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This article argues that conflicting analytical strains run through the Supreme Court's recent majority opinions in the area of state sovereign immunity. The "supremacy" strain stresses that, despite the Eleventh Amendment, the states remain obligated to comply with federal law, and that the Constitution envisions the "necessary judicial means" to enforce these obligations against the state. These means include suits by the federal government, private suits for injunctive relief, and suits seeking damages from state officials in their individual capacities. Thus, according to the supremacy strain, state sovereign immunity is unimportant because it merely bars unnecessary means of enforcing the federal obligations of the states. The "state sovereignty" strain, on the other hand, emphasizes that state sovereign immunity is a vital and fundamental principle of federalism and hence, for example, cannot be evaded through mere pleading maneuvers. Both analytical strains are evident in the recent opinion in Alden v. Maine. This article describes the two analytical strains and argues that the conflict between them may be coming to a head in the Court's doctrine concerning abrogation of Eleventh Amendment immunity under the Fourteenth Amendment. The recent abrogation cases suggest that an abrogation of state sovereign immunity is valid only if it is "genuinely necessary." If so, and if state sovereign immunity does not bar the "necessary judicial means" for assuring state compliance with federal law, then it would appear that an abrogation of state sovereign immunity would never be valid. The increasing prominence of the state sovereignty strain in the Court's decisions suggests that the Court may be poised to narrow the alternative remedies that until now have provided the "necessary judicial means" for assuring state compliance with federal law, substituting a congressional power to abrogate state sovereign immunity pursuant to the Fourteenth Amendment. This article concludes that such a move would be problematic because, among other things, it would deny "necessary judicial means" of enforcing valid federal laws placing obligations on the states pursuant to Article I.


Vol. 75 Notre Dame Law Review, Page 859 (2000). Reprinted with permission. © Notre Dame Law Review, University of Notre Dame.

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75 Notre Dame L. Rev. 859-918 (2000)