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Home » People » Joe Braunwarth » POSC 140 » State Sovereign Immunity

State Sovereign Immunity Exercise

POSC 140

To answer the following questions refer to the following article and any other research you care to undertake.  Three pages maximum, double-spaced and grammatically correct.

1. Why should we care about state sovereign immunity?

2. Relate this to your textbooks' discussion of Federalism.  Use citations.

3. Does this mean that states are "above the law"?  What might be the implications for police abuse?

4. State any other point you may have been interested in or can comment on about these readings or the course so far.


By David G. Savage

WASHINGTON, DC-The Supreme Court conservative majority on Wednesday (23 June, 1999) dramatically curbed the power of Congress, shielding the states from federal laws that regulate the workplace and protect patents and trademarks. Invoking the doctrine of "state sovereign immunity," the justices said that these laws cannot be enforced in private lawsuits brought against states. The four dissenters accused their colleagues of adopting a radical states' rights philosophy that had died with the Union's victory in the Civil War.

The high court handed down three decisions that also cast doubt on federal environmental laws and civil rights measures in cases in which state agencies are the violators. One of the rulings appears to leave 4.7 million of the nation's state employees with no way to enforce their rights to minimum wages and overtime pay. The state of Maine had refused to pay overtime wages to a group of parole officers, as required by federal law, and the court ruled that these workers cannot sue the state over the issue.

Another pair of rulings effectively strips inventors, publishers and software makers, among others, of the right to sue state universities and other state agencies over stolen patents or, probably, copyrights. The sweeping decisions likely will have an immediate effect on a number of patent and copyright disputes involving state universities, including a long-running patent lawsuit between Genentech Inc., the biotechnology firm based in San Francisco, and the University of California.

"Right now, there is no remedy" for someone who sues the University of California for stealing a patent, said P. Martin Simpson, Jr., a lawyer for the UC system in Oakland, California. In 1992, Congress passed laws to make clear that states could be sued for such violations, but the court struck down those laws Wednesday. Some legal experts said they were stunned by the court's action. "This is a radical change in American government," USC law professor Erwin Chemerinsky said. "It says the states can violate federal law with impunity and nowhere can they be sued for damages in a federal or state court. Imagine if a state lab dumps toxic waste into someone's backyard in violation of federal environmental laws. This says the homeowners cannot sue the states for their damages."  Clearly, the justices saw the cases decided Wednesday as raising a profound question.


Are the laws of the United States the "supreme law of the land," binding in all 50 states, as the Constitution (of 1787) says? Or do the states retain a "sovereignty" that predates the Constitution (of 1787) and lives on today? The court's five conservatives adopted the latter approach. The states have a "sovereign status" that makes them separate and independent from the national government, Justice Anthony M. Kennedy said. "The states' immunity from suit is a fundamental aspect of the sovereignty that the states enjoyed before the ratification of the Constitution (of the republic), and which they retain today." Kennedy did not point to any passage in the Constitution (of 1787) that says the states are sovereign. Instead, he said, this belief was understood and accepted in 1787, when the original charter was written and ratified. The "founders' silence is most instructive," he said, because it shows that the sovereign status of the states was assumed. 

For most of this century, Congress has not assumed that the states have such an independent status. National lawmakers have passed broad measures regulating many aspects of American life, including the workplace, the economy and the environment, and states are covered as well. For example, state employees are entitled to minimum wages and extra pay for overtime, just are those in the private sector. Until recently, these laws have gone mostly unchallenged. "Congress has vast power but not all power," Kennedy said, his voice rising a note. "We reject any contention that substantive federal law by its own force necessarily overrides the sovereign immunity of the states." His opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. 

The four liberal justices dissented. "The doctrine of sovereign immunity is more in the mind of King James I than of James Madison," said Justice Stephen G. Breyer. "When a state acts like a private business, it should be held accountable" under the same laws. Justice John Paul Stevens accused the conservatives of "setting loose a mindless dragon that chews gaping holes in the law." Citing an example from Los Angeles, Stevens noted that the decisions create an oddity in the law. "A public school such as UCLA can sue a private school such as USC for patent infringement, yet USC cannot sue UCLA for the same act," he wrote. 

The most powerful dissent came from Justice David H. Souter, the normally reserved and soft-spoken New Englander. His voice dripping with sarcasm, Souter said that the conservative justices had invented a notion that was not adopted in the Constitution (of 1787) and had expired when the Civil War ended. "The state is not the ultimate sovereign. The national government is," he said, looking across at Kennedy.  "The majority could not be more fundamentally mistaken." He added that the court has created "a very peculiar state of affairs" for many workers and private businesses. In the Genentech case, the biotech firm sued the University of California over products that grew out of research involving human growth hormones. UC lawyers had appealed the case to the Supreme Court, arguing that the state university should be immune from such suits. The case was put on hold until the outcome of the cases decided Wednesday, and UC lawyers now are expecting a one-line order dismissing Genentech's claim (Regent's of the University of California vs. Genentech, 98-731).

While the court ruled directly concerning federal patents and trademarks, lawyers in the publishing field expect and fear that the same principle will apply in the copyright area. If so, state universities could freely copy books, music, software and other protected works. "This is unbelievable. Under this decision, a state can infringe a patent or copyright and no court in the country can do anything about it," said Charles S. Sims, a New York lawyer for the Assn. of American Publishers and the Software and Information Industry Assn. "As a practical matter, I don't see a remedy," added David C. Todd, a Washington lawyer who represented a bank that was on the losing end of one of the rulings. "This means the states are beyond the reach of Congress. This is a very extreme approach."

In the fall, the justices will consider whether to exempt the states from some federal civil rights laws. When several state university professors and librarians sued Florida State University for age discrimination, a federal appeals court said that the university could not be sued under the Age Discrimination Act. The first case decided Wednesday, blocked parole officers from obtaining the overtime wages they believed they were owed. In another case, a private bank developed a popular tuition prepayment plan, that several states adopted. The bank sued for patent infringement and false advertising in violation of the trademark laws. In that case the Supreme Court decided that the bank cannot sue the state agency.

SOURCE: Excerpted from the 24 June, 1999, issue of the Los Angeles Times, Orange County Edition, from an article entitled, "Rulings Give States Broad Immunity Against Lawsuits." Reprinted in the public service of the national interest of the American people.

The Discrimination Issue
As the Supreme Court’s 1998-99 term came to a close, the media proclaimed that three of the High Court’s June decisions had ushered in a new era of “states’ rights.” Those decisions concerned arcane federal statutes, such as the Patent And Plant Variety Protection Clarification Act, and hinged on the Court’s interpretation of states’ “sovereign immunity” from suit. While at first blush these cases couldn’t seem farther from the typical domain of gay rights litigators, their holdings are cause for concern throughout the civil rights community. In the future, the cases may be used to limit enforcement of the Americans with Disabilities Act or the Employment Non-Discrimination Act, when it passes, against states who are violating clear federal non-discrimination rules.

The decisions, in Alden v. Maine, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, build on earlier decisions of the Rehnquist Court to reach an anomalus result: in many situations where a state government is violating a statute enacted by Congress, a private person or group will not be able to sue — despite federal law’s status under the Constitution as the “supreme law of the land” — in any court (state or federal) to secure money damages to remedy the state’s illegal conduct. In other words, even though a state may blatantly violate a federal law where Congress established that private citizens should be able to enforce the law by suing for money damages, there may be absolutely no court anywhere in the country that can entertain such a lawsuit. The private damages remedy that Congress intended is meaningless, thanks to the Court’s sweeping interpretation of states’ immunity from suit because they are sovereign entities.

The three recent decisions are noteworthy not only for their troubling bottom line, but also for the Supreme Court’s unmoored method of analysis. The Court found the rule it wanted in the Constitution’s complete silence, an extraordinary approach. It reasoned that the framers were silent because “the sovereign’s right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution.” In an even more extraordinary leap, the Court opined that we can all rely on “[t]he good faith of the States” to voluntarily comply with federal law, despite the major upheavals that America has repeatedly experienced when states have refused to bow to federal law.  

The Intellectual Property Issue 
The Supreme Court decision in the case of Florida Prepaid v. College Savings will likely have a significant negative affect on copyright owners' ability to bring copyright infringement suits against states and their instrumentalities. Without the right to sue a state or state instrumentality for copyright (or patent or trademark) infringement in Federal court, states and state officials are free to engage in widespread uncontrolled copying and use of the valuable intellectual property assets of others without fear of being held liable for infringement. This is a significant problem for copyright owners -- who are likely to suffer tremendous losses due to increased infringement by states as a result of this decision.


Last Updated: 11/16/2014
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