Document Type
Brief
Publication Date
8-13-2019
Abstract
Amici are scholars of constitutional law, federal jurisdiction, and civil rights law who have taught and written about the Eleventh Amendment and state sovereign immunity for many years. We present this brief in an effort to make our scholarship and experience useful to the Court.
This brief suggests a path for resolving this important case that is faithful to the Constitution's text and history, minimizes disruption to this Court's state sovereign immunity jurisprudence, and maximizes the chance for consensus on the Court. The key is this Court's unanimous decision, authored by Justice Antonin Scalia, in United States v. Georgia, 546 U.S. 151 (2006). Georgia held that federal statutes abrogating state sovereign immunity are always valid when invoked by a plaintiff who can establish not only a statutory violation but also a constitutional one whether or not the statute would also be valid if prophylactically applied to state conduct that is not unconstitutional. This is the narrowest form of abrogation under Section 5 of the Fourteenth Amendment. It implements the special concern for constitutional rights demonstrated by the Framers of both the original Constitution and the Eleventh and Fourteenth Amendments. And it follows the teaching of unanimous Courts in both Georgia and Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which recognized Congress's powers to enforce those rights through damages remedies even against nonconsenting states.
Recommended Citation
Bagenstos, Samuel, "Allen v. Cooper: Brief of Public Law Scholars as Amici Curiae in Support of Petitioners" (2019). Appellate Briefs. 56.
https://repository.law.umich.edu/briefs/56
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Intellectual Property Law Commons
Comments
Amicus: Bagenstos, Professor Samuel; Siegel, Professor Neil S.; Young, Professor Ernest