Must Courts Raise the Eleventh AmendmentSua Sponte?: The Jurisdictional Difficultyof State Sovereign Immunity

I. Introduction The Eleventh Amendment to the United States Constitution confers extraordinary protection upon the states: immunity from suit in federal court without their consent.' Although old, as constitutional doctrine goes,' ascertaining to what extent the Eleventh Amendment incorporates the common-law principle of sovereign immunity' is the subject of a truly tortured line of cases.' Numerous academic commentators have addressed the question as well.' This Note asks whether a federal court has a jurisdictional obligation to consider the Eleventh Amendment on its own motion even if a state defendant does not invoke the privilege. This Note argues that the Eleventh Amendment enjoys a textually-based constitutional status that, considered with the policies behind sovereign immunity, requires courts to consider state immunity just as courts consider subject matter jurisdiction: at all times and sua sponte if they detect a potential bona fide Eleventh Amendment issue in a pending case.' In Part 11, this Note surveys the Eleventh Amendment's history and key jurisprudence.' Part IR discusses the similarities between state sovereign immunity and traditional jurisdictional doctrines.' Part IV examines the current disagreement among federal courts of appeals on the issue of whether federal courts must raise the Eleventh Amendment on their own motion.' Part V presents two recent United States Supreme Court cases concerning the law of state sovereign immunity and explains their significance in determining whether states may waive their Eleventh Amendment protection by omission. Part VI discusses the ways in which both the Eleventh Amendment and the traditional requirements of subject matter jurisdiction promote federalism, and it argues that this similarity provides additional support for their identical treatment in the federal courts. Finally, Part VII of this Note summarizes the deficiencies of a court's decision that sua sponte consideration of state sovereign immunity is merely permissive, and, with the support of legal and prudential reasoning, Part VII promotes the adoption of a rule requiring mandatory sua, sponte consideration of the Eleventh Amendment.12 II. The Love-Hate Relationship of the Eleventh Amendment and State Sovereign Immunity A. The Love The most basic premises of Eleventh Amendment doctrine run along two axes that demonstrate the origin of at least some of the puzzlement in this area of the law. Study of the first axis reveals that courts have raised the Eleventh Amendment's bar to suits against states qua states beyond the protection that the teXt itself giVeS.14 Read literally, the text of the Eleventh Amendment precludes only suits against a state that citizens of another state or that citizens of a foreign country bring in federal court. Because the ratification of the Eleventh Amendment effectively overruled the 1793 decision of the Supreme Court in Chisholm v. - a diversity action in which the Court refused to allow the state of Georgia to default on a private loan - the amendment's narrow language is not surprising. The strict text of the Eleventh Amendment addresses the result in Chisholm point-by-point, just as the amendment's proponents intended it to do.18 The Court eventually extended the amendment further by holding in Hans v. Louisiana that permitting some federal court suits against states to proceed on the simple basis of the plaintiffs citizenship contravenes the most important policies behind the amendment. Today, the Eleventh Amendment also bars federal suits against unconsenting states by Indian tribes and foreign nations, as well as suits in admiralty, although the text of the amendment itself confers none of these protections. B. The Hate The second axis of Eleventh Amendment interpretation requires states to defend some federal suits even when they do not consent to the exercise of federal jurisdiction. Over ninety years ago, in the seminal case of Ex parte Young,23 the Supreme Court first articulated its interpretation of the Eleventh Amendment that normally permits a suit for prospective relief against a state officer. …