The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity

The Yale Law Journal broad, within its sphere, as is the legislative power of the United States ("full judicial power").' To accommodate the conflict between these competing principles, federal courts have used a set of arcane doctrines to limit application of this broad immunity.Thus, if a state officer is sued for a prospective injunction to restrain unconstitutional action, the doctrine of Ex parte Young' permits adjudication of a direct challenge to state action on the fiction that the state itself is not the defendant.In other instances, states are subject to federal adjudication because of congressional abrogation of the immunity, 8 or a state's supposed consent to the exercise of federal jurisdiction.9 These fictions ameliorate but do not eliminate the tension between accountability and judicial power, on the one hand, and immunity on the other.The constitutional status of the states' immunity continues to bar important forms of relief on federal claims 10 and to impose unusual barriers to the exercise of Congress' power to overcome state immunity." 1 It thus remains important to ask: Does the Eleventh Amendment supply, or imply, a constitutional immunity for states as to claims arising under federal law?This article argues that it does not and that the consequences of the Court's acknowledging the error in its constitutional theory of state sovereign immunity would be less drastic than might be thought.The Eleventh Amendment, and the doctrine of state constitutional immunity from suit in federal courts which it represents, has long been perceived as a doctrinal abyss, replete with inconsistencies borne of pragmatic adjustments to the principle for which it supposedly stands.Many scholars have concluded that Hans was wrongly decided insofar as it held that federal courts are barred from exercising jurisdiction over a suit arising under federal law and brought by a citizen against his own state."Al-6.Osborn v. Bank of United States, 22 U.S. (9 Wheat.)738, 818-19 (1824); Cohens v. Virginia, 19 U.S. (6 Wheat.)264, 391-92 (1821); Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U.L. REv.205 (1985); Amar, supra note 1, at 1481-84; Fletcher, supra note 1, at 1074 n.170.7. 209 U.S. 123 (1908).8. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Congress has power under Fourteenth Amendment to abrogate state's Eleventh Amendment immunity from suit for monetary relief by private individuals in federal court).9. See, e.g., Parden v. Terminal R. Co., 377 U.S. 184 (1964), overruled in part, Welch v. State Dep't of Highways, 107 S. Ct. 2941 (1987).10.See, e.g., Papasan v. Allain, 478 U.S. 265 (1986) (no monetary award against state trustees of public school fund even where breach of federal requirements alleged); Green v. Mansour, 474 U.S. 64 (1985) (no declaratory judgment available to determine whether state's prior administration of federal welfare program complied with controlling federal law).11.See, e.g., Atascadero State Hosp.v. Scanlon, 473 U.S. 234 (1985) (Congress failed to make sufficiently clear that state could be sued for monetary relief under Rehabilitation Act); cf.Pub.L. No. 99-506, § 1003, 100 Stat.1807, 1845 (1986) (codified at 42 U.S.C.A. § 2000d-7 (West Supp.1987)) (legislative response to Atascadero).12. J.