State Judges, State Officers, and Federal Commands After Seminole Tribe and Printz

Ellen D. Katz, University of Michigan Law School


The Supreme Court's 1996 decision in Seminole Tribe of Florida v. Florida has shifted litigation over certain federal rights from federal to state court. Seminole Tribe held that Congress may not abrogate state immunity from private suit in federal court when it legislates pursuant to Article.I, Section 8 of the Constitution, and thereby called into question dozens of federal statutes that authorize private suits against states in federal court. Seminole Tribe's preservation of Fitzpatrick v. Bitzer, which held that Congress may abrogate such state immunity when it legislates pursuant to Section 5 of the Fourteenth Amendment has enabled some of these statutes to survive scrutiny. Even so, the Court's decision in City of Boerne v. Flores has rendered suspect at least some statutes previously thought to be valid Section 5 enactments. Statutes that are not susceptible to characterization as legitimate Section 5 legislation may no longer be enforced against states in federal court absent state consent. Litigants seeking to enforce rights under such statutes have turned to state courts for judicial relief, but are finding that at least some are unwilling to hear their claims. In a series of decisions, these courts have relied on Seminole Tribe to hold that a constitutionally protected immunity shields states from liability under federal law in state as well as federal court. States, moreover, argue further that their courts bear no obligation to hear federal claims brought against a state defendant when the state has not waived the defendant's immunity from analogous claims arising under state law. This Article argues that both positions advocating restrictions on state liability in state court are untenable. Congress may subject states to suit in state court even when the Eleventh Amendment, as construed by the Court in Seminole Tribe, would bar a federal court from adjudicating that cause of action. When Congress does so, state courts of otherwise general jurisdiction must adjudicate the resulting claim, regardless of the scope of state immunity under state law.