The Irony of Immunity: The Eleventh Amendment, Irreparable Injury, and Section 1983

Last Term's decisions in Alden v. Maine, and the Florida Prepaid cases, and this Term's decisions in Kimel v. Florida Board of Regents, Reno v. Condon and United States v. Morrison raise questions about the proper scope of Congress' regulatory and remedial powers. Previous scholars have explained that the main effect of the Supreme Court's Eleventh Amendment sovereign immunity decisions has been not to preclude litigation against the states altogether, but rather to force such claims into lawsuits against state officials either under the Ex parte Young fiction (if the plaintiffs seek injunctive relief) or under 42 U.S.C. Statute 1983. The purpose of this article is to ask what the implications of a robust interpretation of the Eleventh Amendment are for litigation under Ex parte Young or section 1983. My basic premise is that there is a paradox at the heart of the Court's Eleventh Amendment jurisprudence: the very mechanism by which the Court seeks to enhance federalism and state autonomy may in fact channel litigation into a form that imposes greater constraints on state action. I begin by focusing on the distinction between Congress' Article I power to regulate state economic activity and its section 5 power to abrogate state immunity from private lawsuits. I then identify a key consequence of the state's Eleventh Amendment immunity: it wipes out the possibility of an adequate damages remedy for the intended beneficiaries of congressional regulation. Thus, the Eleventh Amendment creates the potential for an irreparable injury. The threat of an irreparable injury is precisely the circumstance that justifies injunctive relief under both Ex parte Young and section 1983. That injunctive relief may turn out to be far broader and more intrusive than the damages that would have been available after the fact, both because it may involve more invasive judicial supervision of state entities and because some of the defenses that would be available in after-the-fact litigation, most notably qualified immunity, are unavailable in cases seeking prospective relief. I predict that the Court will soon confront the question whether to eliminate this right-remedy gap by constricting the scope of the rights it recognizes.