and it may not order state executive officers to conduct background checks under a federal statute.

7. 07

   A federal statute that prohibits states from authorizing sports gambling violates the anticommandeering rule, because Congress may not issue direct orders to the governments of the States.

8. 08

   Congress may urge a State to adopt a federal policy by spending conditions or by offering states the choice of regulating according to federal standards or having state law preempted, which is not commandeering.

9. 09

   Courts begin with the assumption that the historic police powers of the States were not superseded by federal law unless that was the clear and manifest purpose of Congress.

10. 10

    The presumption against preemption applies even when the federal government has regulated an area for a long time, because it rests on respect for the States as independent sovereigns and the assumption that Congress does not cavalierly preempt state-law causes of action.

Use this attack sequence under time

Common wrong turns

• Ex parte Young allows prospective injunctive relief against a state official, but it does not allow damages against the State.
• Congress may not abrogate state immunity through the Indian Commerce Clause or other Article I powers.
• A funding condition must be unambiguous, related to the purpose of the funds, and not coercive.
• A federal law that regulates private conduct is not commandeering even if it burdens the States indirectly.

Worked example

A federal statute requires state law enforcement officers to run background checks on handgun purchasers until a national system is ready, and a county sheriff challenges the requirement.

Practice this topic

State sovereign immunity

Seminole Tribe v. Florida held that the Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States to enforce legislation enacted under the Indian Commerce Clause, because Congress may abrogate the States' immunity only under the Fourteenth Amendment or another power that the Constitution gives it for that purpose, and Ex parte Young may allow prospective injunctive relief against a state official to end a continuing violation of federal law.

Alden v. Maine held that States' immunity from suit is a fundamental aspect of the sovereignty they enjoyed before ratification and retain today, that Article I legislation cannot subject nonconsenting States to private suits for damages in their own courts, and Ex parte Young held that an injunction preventing a state officer from enforcing an unconstitutional statute is not an invasion of the State's immunity.

Spending and commandeering

South Dakota v. Dole upheld a federal law withholding a percentage of highway funds from States with a drinking age under 21, holding that Congress may attach conditions to federal funds if the spending is for the general welfare, the conditions are stated unambiguously, the conditions relate to a national concern, and the conditions are not independently barred by other constitutional provisions. NFIB v. Sebelius held that Congress crossed the line from encouragement to coercion by threatening to withhold States' existing Medicaid funds unless they accepted the new Medicaid expansion.

New York v. United States held that the monetary incentives and access incentives in the radioactive waste act were consistent with the Constitution but that the take-title provision was not, because Congress may not commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program. Printz v. United States held that a federal requirement that local law enforcement officers conduct background checks was unconstitutional, and Murphy v. NCAA held that a federal provision prohibiting state authorization of sports gambling violates the anticommandeering rule.

Preemption

Rice v. Santa Fe Elevator Corp. stated that where Congress legislated in a field the States have traditionally occupied, the assumption is that the historic police powers of the States were not superseded unless that was the clear and manifest purpose of Congress, which may be shown, for example, by a scheme of federal regulation so pervasive that it leaves no room for the States to supplement it.

Wyeth v. Levine held that federal law does not preempt a state-law failure-to-warn claim about a drug label, rejected the argument that the presumption against preemption does not apply because the federal government has long regulated drug labeling, and explained that the presumption rests on respect for the States as independent sovereigns and the assumption that Congress does not cavalierly preempt state-law causes of action.

Frequently asked questions