The Better Course in the Post-Lapides CircuitSplit: Eschewing the Waiver-by-RemovalRule in State Sovereignty Jurisprudence

I. IntroductionBy the Rehnquist Court's end, much of lay and learned opinion had ascribed to it a reestablishment of state prerogatives and a revival of federalism.1 Commentators noted how the Rehnquist Court had overturned dozens of federal laws that sought to project federal authority into what the Supreme Court majority viewed as the domain of the states.2 Scholars observed how, in the last fifteen years, the Court had struck down at least ten federal statutes on federalism grounds.3 In contrast, in the prior fifty years, the Supreme Court had only once found that a statute violated principles of federalism.4 Over the past fifteen years, the U.S. Supreme Court has breathed life into what appeared to be a moribund, abstract, technical area of law,5 and renewed attention has fallen upon the federal-state balance of power.6Despite the Rehnquist Court's use of judicial review to advance federalism, however, many constitutional scholars question its decisions' cumulative coherence and likely future influence.7 The incoherence appears particularly in what many describe as the cornerstone of the Rehnquist Court's federalism, its defense of state sovereign immunity.8 Sovereign immunity9 protects states from the suits of individuals.10 It also indirectly protects States from the federal government, which often attempts to enforce its laws by enabling individuals to sue States through private causes of action or citizensuit provisions.11 Sovereign immunity does not shield States from suits brought by other States and by the federal government.12The impermanence of the Rehnquist Court's sovereign immunity jurisprudence has been demonstrated recently by the Roberts Court's overruling of one of the earlier Court's central provisions-that statutes passed under Article I powers did not abrogate state immunity.13 This doctrinal back-andforth characterizes much of the Supreme Court's sovereign immunity jurisprudence over the past few decades.14 This Note focuses on one of the latest swerves,15 Lapides v. Board of Regents.16 Lapides ruled that a State could not advance in federal court a sovereign immunity defense waived by state statute or through litigation on the merits.17 The decision appeared to many as a surprising reversal, or at least tempering, of the Rehnquist Court's earlier federalism decisions.18 It has cast doubt on the current state of state sovereign immunity.19 It has led to a circuit split on the ruling's scope,20 the resolution of which is this Note's topic.Part II of this Note places Lapides in the history of sovereign immunity and its exceptions. Part III analyzes Lapides and the arguments of both sides of the circuit split, while criticizing the doctrine of waiver-by-removal. Part IV appraises the arguments of the courts adopting waiver-by-removal, and instead recommends the adoption of the Fourth Circuit's limited waiver rule. In conclusion this Note urges the Court and other courts to adopt the Fourth Circuit's rule.II. State Sovereign Immunity and Waiver in Historical ContextLapides belongs to sovereign immunity's long and confusing history.21 Subpart A provides the development of the intertwined jurisprudences of sovereign immunity and Eleventh Amendment immunity. Subpart B describes the three exceptions to sovereign immunity, providing their current scope and discussing their constitutional legitimacy. Both subparts demonstrate the confusion of immunity jurisprudence and waiver's centrality to it-two issues that Lapides has failed to resolve.A. Sovereign Immunity and Eleventh Amendment Immunity in Historical ContextSovereign immunity derives from the axiom that suit or action can be brought against the King, even civil matters, because no court can have jurisdiction over him ... [fjor all jurisdiction implies superiority of power.22 The Court asserts that states enjoyed this immunity before and after the Constitution's ratification.23 As currently understood, state sovereign immunity has two parts: [F]irst, that each State is a sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. …