Module 25: The Eleventh Amendment

How We Got Here: Debts, Sovereignty and the Ratification Debates

The Eleventh Amendment is a response to a single decision, and the decision makes sense only against the money problem of the 1780s. The Revolution was paid for on credit. The Confederation Congress owed soldiers, suppliers and foreign lenders. So did the states. Georgia had bought supplies for troops stationed at Savannah in 1777 and was still arguing over the bill when its creditor's estate went to court in 1792.¹

When the Constitution went to the states in 1787 and 1788, the part that frightened state debtors was the list of cases in Article III, section 2. The federal judicial power, the text says, extends to "Controversies between two or more States" and to controversies "between a State and Citizens of another State," and then to controversies between "a State, or the Citizens thereof, and foreign States, Citizens or Subjects." The same section says that "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."² A state sitting as plaintiff was easy to picture. A state sitting as defendant, with a creditor from another state on the other side, was not something most delegates had said out loud.

What the defenders of the Constitution said

Opponents of ratification read the clause as a trapdoor. Alexander Hamilton answered them in Federalist No. 81, published in 1788:

"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent."

Alexander Hamilton, The Federalist No. 81 (1788)

He went on to say that the exemption "is now enjoyed by the government of every state in the Union," and that unless there was "a surrender of this immunity in the plan of the convention, it will remain with the states."³ The phrase "plan of the convention" returns in the Supreme Court's opinions more than two centuries later, and we will meet it again below.

At the Virginia ratifying convention in June 1788, George Mason and Patrick Henry raised the same objection. James Madison replied that "It is not in the power of individuals to call any state into court," and that the clause would let a state sue a citizen in federal court if it wished to, nothing more. John Marshall, then a Richmond lawyer and delegate, said: "I hope that no gentleman will think that a state will be called at the bar of the federal court." He added, "It is not rational to suppose that the sovereign power should be dragged before a court."⁴

That is one side of the record. The other side is thinner but real. Edmund Randolph, a delegate in Philadelphia and a member of its Committee of Detail, granted at the same Virginia convention that states could be and ought to be subject to suit. James Wilson, also on the Committee of Detail, seemed to say something similar at the Pennsylvania convention. The Constitution Annotated notes that the framers who spoke to the question did not agree, and the text itself said nothing explicit either way.⁵ That silence is what made the case possible.

The Judiciary Act of 1789

The First Congress filled in the courts in the Judiciary Act of 1789. The Constitution Annotated says Chisholm v. Georgia was brought under that act's jurisdictional provision, and that four of the five Justices thought section 13 of the act gave the Supreme Court original jurisdiction over it.⁵ Nothing in the 1789 statute exempted a state from being the defendant, and within four years the Court's own docket showed what that meant.

The Text

The amendment is one sentence, and it is written as an instruction about how to read Article III.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI (proposed March 4, 1794; ratified February 7, 1795), National Archives transcription

The National Archives adds that "Article III, section 2, of the Constitution was modified by amendment 11."⁶ Three features of the wording drive most of the law that followed.

First, it speaks only of two kinds of plaintiffs: citizens of another state, and citizens or subjects of a foreign state. It says nothing about a state's own citizens, nothing about Indian tribes, nothing about the United States, and nothing about other states. Second, the verbs are "commenced or prosecuted." That covers a suit started after 1795 and a suit already running when the amendment took effect. Third, it modifies "the Judicial power of the United States." It is a limit on what federal courts may hear. On its face it does not mention state courts, Congress, or what a state may do voluntarily.

The Supreme Court has read the amendment far past those words, and it has said so itself. In Alden v. Maine (1999) Justice Kennedy wrote that the Court has "sometimes referred to the States' immunity from suit as 'Eleventh Amendment immunity,'" and that this is "convenient shorthand but something of a misnomer," because the immunity "derives not from the Eleventh Amendment but from the structure of the original Constitution itself."⁷ Whether that is correct is a live argument, and the lesson takes it up in a later section. For now it is enough to know that "Eleventh Amendment" in a modern opinion often means the broader doctrine of state sovereign immunity, and that the amendment's literal text is only part of it.

The amendment has not been amended or repealed. Nobody has proposed to change its text since 1795 in any serious way. Its meaning has moved a great deal.

Chisholm v. Georgia (1793)

The facts

Robert Farquhar, a South Carolina merchant, had sold goods to Georgia's commissioners in 1777 for Continental troops. He died in 1784 without being paid in full. His executor, Alexander Chisholm of Charleston, first went to the Georgia legislature, which refused the claim. He then sued in federal court. By the August 1792 term the action was in the Supreme Court itself, as an action of assumpsit, a claim for money owed.¹

The marshal served the papers on Georgia's governor, Edward Telfair, and its attorney general, Thomas Carnes. Georgia sent two lawyers, Jared Ingersoll and Alexander Dallas, to file a "remonstrance and protestation" against the Court's jurisdiction, and then, "in consequence of positive instructions, they declined taking any part in arguing the question." The state would not defend itself in a tribunal it said had no power over it. Edmund Randolph, who was both Attorney General of the United States and Chisholm's counsel, argued for jurisdiction alone.⁸

The opinions

The Court heard argument on February 5, 1793 and announced its decision on February 18. In that period the justices gave their opinions one at a time, in the English style, and did not join a single opinion for the Court.⁸ Four of five found jurisdiction.

Justice James Iredell was alone in dissent and wrote at length. He said the Judiciary Act did not by its own terms authorize a suit against a state, and that at common law a sovereign could not be sued by an individual without its consent. If Congress had meant to change that, it would have said so. He added that "nothing but express words, or an insurmountable implication ... would authorise the deduction of so high a power" as a compulsory suit against a state for money.⁸

Justice John Blair read the text. Justice William Cushing was blunter: when a citizen of South Carolina demands money from Georgia, "it is as really a controversy between a State and a citizen of another State, as if such State made a demand against such citizen. The case, then, seems clearly to fall within the letter of the Constitution." He asked what the Constitution's authors meant by listing "controversies between two or more States," where a state must be a defendant, and then listing the next clause with no exception.⁸

Justice James Wilson, who had helped write the Constitution, went furthest. He said the question came down to one "no less radical than this 'do the people of the United States form a Nation?'" His answer was yes, and he thought it followed that Georgia, in matters of the Union, was "NOT a sovereign State." The word "sovereign," he said, is "totally unknown" to the Constitution.⁸ Chief Justice John Jay agreed. The people, not the states, had made the Constitution, and its first words are "We the people of the United States, do ordain and establish this Constitution."⁸

The Court then made a procedural order. Chisholm was to file his declaration by the first day of March, and "unless the said State shall either in due form appear, or show cause to the contrary in this Court, by the first day of next Term, judgment by default shall be entered against the said State."⁸

The reaction

The decision set off alarm. The Constitution Annotated says it "provoked such anger in Georgia and such anxiety in other states" that Congress, at its first meeting afterward, proposed the Eleventh Amendment by an "overwhelming vote of both Houses," and the states ratified it with what Justice Frankfurter later called "vehement speed."⁹ The Court said much the same in 1890: the decision "created such a shock of surprise throughout the country" that the amendment was "almost unanimously proposed, and was in due course adopted by the legislatures of the states."¹⁰

Plenty of states had war debts. A few had bond issues. Every state treasurer could imagine a stack of claims from out-of-state creditors landing in a federal court sitting in a city he had never visited. The anger was practical.

Proposal, Ratification and Hollingsworth

Congress acts

The Third Congress took up the amendment in its first session. The Senate passed it on January 14, 1794, and the House on March 4, 1794. The Founders' Constitution, the University of Chicago's edition of the primary documents, gives those dates and cites the Annals of Congress, volume 4, pages 30 to 31 and 477 to 478.¹¹ The tallies usually given are 23 to 2 in the Senate and 81 to 9 in the House. This lesson found those counts in a secondary source and could not open the Annals pages to check them, so treat the numbers as reported rather than confirmed.¹²

The states ratify

The state legislatures acted over the next three years. The Founders' Constitution lists them: New York on March 27, 1794, Rhode Island March 31, Connecticut May 8, New Hampshire June 16, Massachusetts June 26, Vermont in the fall, Virginia November 18, Georgia November 29, Kentucky December 7, Maryland December 26, Delaware January 23, 1795, and North Carolina on February 7, 1795. North Carolina was the twelfth. There were fifteen states in the Union, so twelve was three-fourths.¹¹ Georgia, whose treasury had prompted the whole thing, ratified in the middle of the pack.

Official notice came late. President John Adams told Congress on January 8, 1798 that the amendment "may now be deemed to be a part of the Constitution," having been adopted by three-fourths of the states. In the meantime South Carolina had ratified and Tennessee had been admitted as the sixteenth state.¹¹ New Jersey, a state that had never ratified, did so in 2018, long after the amendment had been in force.¹²

Hollingsworth v. Virginia (1798)

The amendment's first test came from lawyers for plaintiffs whose suits against Virginia were already pending. In Hollingsworth v. Virginia they raised two objections. The amendment, they said, had never been presented to President Washington for approval, as Article I, section 7 requires of "every order, resolution, or vote" that both houses must pass. And its words, "commenced or prosecuted," should not reach suits already begun, since that would act as an ex post facto law.¹³

The Court rejected both. On the first point Justice Chase answered that the President "has nothing to do with the proposition, or adoption, of amendments to the Constitution." The practice has run that way ever since. On the second, the Court unanimously held that "the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state."¹³ The pending suits were gone. Chisholm's own docket entry died with them.

Two Readings of the Amendment

Scholars and judges have long split over what the amendment is for. Both camps agree that it removed federal jurisdiction over a certain kind of suit. They disagree about what that tells us about the Constitution before 1795, and about everything else.

The diversity reading

On this reading the Eleventh Amendment is narrow. Article III had given federal courts jurisdiction over suits where the parties were from different states, or where a state was the defendant and the plaintiff was a citizen of another state or a foreign state. The amendment strips the "party" jurisdiction in those cases, and nothing else. A suit by a citizen against his own state, or a suit that raises a federal question, was never covered. The Constitution Annotated notes that one strand of early reading did just this: the amendment removed jurisdiction that depended on the character of the parties, while suits arising under federal law could still reach a state.⁵

The strongest text for this reading is the text itself. Chief Justice Marshall observed in Cohens v. Virginia (1821) that the amendment "does not comprehend controversies between two or more states, or between a state and a foreign state," and that its motive was not "to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." The cause, he said, was creditors: "Those who were inhibited from commencing a suit against a state ... were persons who might probably be its creditors."⁵

The immunity reading

On the other reading, the amendment confirmed a principle that already existed. The old rule of English law was that the sovereign could not be sued in its own courts without its consent, and the states carried that rule with them. Chisholm had been an error, in this view, and Iredell was right. The amendment did not create immunity. It restored it, and the words of the amendment stand for a larger structural fact. Hamilton, Madison and Marshall in 1788 all spoke to this point.

The Court adopted that reading, at least in outline, in Hans v. Louisiana (1890) and has followed it with growing confidence since 1996. Dissenters in Seminole Tribe, Alden and Hyatt have answered with the text and with the same ratification debates. Justice Souter, dissenting in Seminole Tribe, called the rule of Hans a "century-old mistake."¹⁴

Both camps cite the same 1788 sources. Hamilton, Madison and Marshall do deny, in the passages quoted above, that the federal courts would hear suits against states for debts. But they were arguing against opponents who feared something specific. Their statements may not describe every theory of suit. And what does one say about Wilson and Randolph, who sat on the Committee of Detail that wrote the first full draft of the text? The honest answer is that the framers did not speak with one voice, and the Supreme Court has chosen among them. The ratification fight can support either reading. It cannot settle the matter.

Hans v. Louisiana and Immunity Beyond the Words

The case

Louisiana issued "consolidated bonds" under an act of January 24, 1874, and the same act proposed a state constitutional amendment that Hans said broke the bond contract. Hans, a Louisiana citizen, held coupons for interest that came due on January 1, 1880. In December 1884 he sued the state in the federal circuit court. The state's attorney general excepted to the suit on the ground that "Plaintiff cannot sue the state without its permission." The circuit court dismissed it.¹⁰

The Eleventh Amendment by its terms does not bar a suit by a Louisiana citizen against Louisiana. Hans said so, and he was right about the text. The question the Court had to answer was whether the text was the whole law.

Justice Bradley's opinion

On March 3, 1890 Justice Bradley wrote for the Court that the answer was no. He conceded that "It is true the amendment does so read, and, if there were no other reason or ground for abating his suit, it might be maintainable." But the result would be "anomalous": a state could be sued in federal court by its own citizens on a federal question, though not by a citizen of another state. That outcome was "no less startling and unexpected than was the original decision" in Chisholm. Bradley quoted Hamilton's Federalist No. 81 and the Madison and Marshall passages from the Virginia convention, and called the contrary view "an attempt to strain the constitution and the law to a construction never imagined or dreamed of."¹⁰

He added a sentence that has been quoted ever since: "The suability of a state, without its consent, was a thing unknown to the law."¹⁰ The Court left no room for doubt that a state may consent. It cited Chief Justice Taney in Beers v. Arkansas, who wrote that the sovereign "may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals," and may "withdraw its consent whenever it may suppose that justice to the public requires it."¹⁰

What Hans means now

Hans turned the Eleventh Amendment from a closed rule about two kinds of plaintiffs into the name of a general doctrine. Under it a state cannot be sued by anyone in federal court without its consent, whether the plaintiff is a foreign national, a citizen of another state or its own citizen. In Alden in 1999 the Court said the doctrine rests not on the amendment but on "the structure of the original Constitution," and that it protects states in their own courts as well.⁷

The decision has critics on the Court. Justice Souter's dissent in Seminole Tribe argued that the Hans Court "erroneously assumed" that a state could plead immunity against a noncitizen suing on a federal question, and that the later decisions built on the error.¹⁴ The majority has stayed with Hans in every case since, by a single vote more often than not.

Ex parte Young: Suing the Officer Instead

If the state itself cannot be sued, how does anyone stop a state from violating the Constitution? The Supreme Court answered in 1908, and the answer has become the working core of federal-court suits against state action. It is a fiction, and the Court knows it is.

The Minnesota rate case

In 1907 Minnesota's legislature passed a law fixing the maximum passenger fare on railroads at 2 cents a mile, down from 3 cents, and another act setting freight rates. Violations were a felony punishable by a fine of up to $5,000 or up to five years in prison for the railroad's officers and agents. Stockholders of several railroads sued in the federal court in Minnesota, naming the railroad commission, the shippers' representatives and the state's attorney general, Edward T. Young. The federal court enjoined enforcement of the acts. Young then went to state court and sought a writ of mandamus to enforce them anyway. The federal court held him in contempt, fined him $100, and ordered him to dismiss the state proceeding or be held in the marshal's custody. He petitioned the Supreme Court for a writ of habeas corpus.¹⁵

The question was whether a federal court had power to enjoin a state's attorney general at all. If the suit were really against Minnesota, the Eleventh Amendment barred it.

The holding

Justice Peckham, for the Court, said the injunction was proper. A state officer who enforces an unconstitutional law is not acting for the state, because the state can't authorize what the Constitution forbids:

"If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct."

Ex parte Young, 209 U.S. 123 (1908) (Peckham, J.)

Justice Harlan dissented.¹⁵ The reasoning is awkward on its face. An officer who enforces a state law acts under color of state law, and the Fourteenth Amendment reaches only state action. Yet he is "stripped" of his office when the Eleventh Amendment is raised. Opinions in this area call it "the Young fiction," and the Court has kept it for more than a century, since otherwise there would be little way to get federal review of state action at all.¹⁶

The limits

Prospective relief only. In Edelman v. Jordan (1974) the Court, 5 to 4, held that the Eleventh Amendment bars a federal court from ordering Illinois officials to pay retroactive welfare benefits wrongly withheld. An injunction to follow federal law in the future may have an "ancillary effect on the state treasury," the Court said, and that is "a permissible and often an inevitable consequence of the principle announced in Ex parte Young." But money for past violations paid from the treasury is damages against the state.¹⁷

Federal law only. In Pennhurst State School and Hospital v. Halderman (1984), 5 to 4, the Court held that Young does not allow a federal court to order state officials to follow state law. "It is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law."¹⁸

An ongoing violation. A suit about a past act that has no continuing effect is not a Young suit. The rule is set out in Verizon Maryland, Inc. v. Public Service Commission (2002), where the Court held that "a court need only conduct a 'straightforward inquiry' into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."¹⁹

Agencies as plaintiffs. In Virginia Office for Protection and Advocacy v. Stewart (decided April 19, 2011) the Court held that the doctrine allows one state agency to sue another state's officials for prospective relief. The Fourth Circuit had said no, because the plaintiff was also an arm of Virginia.²⁰

The hard edge: Idaho v. Coeur d'Alene Tribe

The most important Young decision for Idaho came in 1997. The Coeur d'Alene Tribe sued the State of Idaho, its agencies and a list of state officials in federal court, claiming ownership of the submerged lands and the bed of Lake Coeur d'Alene and the tributaries inside the original reservation boundaries. The relief sought was declaratory and injunctive and sounded like Young. Justice Kennedy, writing for a divided Court, said this suit was different. It was "the functional equivalent of a quiet title action which implicates special sovereignty interests," and the requested relief "would shift substantially all benefits of ownership and control of vast areas from the State to the Tribe."¹⁶

Kennedy's opinion was joined in full by only the Chief Justice. Justices O'Connor, Scalia and Thomas agreed that the suit could not go forward but rejected the idea that courts should weigh a state's "special sovereignty interests" case by case, so the judgment was 5 to 4. Justice Souter's dissent, joined by Justices Stevens, Ginsburg and Breyer, said the balancing test replaced "a straightforward inquiry into whether a complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective" with "a vague balancing test."¹⁶ Five years later the Court in Verizon adopted the "straightforward inquiry," citing Coeur d'Alene at pages 296 and 298 to 299.¹⁹

Later lawsuits by tribes against Idaho officials have to be read against Coeur d'Alene. The Court also held in Blatchford v. Native Village of Noatak (1991) that states keep their immunity against suits by Indian tribes, so the tribes had no separate path around the Eleventh Amendment.¹⁶

Congress and the Power to Abrogate

If states are immune from suit in federal court, can Congress remove the immunity by statute? The answer has swung three times. At every point the votes were close.

Section 5 of the Fourteenth Amendment

In Fitzpatrick v. Bitzer (1976) Connecticut state employees sued under Title VII of the Civil Rights Act, which Congress had extended to states as employers in 1972 under Section 5 of the Fourteenth Amendment. Justice Rehnquist wrote for the Court that Congress, acting under that section, could authorize money damages against a state. The Fourteenth Amendment came after the Eleventh and was meant to limit the states, so it must have been able to override their immunity. Justices Brennan and Stevens agreed with the judgment for different reasons.²¹

The Commerce Clause and its reversal

A plurality of the Court extended that reasoning to the Commerce Clause in 1989, in Pennsylvania v. Union Gas Co. Seven years later, in Seminole Tribe of Florida v. Florida (1996), the Court overruled it. The Indian Gaming Regulatory Act required states to negotiate in good faith with tribes over gaming compacts and let a tribe sue in federal court if the state refused. The Seminole Tribe sued Florida. By a vote of 5 to 4, Chief Justice Rehnquist wrote that "Union Gas was wrongly decided and that it should be, and now is, overruled," and gave the rule in one sentence: "Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States." The Eleventh Amendment, he said, "restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction." The Court also held that Ex parte Young could not be used to enforce that statute against the Florida governor, because Congress had prescribed "a detailed remedial scheme" for enforcing the duty against a state. Justice Souter dissented, joined by Justices Ginsburg and Breyer, and Justice Stevens wrote a separate dissent.¹⁴

Which statutes still reach the states

After Seminole, Congress can abrogate state immunity only under Section 5 of the Fourteenth Amendment or a handful of other grants. And Section 5 is limited by City of Boerne v. Flores (1997): the remedy must be "congruent and proportional" to a pattern of actual constitutional violations. (Module 28 takes up Boerne under the Fourteenth Amendment.) The cases since then are a catalog of near-misses and hits:

• College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (June 23, 1999), 5 to 4, Justice Scalia: the Trademark Remedy Clarification Act did not validly abrogate state immunity. The Court also expressly overruled Parden v. Terminal Railway, which had found that a state "constructively" waives immunity by engaging in a regulated activity. "Whatever may remain of our decision in Parden is expressly overruled."²²
• Kimel v. Florida Board of Regents (January 11, 2000), 5 to 4: the Age Discrimination in Employment Act did not abrogate state immunity, because age gets only rational-basis review and Congress had not found a pattern of unconstitutional age discrimination by states.²³
• Board of Trustees of the University of Alabama v. Garrett (February 21, 2001), 5 to 4: Title I of the Americans with Disabilities Act, which bars employment discrimination, could not support damages suits against states.²⁴
• Nevada Department of Human Resources v. Hibbs (May 27, 2003), 6 to 3, Chief Justice Rehnquist: the Family and Medical Leave Act's family-care leave provision was valid Section 5 legislation, because sex-based stereotypes about caregiving were a documented source of discrimination.²⁵
• Tennessee v. Lane (May 17, 2004), 5 to 4, Justice Stevens: Title II of the ADA validly abrogated immunity as applied to access to courts, which implicates fundamental rights.²⁶
• United States v. Georgia (January 10, 2006), unanimous, Justice Scalia: Title II validly abrogates immunity "insofar as" it creates a damages claim "for conduct that actually violates the Fourteenth Amendment," here alleged Eighth Amendment violations against a prisoner who used a wheelchair.²⁷
• Allen v. Cooper (March 23, 2020): a videographer, Frederick Allen, had filmed the recovery of the Queen Anne's Revenge, Blackbeard's ship, off the North Carolina coast, and North Carolina posted some of his videos and photos online. The Copyright Remedy Clarification Act of 1990 did not validly abrogate state immunity under either Article I or Section 5. Justice Kagan wrote the opinion. Justice Thomas concurred in part and in the judgment, and Justice Breyer, joined by Justice Ginsburg, concurred in the judgment, so all nine Justices agreed on the result.²⁸

Anyone looking at the list will see that state sovereign immunity cases are decided by thin majorities, and that the swing is usually one Justice.

The Plan of the Convention: Where the Court Finds Waiver Built In

The Court has also said that some federal powers are such that the states gave up their immunity from them when they ratified. The idea goes back to Hamilton's phrase, "a surrender of this immunity in the plan of the convention." Three decisions have used it.

In Central Virginia Community College v. Katz (January 23, 2006) the trustee for the bankrupt Wallace's Bookstores sued state colleges to recover alleged preferential transfers the company had made to them. The Court, 5 to 4, Justice Stevens writing, held that under the Bankruptcy Clause, Article I, section 8, clause 4, which gives Congress "the power to establish 'uniform Laws on the subject of Bankruptcies throughout the United States,'" states had ceded their immunity from that kind of proceeding "in the plan of the Convention, not by statute." Justice Thomas dissented, joined by the Chief Justice and Justices Scalia and Kennedy.²⁹

Fifteen years later, in PennEast Pipeline Co. v. New Jersey (June 29, 2021), the Court held 5 to 4 that the federal government may delegate its eminent domain power to a private pipeline company, which could then condemn land in which New Jersey held an interest, over the state's immunity objection. Chief Justice Roberts wrote the opinion. Justice Gorsuch dissented, joined by Justice Thomas, and Justice Barrett dissented, joined by Justices Thomas, Kagan and Gorsuch. ³⁰

In Torres v. Texas Department of Public Safety (June 29, 2022), 5 to 4, Justice Breyer's opinion held that "By ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the Armed Forces," so Congress may authorize damages suits against states that violate the Uniformed Services Employment and Reemployment Rights Act. Le Roy Torres, an Army Reserve soldier exposed to burn pits in Iraq, said his lung ailments left him unable to do his old job as a Texas state trooper. He asked the Texas Department of Public Safety to reemploy him in a different role, Texas refused, and he sued in state court. Justice Thomas dissented, with Justices Alito, Gorsuch and Barrett.³¹

The plan-of-the-convention doctrine is a much smaller list than the Commerce Clause or Section 5. The Court has not said which other powers might qualify. The war powers, the Bankruptcy Clause and federal eminent domain are in. The Court has not extended the idea to the Commerce Clause or the Indian Commerce Clause (Seminole), and in Allen and Florida Prepaid it rejected abrogation for copyright and trademark claims.

Waiver, Consent and Removal

A state may give up its immunity. It must do so clearly. Since College Savings Bank in 1999 the Court has rejected the idea that a state waives its immunity by taking part in a federally regulated activity, and has said the waiver must be "unequivocal." Congress cannot condition a state's participation in a federal program on its waiver of immunity in the way Parden once allowed.²²

Voluntary consent is a different matter. A state may agree to be sued by statute, and Idaho has done so in the Idaho Tort Claims Act, described below. But consent to suit in a state's own courts is not consent in federal court. The Court said so in Pennhurst: "a State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts."¹⁸

The cleanest example is removal. In Lapides v. Board of Regents of University System of Georgia (May 13, 2002) a Georgia professor sued the state university system in state court, in part under state law. The state removed the case to federal court and then argued it was immune from suit. A unanimous Court, with Justice Breyer writing, held that "A State waives its Eleventh Amendment immunity when it removes a case from state court to federal court." The Court limited the holding to state-law claims in which the state had already waived immunity in its own courts.³² A state that wants to keep its immunity must stay in its own court or file a motion there.

The practical reading for officials is straightforward. Immunity can be waived by statute, by conduct in litigation, and by a clear contractual statement. It is not waived by accepting federal money in the manner of Parden. A state official who files a notice of removal has made a decision with consequences.

State Courts, Other States' Courts and the Federal Government

Suits in a state's own courts: Alden v. Maine

In 1992 a group of Maine probation officers sued the state in federal court for overtime pay under the Fair Labor Standards Act. When Seminole made clear that Congress lacked power under Article I to abrogate immunity in federal court, they refiled in Maine state court. In Alden v. Maine (June 23, 1999), Justice Kennedy wrote for a 5-to-4 Court that Congress cannot force a state to hear such a suit in its own courts either. The states, he wrote, "retain 'a residuary and inviolable sovereignty,'" and "They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty." The immunity, he said, derives "not from the Eleventh Amendment but from the structure of the original Constitution itself." Justice Souter dissented, joined by Justices Stevens, Ginsburg and Breyer.⁷

The result is a structure in which a state employee with a federal wage claim against the state may have no damages remedy at all in any court, unless the state consents. The injunctive route through Ex parte Young and the individual-capacity claim against the officer remain.

Suits in other states' courts: Franchise Tax Board v. Hyatt

In Nevada v. Hall (1979) the Court had held that a state could be sued in another state's courts. Franchise Tax Board of California v. Hyatt reached the Court three times. In the third, decided May 13, 2019, Justice Thomas wrote for a 5-to-4 Court that "States retain their sovereign immunity from private suits brought in courts of other States," and overruled Hall. Hyatt, who said he had moved from California to Nevada in 1991, had sued California's tax agency in Nevada state court for torts committed during an audit. Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor and Kagan.³³

The decision was careful about one thing. Immunity belongs to "arms of the State" and not to every entity a state creates. That line was tested in the Court's most recent immunity opinion, Galette v. New Jersey Transit Corp., decided March 4, 2026. Two men injured by NJ Transit buses, one in Philadelphia and one in Manhattan, sued in the state courts of Pennsylvania and New York. The Pennsylvania Supreme Court held that NJ Transit was an arm of New Jersey and immune, and New York's Court of Appeals held the opposite. Justice Sotomayor, writing for a unanimous Court, held that "sovereign immunity is personal to the State and thus extends only to arms of the State itself, not to legally independent entities that the State creates." The Court looked at how New Jersey had structured the entity, whether the state would be liable for its debts, and how much control it exerted, and found NJ Transit was not an arm of the state.³⁴³⁵

The United States and other states as plaintiffs

The amendment's text bars only suits by citizens of other states and by foreigners. It does not bar suits by the United States against a state. In United States v. Texas (1892), a suit over the ownership of what the map of Texas called "Greer County," the Court held it had jurisdiction of a suit brought by the federal government against a state, because the Constitution extends the judicial power to controversies to which the United States is a party. In Alden the Court repeated that suits by the United States are different from suits by private parties, since they "require the exercise of political responsibility for each suit prosecuted against a State."⁷ States also sue each other under the Court's original jurisdiction.³⁶ Neither kind of suit is a "suit by Citizens." The federal government's ability to sue a state is among the reasons that the Eleventh Amendment does not mean states are free from federal law, only that private parties cannot always enforce it.

Who Counts as the State

Arms of the State and political subdivisions

The amendment protects "one of the United States." That means the state itself and entities that are really part of the state, and not counties, cities and school boards. In Lincoln County v. Luning (1890) the Court held that a county could be sued on its bonds in federal court, and the opinion said the Eleventh Amendment "limits the jurisdiction only as to suits against a state."³⁷ In Mt. Healthy City School District Board of Education v. Doyle (January 11, 1977) the Court held that an Ohio school board "is more like a county or city than it is like an arm of the State," and so did not share the state's immunity.³⁸

The test asks how the state has structured the entity, whether the state treasury would pay a judgment, and how much control the state exercises. Galette in 2026 stressed the structural questions: legal separateness, formal liability for debts, and control. Control by itself did not tip the scale.³⁴

Official-capacity and personal-capacity suits

The distinction between suing an officer for what he does in office and suing him for what he does personally runs through the cases. In Will v. Michigan Department of State Police (June 15, 1989) the Court held, 5 to 4, that neither a state nor a state official acting in his official capacity is a "person" under 42 U.S.C. § 1983, the federal civil-rights statute that allows suits for damages against those acting under color of state law.³⁹ In Hafer v. Melo (November 5, 1991) the Court held that state officers sued in their personal capacities for actions taken in an official role may be held liable for damages under the statute, and that the Eleventh Amendment is not a bar.⁴⁰

Lewis v. Clarke (April 25, 2017) applied the "real party in interest" rule to a different kind of sovereign. Brian and Michelle Lewis, in a crash with a limousine driven by a tribal casino employee, sued the driver in his individual capacity. The Court held that the driver, not the tribe, was the real party in interest, and that the tribe's immunity did not protect him.⁴¹ The rule is the same for state employees: if the judgment would be paid by the officer, he is a defendant in his own right.

The combination means that a person injured by unconstitutional state action can usually find a defendant. Claims for money from the treasury are much harder than claims for an order to stop.

Myths and Misreadings

Quick questions

Can I sue my own state in federal court for a violation of my constitutional rights? Not for damages from the treasury, without the state's consent. You can seek an injunction against the responsible officer under Ex parte Young, and you may be able to sue the officer personally under § 1983.

Can I sue a county? Yes. Counties are not arms of the state for Eleventh Amendment purposes. Idaho's tort claims act requires a written claim within 180 days.⁴²

Can the state waive? Yes, by statute, by removal to federal court of a case it was already a party to, or by a clear statement. Not by taking federal money, under College Savings Bank.

Landmark Cases

Each case was checked against the opinion text. Supporting cases appear above.

Reporter citations for the later cases were taken from the opinion pages and the Supreme Court's own slip opinions. This lesson did not independently check every U.S. Reports page number, so confirm them against the official reports before quoting a pin cite.

The Idaho Connection

Idaho in the Supreme Court: Coeur d'Alene

Idaho v. Coeur d'Alene Tribe of Idaho (argued October 16, 1996; decided June 23, 1997) began in federal district court, which dismissed the suit. The Ninth Circuit affirmed in part and reversed in part, finding that the Young doctrine allowed part of the claim to proceed, and the Supreme Court reversed in part. The details are in the section on Ex parte Young above. A reporter covering any tribal land or water dispute with the state should start there, and should check what later courts have done with its test.¹⁶

The Idaho Constitution

Idaho's own constitution has a remedy clause. Article I, section 18 says: "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."⁴³ That clause reaches Idaho's state courts and does not depend on the Eleventh Amendment. How far it limits the legislature's power to cap or bar claims against the state is a question for Idaho's own courts. This lesson did not research the Idaho Supreme Court's decisions on art. I, § 18 and immunity, and a reader who needs that answer should read them directly.

The Idaho Tort Claims Act

Idaho has consented to suit in state court for negligence and other wrongful acts. The act is Idaho Code §§ 6-901 to 6-929, and it reads like a deal. Section 6-903(1) says "every governmental entity is subject to liability for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment," where a private person would be liable under Idaho law.⁴⁴ Governmental entity means the state and its political subdivisions. The state is defined to include "any office, department, agency, authority, commission, board, institution, hospital, college, university or other instrumentality thereof."⁴⁵

The consent has holes. Section 6-904 lists claims that do not lie, including claims arising from discretionary functions, from "assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights," and from riots, unlawful assemblies and public demonstrations, as long as the employee was acting without malice or criminal intent.⁴⁶ Liability is capped. Section 6-926 limits the combined aggregate liability of a governmental entity and its employees for any one occurrence to $500,000 unless the entity has purchased more insurance, in which case the insurance limit controls, and it directs the court to reduce any excess.⁴⁷

There are notice rules with deadlines. A claim against the state or a state employee must be filed with the secretary of state within 180 days from the date the claim arose or reasonably should have been discovered, whichever is later (§ 6-905). A claim against a political subdivision must be filed with its clerk or secretary within the same 180 days (§ 6-906).⁴⁸⁴² Jurisdiction lies in the district court (§ 6-914), and attorney fees can be awarded only on clear and convincing evidence of bad faith, within the § 6-926 cap (§ 6-918A).⁴⁹⁵⁰

The act is a consent to suit in Idaho's own courts. It says nothing about federal court, and by the usual rule a state's consent to be sued in its own courts is not consent to suit in federal court. This lesson did not find an Idaho statute that waives Eleventh Amendment immunity generally.

What this means for federal claims against Idaho

A claim for damages from the Idaho treasury under a federal statute passed under Article I faces Seminole and Alden. A claim that Idaho officials are violating the federal Constitution or a federal statute right now, brought for an injunction, can proceed under Ex parte Young if it passes the Verizon inquiry and does not resemble the quiet-title suit in Coeur d'Alene. A claim against an Idaho county, city or school district is not barred by the Eleventh Amendment, though Idaho's notice and cap rules apply to state-law tort claims.

Where This Shows Up for Officials, Reporters and Citizens

The county clerk and the late claim

A resident injured when a county culvert collapses brings a written claim to the county clerk 200 days after the accident. Idaho Code § 6-906 gives 180 days from the date the claim arose or reasonably should have been discovered, whichever is later. The date the injury was or should have been discovered controls, and a missed deadline is a defense the county can raise. The clerk's job is to log the date the claim was received and pass it along under the county's claims procedure.⁴²

The state agency and the federal wage claim

State employees at an Idaho agency sue in federal court for overtime under the Fair Labor Standards Act. The agency's lawyers raise sovereign immunity. Under Alden and Seminole a suit for money damages cannot proceed in federal court or in Idaho's courts without Idaho's consent. The Court noted in Alden that the United States can bring its own suit. Anyone writing about such a case should say precisely which kind of relief is on the table and who could ask for it.⁷

The state official who removes a case

A state employee sues an Idaho university in state court on a mix of state and federal claims. The university's counsel removes the case to federal court and then moves to dismiss on immunity grounds. Under Lapides, removal waives immunity from the state-law claims for which the state had consented to suit in its own courts. Federal claims for damages may still be barred by sovereign immunity on a different footing. A reporter should ask which claims survive and why.³²

The reporter and the arm-of-the-state question

A reporter covering a lawsuit against a state-created authority, a hospital district or a public corporation should ask whether the entity is part of the state. After Galette (2026), the questions are how the state structured the entity in its enabling statute, whether the state is legally liable for its debts and judgments, and how much control the state exercises. An agency that calls itself "an instrumentality of the State" may still lack immunity. Read the enabling act and the entity's bond documents.³⁴

The citizen with a claim about a state program

A citizen who believes a state agency is violating a federal statute should find out whether the statute is enforceable by private suit at all. Many federal programs have no private right of action. Where there is one, the route is usually an injunction against the responsible officer. A claim for damages against the state itself, or for a past violation paid out of the treasury, is the weakest path.¹⁷

The state legislator drafting a waiver

A legislator drafting a statute that lets citizens sue an Idaho agency should say expressly whether the consent reaches federal court, since the Court requires a clear statement. Silence will be read as consent to suit in state court only.²²

Related Modules

Related lessons: Module 4, Article III: The Courts (the jurisdiction clause the amendment modified); Module 5, Federalism and the States; Module 6, Amending the Constitution (the Article V process and why Hollingsworth says no presidential signature is required); Module 10, The Civil War Amendments and Module 28, The Fourteenth Amendment (Section 5 and the abrogation power); Module 24, The Tenth Amendment (state sovereignty and anti-commandeering); Module 14, Article IV: The States and the Union.

Sources & Further Reading

Primary Sources

• National Archives, The Constitution: Amendments 11-27
• National Archives, The Constitution of the United States: A Transcription
• The Founders' Constitution, Amendment XI (University of Chicago Press)
• Alexander Hamilton, The Federalist No. 81 (Avalon Project)
• Constitution Annotated, Historical Background on the Eleventh Amendment (Cornell LII)
• Constitution Annotated, Eleventh Amendment: Early Doctrine (Cornell LII)

Supreme Court Opinions

• Chisholm v. Georgia, 2 U.S. 419 (1793)
• Hollingsworth v. Virginia, 3 U.S. 378 (1798)
• Cohens v. Virginia, 19 U.S. 264 (1821)
• Hans v. Louisiana, 134 U.S. 1 (1890)
• Lincoln County v. Luning, 133 U.S. 529 (1890)
• United States v. Texas, 143 U.S. 621 (1892)
• Ex parte Young, 209 U.S. 123 (1908)
• Edelman v. Jordan, 415 U.S. 651 (1974)
• Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
• Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977)
• Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984)
• Will v. Michigan Department of State Police, 491 U.S. 58 (1989)
• Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991)
• Hafer v. Melo, 502 U.S. 21 (1991)
• Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
• Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997)
• College Savings Bank v. Florida Prepaid, 527 U.S. 666 (1999)
• Alden v. Maine, 527 U.S. 706 (1999)
• Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)
• Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)
• Lapides v. Board of Regents, 535 U.S. 613 (2002)
• Verizon Maryland v. Public Service Commission, 535 U.S. 635 (2002)
• Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003)
• Tennessee v. Lane, 541 U.S. 509 (2004)
• United States v. Georgia, 546 U.S. 151 (2006)
• Central Virginia Community College v. Katz, 546 U.S. 356 (2006)
• Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247 (2011)
• Lewis v. Clarke, 581 U.S. 155 (2017)
• Franchise Tax Board of California v. Hyatt, 587 U.S. 230 (2019)
• Allen v. Cooper, 589 U.S. 248 (2020)
• PennEast Pipeline Co. v. New Jersey, 594 U.S. 482 (2021)
• Torres v. Texas Department of Public Safety, 597 U.S. 580 (2022)
• Galette v. New Jersey Transit Corp., No. 24-1021 (2026)

Idaho Law

• Idaho Const. art. I, § 18 (courts open; speedy remedy)
• Idaho Code § 6-902 (definitions)
• Idaho Code § 6-903 (liability of governmental entities)
• Idaho Code § 6-904 (exceptions to liability)
• Idaho Code § 6-905 (claims against the state)
• Idaho Code § 6-906 (claims against political subdivisions)
• Idaho Code § 6-914 (jurisdiction)
• Idaho Code § 6-918A (attorney fees)
• Idaho Code § 6-926 (limits of liability)

Secondary Sources and Further Reading

• Wikipedia, Eleventh Amendment to the United States Constitution (for the vote counts and ratification table)
• Wikipedia, Chisholm v. Georgia (for the Farquhar background)
• Faegre Drinker, Supreme Court Decides Galette v. New Jersey Transit Corp. (March 4, 2026)
• National Constitution Center, Interactive Constitution: Amendment XI

Related Training Modules

• Module 4: Article III: The Courts
• Module 5: Federalism and the States
• Module 6: Amending the Constitution
• Module 10: The Civil War Amendments
• Module 24: The Tenth Amendment
• Module 28: The Fourteenth Amendment
• Course index: The United States Constitution

Footnotes

1. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), https://www.law.cornell.edu/supremecourt/text/2/419 (the action "instituted in August Term, 1792," in assumpsit). Background on Robert Farquhar, the 1777 purchase of supplies for Continental troops at Savannah by Georgia commissioners, the estate's 1789 claim before the Georgia legislature and Alexander Chisholm's role as executor: "Chisholm v. Georgia," Wikipedia, https://en.wikipedia.org/wiki/Chisholm_v._Georgia (secondary source, opened October 2026; this lesson did not check the underlying biographical sources).
2. U.S. Const. art. III, § 2, cl. 1 and cl. 2, National Archives, The Constitution of the United States: A Transcription, https://www.archives.gov/founding-docs/constitution-transcript.
3. Alexander Hamilton, The Federalist No. 81 (1788), Avalon Project, Yale Law School, https://avalon.law.yale.edu/18th_century/fed81.asp. The sentence "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent" and the phrases about "the plan of the convention" appear in the text of the essay. The Court quoted the same passage in Hans v. Louisiana, 134 U.S. 1 (1890).
4. Hans v. Louisiana, 134 U.S. 1 (1890), https://www.law.cornell.edu/supremecourt/text/134/1, quoting Madison and Marshall at the Virginia ratifying convention, 3 Elliot's Debates 533 and 555, and describing the objections of George Mason and Patrick Henry. This lesson relied on the Court's quotation and did not open Elliot's Debates directly.
5. Constitution Annotated, Eleventh Amendment: Early Doctrine (Cornell LII edition), https://law.cornell.edu/constitution-conan/amendment-11/eleventh-amendment-early-doctrine. Source for the statement that Madison and Marshall denied states could be made party defendants (3 Elliot 533, 555 to 56) while Randolph (id. at 573) granted that they could and should be subject to suit, for the account of James Wilson in Pennsylvania, for the treatment of Chisholm as brought under section 13 of the Judiciary Act of 1789, and for Marshall's opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), including the passage on the amendment's motive.
6. National Archives, The Constitution: Amendments 11-27, https://www.archives.gov/founding-docs/amendments-11-27. Gives the text of Amendment XI, the dates "Passed by Congress March 4, 1794. Ratified February 7, 1795," and the note that "Article III, section 2, of the Constitution was modified by amendment 11."
7. Alden v. Maine, 527 U.S. 706 (argued March 31, decided June 23, 1999) (Kennedy, J., for the Court, joined by Rehnquist, C.J., and O'Connor, Scalia and Thomas, JJ.; Souter, J., dissenting, joined by Stevens, Ginsburg and Breyer, JJ.), https://www.law.cornell.edu/supremecourt/text/527/706. Quotations on "residuary and inviolable sovereignty," on immunity deriving "not from the Eleventh Amendment but from the structure of the original Constitution itself," and on suits by the United States.
8. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), https://www.law.cornell.edu/supremecourt/text/2/419. The page gives the return of service on Governor Telfair and Attorney General Carnes (the transcription prints the governor's name as "Telsair"), the motion by Attorney General Randolph, the remonstrance by Ingersoll and Dallas, the opinions of Iredell, Blair, Wilson, Cushing and Jay and the closing order of the Court. The February 5 to 18, 1793 argument and decision dates come from the Constitution Annotated page cited above and from the Wikipedia article on the case.
9. Constitution Annotated, Historical Background on the Eleventh Amendment (Cornell LII edition), https://law.cornell.edu/constitution-conan/amendment-11/historical-background-on-the-eleventh-amendment. Reports that Chisholm "provoked such anger in Georgia and such anxiety in other states," that the amendment was proposed by "an overwhelming vote of both Houses," and that it was ratified with what Justice Frankfurter called "vehement speed" (Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting)).
10. Hans v. Louisiana, 134 U.S. 1 (decided March 3, 1890) (Bradley, J.), https://www.law.cornell.edu/supremecourt/text/134/1. Source for the facts of the suit, the quotations from the opinion, the Court's description of Chisholm, and the quotation of Chief Justice Taney in Beers v. Arkansas, 20 How. 527 (1858).
11. The Founders' Constitution, Amendment XI (University of Chicago Press), https://press-pubs.uchicago.edu/founders/tocs/amendXI.html. Source for the proposal dates (passed the Senate January 14, 1794 and the House March 4, 1794, Annals of Congress 4:30 to 31, 477 to 78), the ratification dates of thirteen states, the completion of ratification by North Carolina on February 7, 1795, and John Adams's message of January 8, 1798 (Richardson 1:260).
12. "Eleventh Amendment to the United States Constitution," Wikipedia, https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution (secondary source, opened October 2026). It gives the vote counts (Senate 23 to 2, House 81 to 9) and notes New Jersey's 2018 ratification. This lesson could not open the Annals of Congress pages to confirm the tallies.
13. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), https://www.law.cornell.edu/supremecourt/text/3/378. Source for the arguments about presentment to the President and ex post facto effect, Justice Chase's response, and the Court's statement that "there could not be exercised any jurisdiction, in any case, past or future."
14. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (argued October 11, 1995, decided March 27, 1996), https://www.law.cornell.edu/supremecourt/text/517/44. Rehnquist, C.J., for the Court, joined by O'Connor, Scalia, Kennedy and Thomas, JJ.; Stevens, J., dissenting; Souter, J., dissenting, joined by Ginsburg and Breyer, JJ. The "century-old mistake of Hans itself" language appears in Justice Souter's dissent.
15. Ex parte Young, 209 U.S. 123 (argued December 2 and 3, 1907, decided March 23, 1908) (Peckham, J.; Harlan, J., dissenting), https://www.law.cornell.edu/supremecourt/text/209/123. Source for the Minnesota rate acts of 1907 (2 cents a mile; felony penalty of a fine up to $5,000 or up to five years' imprisonment), the stockholder suits, the contempt order (a $100 fine and an order to dismiss the state mandamus proceeding or be held in the marshal's custody), and the quoted passage.
16. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (argued October 16, 1996, decided June 23, 1997), https://www.law.cornell.edu/supremecourt/text/521/261. Justice Kennedy delivered the opinion of the Court as to Parts I, II-A and III; Parts II-B, II-C and II-D carried only the Chief Justice's vote with his. Justices O'Connor, Scalia and Thomas concurred in part and in the judgment. Justice Souter dissented, joined by Justices Stevens, Ginsburg and Breyer. The syllabus refers to "the Young fiction" and the opinion cites Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991).
17. Edelman v. Jordan, 415 U.S. 651 (argued December 12, 1973, decided March 25, 1974) (Rehnquist, J.), https://www.law.cornell.edu/supremecourt/text/415/651. The Court wrote that an "ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young." Four Justices dissented (Douglas, Brennan, Marshall, joined by Blackmun), making the vote 5 to 4.
18. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (decided January 23, 1984) (Powell, J.), https://www.law.cornell.edu/supremecourt/text/465/89. Source for the quotation about "a greater intrusion on state sovereignty" and the statement that a state's waiver of immunity in its own courts "is not a waiver of the Eleventh Amendment immunity in the federal courts." The 5-to-4 vote was not separately confirmed against the U.S. Reports.
19. Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (argued December 5, 2001, decided May 20, 2002), https://www.law.cornell.edu/supremecourt/text/535/635. Source for the "straightforward inquiry" holding, which cites Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 296, 298 to 99 (1997).
20. Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247 (argued December 1, 2010, decided April 19, 2011) (Scalia, J.), https://www.law.cornell.edu/supremecourt/text/09-529.
21. Fitzpatrick v. Bitzer, 427 U.S. 445 (argued April 20 and 21, decided June 28, 1976) (Rehnquist, J.; Brennan and Stevens, JJ., concurring in the judgment), https://www.law.cornell.edu/supremecourt/text/427/445.
22. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (decided June 23, 1999) (Scalia, J.), https://www.law.cornell.edu/supremecourt/text/527/666. The page reads: "Whatever may remain of our decision in Parden is expressly overruled." The 5-to-4 vote was not separately confirmed against the U.S. Reports.
23. Kimel v. Florida Board of Regents, 528 U.S. 62 (argued October 13, 1999, decided January 11, 2000), https://www.law.cornell.edu/supremecourt/text/528/62.
24. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (argued October 11, 2000, decided February 21, 2001), https://www.law.cornell.edu/supremecourt/text/531/356.
25. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (argued January 15, decided May 27, 2003) (Rehnquist, C.J., for the Court, joined by O'Connor, Souter, Ginsburg and Breyer, JJ., and by Stevens, J., concurring in the judgment), https://www.law.cornell.edu/supremecourt/text/538/721. The vote count of 6 to 3 reflects the dissents of Scalia, Kennedy and Thomas, JJ.
26. Tennessee v. Lane, 541 U.S. 509 (argued January 13, decided May 17, 2004) (Stevens, J., for the Court, joined by O'Connor, Souter, Ginsburg and Breyer, JJ.; Rehnquist, C.J., Scalia, Kennedy and Thomas, JJ., dissenting in separate opinions), https://www.law.cornell.edu/supremecourt/text/541/509. This lesson read the lineup on the opinion pages; it did not separately confirm each Justice's vote.
27. United States v. Georgia, 546 U.S. 151 (argued November 9, 2005, decided January 10, 2006) (Scalia, J., for a unanimous Court), https://www.law.cornell.edu/supremecourt/text/04-1203.
28. Allen v. Cooper, 589 U.S. 248 (argued November 5, 2019, decided March 23, 2020) (Kagan, J.), https://www.law.cornell.edu/supremecourt/text/18-877.
29. Central Virginia Community College v. Katz, 546 U.S. 356 (argued October 31, 2005, decided January 23, 2006) (Stevens, J., for the Court, joined by O'Connor, Souter, Ginsburg and Breyer, JJ.; Thomas, J., dissenting, joined by Roberts, C.J., and Scalia and Kennedy, JJ.), https://www.law.cornell.edu/supremecourt/text/04-885.
30. PennEast Pipeline Co. v. New Jersey, 594 U.S. 482 (argued April 28, decided June 29, 2021) (Roberts, C.J., for the Court, joined by Breyer, Alito, Sotomayor and Kavanaugh, JJ.; Gorsuch, J., dissenting, joined by Thomas, J.; Barrett, J., dissenting, joined by Thomas, Kagan and Gorsuch, JJ.), https://www.law.cornell.edu/supremecourt/text/19-1039.
31. Torres v. Texas Department of Public Safety, 597 U.S. 580 (argued March 29, decided June 29, 2022) (Breyer, J., for the Court, joined by Roberts, C.J., and Sotomayor, Kagan and Kavanaugh, JJ.; Thomas, J., dissenting, joined by Alito, Gorsuch and Barrett, JJ.), https://www.law.cornell.edu/supremecourt/text/20-603.
32. Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (argued February 25, decided May 13, 2002) (Breyer, J., for a unanimous Court), https://www.law.cornell.edu/supremecourt/text/01-298.
33. Franchise Tax Board of California v. Hyatt, 587 U.S. 230 (argued January 9, decided May 13, 2019) (Thomas, J., for the Court, joined by Roberts, C.J., and Alito, Gorsuch and Kavanaugh, JJ.; Breyer, J., dissenting, joined by Ginsburg, Sotomayor and Kagan, JJ.), https://www.law.cornell.edu/supremecourt/text/17-1299.
34. Galette v. New Jersey Transit Corp., No. 24-1021, and New Jersey Transit Corp. v. Colt, No. 24-1113 (argued January 14, decided March 4, 2026) (Sotomayor, J., for a unanimous Court), https://www.law.cornell.edu/supremecourt/text/24-1021. The U.S. Reports citation had not been assigned when this lesson was written; check the Court's website for the final citation.
35. Jane Dall Wilson, "Supreme Court Decides Galette v. New Jersey Transit Corp.," Faegre Drinker Biddle & Reath LLP (March 4, 2026), https://www.faegredrinker.com/en/insights/publications/2026/3/supreme-court-decides-galette-v-new-jersey-transit-corp (secondary summary, consistent with the opinion).
36. United States v. Texas, 143 U.S. 621 (1892), https://www.law.cornell.edu/supremecourt/text/143/621. The suit concerned the title to "Greer County," which the map of Texas designated as part of the state and which Congress treated as in dispute by the act of 1891.
37. Lincoln County v. Luning, 133 U.S. 529 (1890), https://www.law.cornell.edu/supremecourt/text/133/529.
38. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (argued November 3, 1976, decided January 11, 1977), https://www.law.cornell.edu/supremecourt/text/429/274. The syllabus states that "a local school board like petitioner is more like a county or city than it is an arm of the State."
39. Will v. Michigan Department of State Police, 491 U.S. 58 (argued December 5, 1988, decided June 15, 1989) (White, J., for the Court, joined by Rehnquist, C.J., and O'Connor, Scalia and Kennedy, JJ.; Brennan, J., dissenting, joined by Marshall, Blackmun and Stevens, JJ.), https://www.law.cornell.edu/supremecourt/text/491/58.
40. Hafer v. Melo, 502 U.S. 21 (argued October 15, decided November 5, 1991), https://www.law.cornell.edu/supremecourt/text/502/21. The syllabus states that "The Eleventh Amendment does not bar § 1983 personal-capacity suits against state officials in federal court."
41. Lewis v. Clarke, 581 U.S. 155 (argued January 9, decided April 25, 2017) (Sotomayor, J.), https://www.law.cornell.edu/supremecourt/text/15-1500.
42. Idaho Code § 6-906 (filing claims against a political subdivision: 180 days, filed with the clerk or secretary), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-906/.
43. Idaho Const. art. I, § 18, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect18/.
44. Idaho Code § 6-903 (liability of governmental entities), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-903/.
45. Idaho Code § 6-902 (definitions of "state," "political subdivision" and "governmental entity"), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-902/.
46. Idaho Code § 6-904 (exceptions to governmental liability), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-904/. This lesson quotes the exceptions that bear on the discussion and does not list all of them.
47. Idaho Code § 6-926 (limits of liability: $500,000 per occurrence unless more insurance is held), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-926/. The figure is the text posted on the Legislature's website in October 2026.
48. Idaho Code § 6-905 (filing claims against the state or an employee: 180 days, filed with the secretary of state), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-905/.
49. Idaho Code § 6-914 (jurisdiction in the district court), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-914/.
50. Idaho Code § 6-918A (attorney fees on clear and convincing evidence of bad faith, within the § 6-926 cap), https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-918A/.