Alden v. Maine - Oral Argument

Argument of Laurence S. Gold

Chief Justice Rehnquist: We'll hear argument first this morning in No. 98-436, John Alden v. Maine.

Mr. Gold.

Mr. Gold: Mr. Chief Justice, and may it please the Court:

The question in this case, which we have referred to in our briefs as the Article I State sovereign immunity question, is generated by and can only be answered by reference to the unique sovereignty scheme of our Constitution.

That scheme divides sovereignty between the United States and the States, subdivides the sovereign authority of the United States among the three branches of the National Government, makes the sovereign legislative authority of the United States within its sphere supreme, and provides a dual role for the State courts in the enforcement of the entire law, both Federal and State.

The question here is predicated on the following case.

After their Federal court Fair Labor Standards Act overtime pay case was dismissed on Eleventh Amendment grounds and as specifically provided for in the FLSA, the State employee plaintiffs here began this proceeding by bringing an FLSA case against the State of Maine in the Superior Court of Cumberland County, Maine.

Maine in its answer answered entered an affirmative defense of sovereign immunity.

The superior court granted Maine's motion for judgment on that defense, and the Supreme Judicial Court of Maine in a 4 to 2 decision affirmed.

In this Court, Maine's submission in defending the decision below is that the FLSA provision for State employee overtime pay suits against a State in State court is not a valid law because it transgresses a constitutional constraint on Congress' Article I legislative power, one that puts it beyond Congress' authority to provide for the enforcement of a valid Federal statute through State liability rules that override State sovereign immunity rules.

The framework for the issue presented is provided by this Court's Garcia decision and its decision in Howlett v. Rose.

As to Garcia...

Chief Justice Rehnquist: Howlett was not a suit against a State, was it, Mr. Gold?

Mr. Gold: No.

It was a suit against a municipality, and all we argue is that its method of approach frames the question.

Then the ultimate question becomes the one that the State raises whether a suit against a State where the State claims sovereign immunity is in a different category or class than a suit against a municipality where the municipality claims State sovereign immunity.

And that question turns on... not on the analytic structure of Howlett, which would treat both the same, but as the State recognizes, on whether State sovereign immunity, when claimed by the State, is of a different and constitutional dimension, a dimension which would make the Federal law invalid and thereby...

Justice O'Connor: Well, how... how is that so?

I thought in Seminole Tribe we described other ways of enforcing a Federal law, even though it couldn't be done directly.

I suppose there are alternative means of enforcement of the Federal law at stake.

Mr. Gold: There... if Congress cannot provide for private party State court enforcement of this law, given the Court's Eleventh Amendment jurisprudence which also closes the Federal courts to such proceedings...

Justice O'Connor: Well, but I suppose that a private person could still sue a State officer under an Ex parte Young type approach.

Mr. Gold: That could be done, but it would not be a suit for back pay for the money due and owing, and therefore what you have is if State sovereign immunity is an absolute check on the sovereign powers of Congress, then there can be no private party enforcement of a valid, binding Federal enactment.

Justice Scalia: But I...

So that the private party can prevent any future violation of the Federal law, and I assume the United States, if it... if it wished, if the statute were framed that way, could sue on behalf of the people who had been deprived previously of what they were entitled to under the Federal law.

Mr. Gold: Yes, and the... the State does concede that, and indeed as this Court has made clear, so that we're not overstating anything, the suit by the United States could be in Federal court as well as in State court.

There is no bar to that.

But the question is whether Congress is constrained by some constitutional principle from providing that which the sovereign can normally provide for enforcement through the usual processes of the law by the right holder in the law created by the sovereign.

Justice Kennedy: Well, it is a constitutional principle.

Mr. Gold, one... I just can't conceive of the Constitution being ratified if it were thought that the States could be sued as States in their own courts, and to that extent, I understand the Eleventh Amendment as being confirmatory of the original understanding.

Of course, it's an amendment, and we know that amendments are done to change the original understanding.

But in this case I think it was the original understanding and that's what puzzles me in this case.

And of course, we know the Thirteenth, Fourteenth, and Fifteenth Amendment made a dividing line and federalism for those actions were changed.

But this isn't under the Thirteenth and Fourteenth Amendment, and it comes back to this basic constitutional principle which I think teaches something, maybe not very much if the Federal Government can, in effect, get around our opinion by withholding grants in aid or suing on its own.

But it seems... I have... I have trouble conceiving of the Constitution being ratified under your theory.

Mr. Gold: Well, if... if I can, Justice Kennedy, it seems to me that what we see with regard to the original understanding is two points, and I don't think they lead to the conclusion that there is some implicit constitutional limit on Congress' sovereign authority that runs in favor... that limits Congress in its sovereign power and runs in favor of the States as to a matter where the State isn't sovereign.

I don't want to engage in word play, but what the claim is here, that there is something never seen before, namely, a limit on a true sovereign in favor of a... an entity who is certainly a governing authority and an important governing authority and a sovereign in many regards, but runs in favor of that governing entity in an aspect of the overall scheme in which the State or that governing entity is not sovereign.

That is a wholly extraordinary notion, one which we would think had to have some express understanding, and it's quite different from the concerns and interests that animated what we know of the fidelity to State sovereign immunity.

Justice Scalia: But, you know, you say it's an extraordinary notion, but the whole... the whole system of... of dual sovereignty and dual citizenship was an extraordinary notion.

I mean, it is extraordinary.

Mr. Gold: Right, but... and as the Eleventh Amendment shows, in making adjustments to deal with the new aspects of that extraordinary situation, there was what I think would have to be seen as an entirely new concept adjusted to the situation to preserve a form of... or to create a form of State sovereign immunity which would not have obtained by simple extrapolation from the law of nations.

And that's the Eleventh Amendment.

Justice Scalia: That... that... well, but...

Mr. Gold: And...

Justice Scalia: As Justice Kennedy pointed out, the Eleventh Amendment... our case law has said... and I understand there's some argument about it, but... but it's... it's the law here that it's just confirmatory of... of sovereign immunity that existed.

And the argument you're making now would make a lot of sense if you were saying, you know, really the Federal Government has its hands... hands tied unless this aspect of State sovereign immunity were automatically eliminated by the Constitution.

And in fact, it hasn't had its hands tied.

It can... it can achieve its ends in... in various other ways, and I think it's significant that, you know, it's been 200 and... and what... some odd years before... before this issue has even come before us.

Apparently the Federal Government hasn't found it very needful to proceed in this fashion in order to achieve its... its necessary objectives.

Mr. Gold: Well, as time evolves and we understand more about what's needed, I would argue to you that that kind of judgment is precisely the kind of judgment that Congress makes, what is proper enforcement, unless there is...

Justice Scalia: Not if hangs on sovereign immunity.

We're not going to let Congress decide...

Mr. Gold: Well, no.

Justice Scalia: what the States will do with their sovereign immunity.

Mr. Gold: But a sovereign immunity concept which goes beyond any concept that was understood at the time... after all, sovereign immunity as an attribute of sovereignty is vouchsafe to the States in State court.

Any claim on State law can be met with sovereign immunity.

But here we're dealing with a situation where Congress is the sovereign, where the State's sovereignty is diminished by the Constitution.

The State is bound by a Federal law in a way which a sovereign... a total sovereign could not be, and there is no indication that there was anything in history to... to show that an entity in that situation had sovereign immunity, and the true sovereign...

Justice Scalia: Well, of course... of course, there isn't because there's never been a creature like this, and the argument proves too much.

It... it would, carried to its logical conclusion, say that there's no State sovereign immunity of any sort in its courts or in the Federal courts...

Mr. Gold: No.

Justice Scalia: since the Federal Government has... has taken over legislative jurisdiction from the State and...

Mr. Gold: No.

Justice Scalia: and excluded the State from those areas.

Therefore, anything goes.

Mr. Gold: The... first of all, for sovereign immunity, it has to be a suit against the State on a Federal law which is valid within the State sovereignty constraints on Federal law, and nothing we say here goes to the special case of the Eleventh Amendment, which is, as this Court has been careful to state, a restriction on the Federal judicial power borne of particular concerns about the Federal judicial power, not a constraint on the sovereign legislative power.

In Seminole... if I could, and then I will try to save the rest of my time... the Court did not say that Eleventh Amendment sovereign immunity is a limit on Congress' plenary law enforcement powers.

What is said in a very careful holding was that State sovereign immunity, as a limit on the Federal judicial power, that separation of powers concepts prevent the legislative branch from expanding the heads of Federal jurisdiction.

And therefore, Congress cannot provide for suits in Federal court that are beyond the Federal judicial power.

This is a very different situation and it's limited to the enforcement of Federal laws properly binding on the States and enacted by Congress as the sovereign within its proper sphere.

And that is not a wide open area.

It is an area carefully confined by the basic concepts of the legislative power.

Argument of Seth P. Waxman

Chief Justice Rehnquist: Thank you, Mr. Gold.

General Waxman, we'll hear from you.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

When the Founders adopted the Constitution, they conferred the Article I powers upon Congress immediately, but they left it optional whether Federal... lower Federal courts would be... ever be created.

So, how did they expect that the Article I powers would be effectuated?

The answer is provided by the text of the Supremacy Clause, which makes the Constitution and laws of the United States the supreme law of the land and provides that, quote, the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In the context of the document as a whole, this must include authority for Congress to provide remedies in State courts, otherwise the great Article I powers would have been written in disappearing ink.

The State relies in this case on an asserted constitutional or pre-constitutional right of sovereign immunity in its own courts.

But as Justice Holmes explained for this unanimous Court in 1907, sovereignty belongs to, quote, the authority that makes the law upon which the right depends.

With respect to Federal claims, the sovereign is not the State.

It is the Nation, and therefore, as this Court explained in Hilton, when a Federal statute imposes liability upon the States, quote, the Supremacy Clause makes that law the law in every State enforceable fully in State court.

Chief Justice Rehnquist: Well, General Waxman, would you agree that there is no case from our Court that squarely decides the issue before us now?

Mr. Waxman: I would agree that no case squarely decides it.

I would agree with the Supreme Court of Arkansas in its analysis of this very question that this Court's decisions in Hilton and Howlett, particularly taken together, very strongly suggest the result.

Chief Justice Rehnquist: Howlett didn't involve a State.

Mr. Waxman: No.

Howlett didn't involve a State, but it did... Howlett stands for the proposition that when the State, on behalf of a... an arm of the State, an entity that isn't... that is subject to liability under the Federal statute... we know that States aren't subject to liability... are assertedly covered by a State assertion of sovereign immunity... the Supremacy Clause requires that the Federal law be applied.

In Hilton I think...

Chief Justice Rehnquist: By... by analogy we've held that under the Eleventh Amendment, counties, Luning against New Mexico, don't participate of the... of the Eleventh Amendment immunity.

It seems to me by analogy you would say certainly counties do not participate of any sovereign immunity that might exist here.

But you... that may not be true of the State.

I think you read too much into Howlett.

Mr. Waxman: Well, it may be.

I... I would suggest that Howlett itself announced two principles that we think are quite fundamental to this case and, understood in the context of this Court's decision in Hilton, I think strongly suggest the result.

The principles are, number one, that a State court may not deny a Federal right absent a valid excuse.

And number two, that an excuse that is inconsistent with or violates Federal law is not a valid excuse.

Now, in Hilton, this Court considered the applicability of the Fair Labor Standards Act, whether the fair... whether a claim could be brought under the Federal Employers Liability Act in State court, when under Welch the Eleventh Amendment barred such a suit in Federal court.

And the State argued in its brief and before this Court that because the State was entitled to a sovereign immunity in its own courts of a constitutional significance equal to the Eleventh Amendment, the unmistakably clear principle of Atascadero and Welch had to be applied and therefore the State remedy wasn't available.

And this Court rejected that proposition over a strong dissent that adopted the State's argument, and the majority opinion held that, no, the question... the clear statement requirement that has to be applied in this case is the... is the requirement in Pennhurst and Gregory v. Ashcroft, that is one of pure statutory construction.

And we don't have to apply that pure statutory construction question in the case because pardon establishes another rule of statutory construction, that is, stare decisis, and we therefore hold that that remedy is available.

Now, Mr. Chief Justice, you are quite right that this Court's decision in Hilton doesn't decide the precise question that's before this Court, but I suggest to the Court, most respectfully, that the discussion in Hilton about the consequence of denying a right in State court against the... the Eleventh Amendment backdrop in which no right would be available in Federal court, would be that the plaintiffs would be denied a right at all, and it would have been I think... I suggest... rather surprising to the Court to understand that there was some sovereign immunity principle in State court that could trump that concern.

Chief Justice Rehnquist: Well, the Hilton court respected stare decisis in part, the reasoning of which has been totally undercut by our later cases.

Mr. Waxman: Well, what I think... I think it's... it's quite significant, Mr. Chief Justice, that the way this Court concluded its opinion in Howlett was to say, quote, that when a Federal statute does impose liability upon the States... I'm sorry.

Hilton... the Supremacy Clause makes that law the law in every State fully enforceable in State court, and it cited as support for that proposition the Court's unanimous decision the term before in Howlett.

And I suggest that that strongly implies that what the Court concluded was that if the State had, as it claimed it had, a sovereign immunity of constitutional significance, this Court would have been required under its prior decisions to apply the constitutional rule of... of utterly clear statement.

I can't... unmistakably clear statement as a matter of constitutional law, notwithstanding pardon.

Justice Kennedy: I... I think we... we can take for purposes of argument here there's little doubt that Congress can pass this... this statute.

But simply because the Congress has the sovereignty to legislate, does it follow that it can prescribe any conceivable remedy?

In this case, the Government could sue.

Why didn't the Government bring a suit in this case?

Mr. Waxman: Well, I think the answer to the question of whether Congress could prescribe any conceivable remedy is no.

Congress is limited in its choice of remedies, if by nothing else, by this Court's holding in McCulloch v. Maryland...

Justice Kennedy: Well, and it's limited by cases such as New York in which we say you can't command the State to do something directly.

Mr. Waxman: Exactly right.

And my... and what... one thing... a lot of this Court's decisions, beginning with Claflin in 1876 and running all the way down to Howlett, establish and recognize the notion that the Federal courts... Congress, in order to effectuate its remedies, can't require, for example, the States to create courts.

In Claflin, in... in holding that the State courts did have to recognize the Bankruptcy Act concerns, it said that the State courts must hear the claims, quote, whenever by their own constitution they're competent to take it.

And in Howlett, the Court said the requirement that a State court of competent jurisdiction treat Federal law as the law of the land doesn't necessarily include within it the requirement that a State create a court of competent jurisdiction.

Justice Kennedy: But if this... if this cause of action is... is so important that we must set aside the State's immunity in its own court, why isn't it important enough that the Government itself could have brought the suit?

Mr. Waxman: Well, the Government... the Government could bring a suit, and we could have a regime which seems to me to run...

Justice Stevens: May I interrupt with a question?

How do you know the Government could bring the suit?

I do not understand the logic that would say functionally the same suit would be defeated by sovereign immunity if the plaintiffs are the... are private parties, but if the Government sues in their name, it would not be.

I don't understand that reasoning.

Mr. Waxman: Well, I suppose the reason is that, you know, the Federal Government, as the super sovereign, can abrogate a sovereign immunity...

Justice Scalia: Well, you can sue in your own court.

Mr. Waxman: In Federal court.

Justice Breyer: How...

Mr. Waxman: But... excuse me?

Justice Stevens: But you could not sue in State court.

Justice Kennedy: You agree with that.

Mr. Waxman: I don't agree with it because I don't agree that the States have a... with respect to valid Federal law, acted properly under Congress' Article I authority, I don't think that the States have a sovereign immunity in their own court... and this goes to Justice Scalia's question... for two fundamental reasons.

This Court explained in Nevada v. Hall, referring back to Kawananakoa v. Polyblank, the proposition that there are... that the notion of sovereign immunity is really an amalgam of two different types of sovereign immunity.

This Court said in Nevada v. Hall, the doctrine of sovereign immunity is an amalgam of two quite different concepts: one applicable to suits in the sovereign's own courts and the other two suits in the courts of another sovereign

The former is absolute.

The latter was always a matter of comity, always until the Eleventh Amendment of the Constitution.

And the reason for this is the nature of sovereignty.

That is, sovereignty is the right to make the substantive law upon which the right depends.

Now, with respect to suits in their own courts, which was not the issue in Nevada v. Hall and which is not the issue in any of this Court's Eleventh Amendment cases... those are all suits about the other kind of sovereignty which doesn't depend on the sovereign being the law giver and which were always a matter of comity until, in the Plan of Convention, it was made absolute by a constriction or an interpretation of the scope of Article III.

With respect to the former type of sovereignty, which is at issue in this case, there was a principle in effect at the time the Constitution was decided that States were sovereign, absolutely sovereign, against suits against themselves in their own courts.

And that principle of sovereign immunity has not been affected by the Plan of Convention or by the enactment of the Constitution at all.

The States...

Justice Scalia: Do you have any of the... of the Framers who expressed that view?

I mean, several of them did express the opposite view...

Mr. Waxman: Well, the...

Justice Scalia: that they thought the States could not be... could not be sued on Federal causes of action in their own courts.

I mean, there are some statements to that effect.

Mr. Waxman: Justice Scalia, the only statements of the Framers that I am familiar with and the only ones that are reported in any of the briefs in this case or the Law Review articles I've read were statements that were made that either made the broad statement that the sovereign is always immune from suit in his own court and they were all made in the context of the Eleventh... the debate about the scope of Federal jurisdiction.

Justice Scalia: Well, but they did make the statement.

The sovereign is always immune from suit in his own court.

Mr. Waxman: And... and we don't dispute that.

In fact, I think that principle exists to this day, but the point is...

Justice Scalia: You're saying the States are not the sovereign where Federal legislation is concerned.

Mr. Waxman: The point... exactly.

The point is that the sovereign was always understood... and Justice Holmes in his opinion in Polyblank refers back to the... to law that predates the...

Justice Scalia: They were really deluding their listeners if that's all that they meant...

Mr. Waxman: Not... to the contrary.

Justice Scalia: that... that a Federal law could be passed which would enable the State... the State's treasury to be raided so long as the suit was brought in the State courts and not in the Federal court.

Mr. Waxman: Justice Scalia...

Justice Scalia: I don't think that's the point they were making.

Mr. Waxman: Well, I... I don't think that's... I don't think that there is anything in the Constitutional Convention debates that goes to the question of suits against States in their own courts at all, let alone under Federal law.

But we... what the State is asking for here...

Justice Kennedy: But... but that's the point.

It's the dog that doesn't bark argument.

And the anti-federalists didn't bring this up either.

If the Constitution had contemplated it, certainly the anti-federalists would have made the statement.

I see your red light is on.

Mr. Waxman: May I provide a brief response?

Justice Kennedy: Yes.

Justice Breyer: Yes, do provide a brief...

Mr. Waxman: The answer to the question could not be clearer and it exists in the Supremacy... the words of the Supremacy Clause of the Constitution which speak not to Federal judges or Federal courts, but to the judges of the States which must apply Federal law.

Thank you very much.

Argument of Peter J. Brann

Chief Justice Rehnquist: Thank you, General Waxman.

Mr. Brann, we'll hear from you.

Mr. Brann: Mr. Chief Justice, and may it please the Court:

There is no compelling evidence that the States surrendered either expressly or necessarily their immunity from suit in their own courts when, as part of the Plan of the Convention...

Justice Scalia: I don't need compelling evidence, just... just a little preponderance is all...

Unidentified Justice: [Laughter]

Justice Scalia: is all we're looking for here.

This is a hard question.

I'll settle for a preponderance.

Mr. Brann: Justice Scalia, the... this Court in the Blatchford said... made clear that it's incumbent upon those who are... who are seeking to abrogate the immunity that there be compelling evidence that arises from the Convention or from the text of the Constitution that the States gave up their immunity.

And we submit that they did not do that.

Justice Souter: Mr. Brann...

Justice Stevens: But you don't rely on the text of the Constitution at all, do you?

Mr. Brann: The structure of the Constitution...

Justice Breyer: The structure is what your entire argument is.

Mr. Brann: in which we have enumerated powers...

Justice Souter: I understand.

Mr. Brann: given to the Federal Government...

Justice Stevens: But you don't have anything in the text is what I'm saying.

Mr. Brann: Well, except that the text of the Constitution confirmed through the Tenth Amendment... and we think this case is fundamentally a Tenth Amendment case as well... is that we have a Federal Government of limited enumerated powers.

And the question is, was one of those few and defined powers the power to abrogate a State's sovereign immunity in its own courts.

Justice Stevens: Now, do I understand correctly that you would agree that the United States could not bring this action on behalf of these employees in the State court?

Mr. Brann: We... that is our position.

It is... it is our...

Justice Stevens: How is it then they can bring it in the Federal court?

Mr. Brann: The... we submit that one of the things that in the Plan of the Convention that States gave up was that... was the ability of a Federal... Federal Government to enforce Federal law in Federal court, dating back to the United States v. Texas case of over 100 years ago, that one of the things that's necessary in order...

Justice Stevens: Is there anything in the history of the Convention that explains that?

Anything describing that surrender of power?

Mr. Brann: The way in which this Court...

Justice Stevens: I think the Convention is equally silent on that point.

Mr. Brann: Except that the... this Court in United States v. Texas took the position... was that the State consented by virtue of the Supremacy Clause in granting the power... certain powers to the Federal Government, that what came with that was the fact that the Federal Government, not a private individual, but a Federal Government could enforce the Federal statutes.

Justice Kennedy: Well, then the Federal courts...

Justice Scalia: How do you get... get that limit in there just from the structure?

I think that's what Justice Stevens was asking.

Mr. Brann: We think...

Justice Scalia: It's a peculiar limitation.

I think your case would be a lot easier if you would acknowledge that the United States could... could bring suit in State courts or in Federal courts.

I... you understand my point?

It's a clear limit.

Mr. Brann: I do, Justice Scalia.

One of the... we think it's somewhat difficult to answer that simply because our experience is the Federal Government always files in Federal court and so it's never arisen in which... and if they can file it, presumably a State, if faced with it, may or may not even object if they file in State court.

So, there's really... we have very little to go on in that regard.

But we do agree...

Justice Ginsburg: Mr. Brann, how... how would it work in a case where it's not... you brought up the Tenth Amendment.

In a... it's a private, say, copyright or a patent claim.

It's a private suit.

You wouldn't get the United States in there like the Secretary of Labor to enforce the Fair Labor Standards Act.

So, with respect to that, if the Federal lawmaker, copyright or trademark, the exclusive lawmaker, the State as the alleged violator, could such a suit be brought and by whom?

Mr. Brann: Justice Ginsburg, I think that that actually illustrates the limits on which we are... of our argument is that in copyright and patent what we have is exclusive jurisdiction that is placed in the Federal courts.

The State courts don't have jurisdiction under those statutes, as I understand it, and so that under Seminole Tribe, those people, it was... it was asserted in... in Seminole Tribe were left without a remedy which this Court did not find was a compelling reason to...

Justice Ginsburg: But it wouldn't be the United States that's suing in those cases.

It would be a private party who says my copyright is violated or my trademark is violated.

Mr. Brann: And in those cases, that is true because the... but that... the problem in that case is already posed as a result of Seminole Tribe because of the layer in which...

Justice Scalia: Are you saying that the Government could not pass a statute which said that the Federal Government may... may sue on behalf of any individual whose copyright has been violated?

Mr. Brann: No, Your Honor.

The point... I was answering it based on the current statute.

Justice Scalia: Well, so it could... right, but it could be remedied, as far as the theory of your case is concerned, by a statutory amendment.

Mr. Brann: Under our constitutional construct, that's entirely correct, is that...

Justice Ginsburg: Did I misunderstand you to say that under your current theory, that there would be room... although there's no room for this lawsuit in State court, there would be room in Federal court for a private party to sue the State in an area where the Federal court... where the Federal legislature has exclusive legislative authority?

I thought you told me that.

Mr. Brann: If I did, I misspoke.

The point that... that we are making is that we look to whether or not the... the... there is power under the... under the Commerce Clause to abrogate the sovereign immunity.

If that power is not present, then... then they cannot authorize the action either in Federal court or in State court.

But we certainly...

Justice Souter: May I go back to your... your colloquy with Justice Stevens?

You... you conceded that the... that the National Government could sue in... in the Federal court to enforce this.

And I'm not sure that I understand why you concede that.

Could you explain that to me?

Mr. Brann: We believe that under the Plan of the Convention, what this Court referred to in... in the United States v. Texas case as consent... one of the things that we consented to when we ratified the Constitution was... as General Waxman alluded to, was a super sovereign and a super sovereign's ability to enforce its statutes, if they are otherwise valid and under Garcia...

Chief Justice Rehnquist: Well, didn't... didn't our Court hold in United States against California back in the '30's or '40's that the Federal Government could sue a State in... in Federal court?

Mr. Brann: Yes.

This Court has... has held that time and again.

Justice Souter: Well, but if the... if the United States can sue in a Federal court and it can do so because that basically was implicit in the Plan of the Convention and the Eleventh Amendment supposedly reflects that, then why was it not... why was the same implication not present, that when the National Government is enforcing... seeking to enforce a valid Federal law, it could sue in a State court?

Why... why was the line of the implication clearly drawn there?

Mr. Brann: As I say, the... the question is difficult to answer simply because it's never really arisen.

The Federal Government ordinarily sues in Federal court.

Justice Scalia: It probably don't... it probably won't either, so why are you fighting it?

Unidentified Justice: [Laughter]

Justice Scalia: It seems to me the weakest part of your case.

Justice Souter: Well, just in case it matters, could you...

Unidentified Justice: [Laughter]

Justice Scalia: Could you explain that to me?

Mr. Brann: We think that the States... one of the key aspects of sovereignty is the ability to create one's own courts and to ascribe them with their jurisdiction.

And one of the things that we do know from the Framers was that when we came to the Constitution, that the States were immune since time immemorial in their own courts.

The suggestion, therefore, is that although we may very well have given up the... to the United States the ability to sue us in Federal court as part of the Plan of the Convention, that does not necessarily mean that we gave up the right to sue in State court.

Justice Souter: Well, it wouldn't if perhaps... if you didn't have the Supremacy Clause.

But as... as you point out, certainly it's... it was a fundamental aspect of State sovereignty to be immune in its own courts, but it was an equally fundamental aspect of State sovereignty to control the law that will be enforced in its courts.

And the Supremacy Clause has flatly and unequivocally taken that away so long as the Congress is acting within the scope of its Article I authority.

So that if the Congress concededly can take away the authority to make the law, why doesn't it follow rather obviously that Congress can also take away the secondary authority to decide where the law will be enforced?

Mr. Brann: Because we think that the...

Justice Souter: And who may enforce it?

Mr. Brann: There... because of the limits of federalism placed on Congress in passing a statute...

Justice O'Connor: Where?

Justice Souter: Where is it?

Where are those limits found?

Mr. Brann: The limits are found in... in the structure of the Constitution and that we look to was... one of the things that the States gave up when the power to regulate commerce among the States... did that also include abrogation of sovereign immunity?

Justice Stevens: But your point is the structure of the Constitution precludes Congress from enacting a law that would deprive the State of sovereign immunity.

If that's true, how can it deprive the State of sovereign immunity in the Federal court or the State court when the United States is a plaintiff?

There's no lesser infringement of the right that you say is inviolable.

Mr. Brann: We... we would beg to different, Your Honor... is that we think that there is a fundamental difference between when the United States as a sovereign is filing suit than when a private individual is filing suit.

Justice Stevens: Even though the suit is filed on behalf of 10 individuals, it seeks precisely the same remedy and damages on behalf of the individuals as if the individuals sued for themselves.

Mr. Brann: But in those circumstances, the United States is still acting as a sovereign.

It... it may be trying to recover damages...

Justice Stevens: It was acting as a sovereign when it passed the statute authorizing the suit to be brought by the individuals.

But you say the executive power is greater than the legislative power to invade sovereign immunity.

Mr. Brann: No, that's... that's not... that's not our argument.

Our argument is that what did we give up when we came to the Constitution?

And we know from the Framers and from time prior to that...

Justice Scalia: And you're saying you did not give up sovereign immunity.

Mr. Brann: We give up... we did not give up the right...

Justice Stevens: Except in certain circumstances.

Mr. Brann: We did give up the right of a private individual to file a damages action against the State.

Justice Souter: But you did give up the right to control the law that will be enforced in your own courts.

Mr. Brann: If this... if the law is otherwise valid.

Justice Souter: Yes, if it's... if it's a valid exercise of Congress' power under Article I, you gave up that right.

Mr. Brann: We did.

Justice Souter: And... and isn't the... the question of... of which party enforces the right, whether it be the National Government or... or a private individual subject to the law's benefit, secondary to the basic jurisdictional question whether the National Government can make the operative law?

Mr. Brann: No.

We are not... we are not challenging the... the ability of the Government, the United States, to make substantive law.

It is simply whether or not one of the powers that came with it, as opposed to the other remedies that are available, the... which were alluded to this morning... you know, obviously, we've talked about the United States, and there's also been a reference to the Ex parte Young actions and also cases in which the State is willing to consent.

There are other remedies available to enforce that...

Justice Souter: Oh, I can... I'll grant you that you have conceded that.

But the basic problem that both Justice Stevens and I, I think, are having is... is a problem of finding a coherent theory because if the... if the theory behind your case is sovereign immunity, then I think it's pretty clear that there is not going to be any exception for enforcement actions by the National Government even in its own courts.

If, on the other hand, your... your theory is... is a principle which somehow is reflective of the Eleventh Amendment, it's clear the Eleventh Amendment doesn't apply to State actions.

And we're left, if we eliminate those two possibilities, with essentially the Supremacy Clause argument, and... and because the Supremacy Clause makes it clear beyond any argument that, within the proper sphere of Article I, the State no longer has a sovereignty to assert as against a Federal law, then it just seems kind of a bizarre exception to say, but that doesn't apply when the... when the Congress decides who it is who will walk in the courthouse door to enforce the law.

We're looking for some kind of a coherent theory, and I'll... you know, I'll be honest with you.

Justice Scalia: I don't see it.

Justice Souter: What am I missing?

Mr. Brann: Let me take my best attempt to provide that theory... is that we granted to Congress the power to regulate commerce among the several States.

And there's no doubt that one of the motivating factors were the tariffs and the trade wars and the like, and we gave up that.

The States gave that up, that you can regulate that commerce under those circumstances.

We... then we asked ourselves, but did they also give up the right for Congress to pass a law that then gave a private individual the right to bring a damages action?

Justice Souter: And it seems to me that the answer to that question turns on what the commerce power today includes.

There's no question that the... that the Framers would have been very surprised by the Garcia decision.

They didn't expect the commerce power was going to extend, in fact, to the... to the limit that it has because they couldn't foresee the growth of commerce.

But once the Framers had seen that the commerce power goes this far, then I don't see that there's much argument left in... in the intentions... turning on the intentions of the Framers not to allow a... a common and simple enforcement authority to go along with the sovereign power to make the... the law that regulates the commerce.

Mr. Brann: But, Your Honor, I think...

Justice Scalia: I thought we've held the contrary.

Is that what you were about to say?

Mr. Brann: I'm sorry?

Justice Scalia: I thought we've held the contrary.

Mr. Brann: I was about to say that...

[Laughter]

in a slightly different fashion.

Justice Souter: Here's your chance.

Unidentified Justice: [Laughter]

Mr. Brann: That argument, however, is precisely the argument that I think did not carry the day in Seminole Tribe in the sense that Congress' substantive...

Justice Souter: Well, Seminole... Seminole Tribe was a case about the Article III judicial power, and if Seminole Tribe had turned simply on a theory of sovereign immunity, one thing is clear beyond any doubt, there was no theory of sovereign immunity in the 18th century that included an exception for the United States.

Seminole Tribe had to turn on the extent to which a concept, a rough idea of sovereign immunity was embodied in the Eleventh Amendment as a limit on Article III, but there is... there is no carry over that I can see in Seminole Tribe to Article I.

Mr. Brann: The point that I was deriving from Seminole Tribe, Your Honor, was the following, which was that Congress' substantive powers under the Commerce Clause, which certainly have expanded, as we look in the late 20th century...

Justice Breyer: Well, commerce has.

Mr. Brann: is not the same as whether... as Congress' power to abrogate, that they are two separate issues and need to be analyzed separately.

And when we do that, that takes us back to the Framers.

And then we think that it's relevant that the... in the... if we remember the Madisonian Compromise in which there were not going to be lower Federal courts necessarily created, we were going to rely again on State courts, the fact that there is no reference whatsoever that in the discussions of a... of the power to abrogate sovereign immunity in State court when Congress was acting under its lawful...

Justice Kennedy: Well, and insofar as there is a perceived incongruity in your concession that the United States can sue, really the Constitution is quite specific that one State can sue another State, and so it surely follows that the United States can sue a State.

So, I see no inconsistency there at all.

And I thought that should have been part of your submission and your answer to Justice Souter.

Mr. Brann: And in...

Justice Stevens: Do you concede that another State could sue Maine in Maine's court if Maine objected?

Mr. Brann: No.

Justice Stevens: No, I didn't think so.

Mr. Brann: No.

[Laughter]

Justice Kennedy: But... but it's very clear that they could sue in Federal courts.

It's in Article III.

Mr. Brann: That is... we agree entirely with the point Justice...

Justice Souter: Which suggests... which suggests that Article I's analysis is somehow quite fundamentally different from Article III's analysis even if we accept the premise of Seminole.

Chief Justice Rehnquist: Right?

Mr. Brann: Except that when the debate over the... whether or not Article III created a forum in which you could abrogate sovereign immunity... and we have from the statements quoted in the briefs from Hamilton and the... and the other Framers, that it's inconceivable that that could happen.

They started with the premise...

Justice Souter: Well, and... and Hamilton... you're quite right, but Hamilton was also talking about a debate over Article III, wasn't he?

Mr. Brann: And the... but the debate over Article III only becomes critical at the moment that... if you start with the premise that you couldn't file suit in the State courts which, as we recall, were going to constitute the vast majority of the courts that existed... and so the fact that there is no one, federalist or anti-federalist, as Justice Kennedy alluded to, ever suggesting that one of the consequences of a... of a... of ratifying the Constitution is giving up that sovereign immunity in the State's own courts we would submit is... is fairly compelling evidence if that... that did not occur.

Justice Ginsburg: If we could go back to the... get down from the lofty Madisonian plane to the practical implications of what you're saying, I think you told me already that a private individual could not sue the State for a copyright infringement or a trademark infringement.

What happens to the FELA cases, the Jones Act cases, if we're dealing with a State-owned vessel or a State-owned railroad?

The workers can no longer sue for themselves.

Chief Justice Rehnquist: Is that...

Mr. Brann: Those cases would have to be analyzed on... on their own terms.

We think that the... the issue as to whether or not Congress has the power under the Commerce Clause to abrogate such immunity is missing, and therefore to the extent that they are solely derived from there...

Justice Scalia: I guess you can always ask a question like that where sovereign immunity is at issue.

I mean, by definition, it precludes claims that ought to be brought.

Mr. Brann: That is certainly...

Justice Scalia: Some people think sovereign immunity shouldn't exist for that very reason.

Mr. Brann: Well, that's not our view.

Justice Ginsburg: Is your... is that your answer now?

Because you started out to say, well, those cases have to be analyzed on their own.

Justice Scalia is suggesting, no, they don't, that... that it's always going to be... have to be a big brother suit, that is, the United States suing for the private individual.

Mr. Brann: We would submit not, first, because it's important to keep in mind that there is also the Ex parte Young injunctive actions, and we also have the circumstances where we consent.

Justice Ginsburg: Let me... let me home in on money suits, not injunctive suits.

To get money, the United States can get money for the sailors and for the railroad workers, but the railroad workers cannot do it for themselves.

Mr. Brann: If those are... if those statutes are passed and the sole source of that is under the Commerce Clause, then the answer to that is yes.

Justice Breyer: So, imagine if you were Rufus King or Charles Pinckney or someone who... I think one represented Maine.

They were at the Constitutional Convention.

You'd never have dreamt that the fair labor standards would have applied to... to State government, but that's what happened.

Now, my question is why would sovereign immunity be so important to you that of all important things in the Constitution to you, whether Massachusetts' constitution gives more protection to human liberty than the 10 amendments... if it does, by the way, Congress can abrogate that, can't it?

Mr. Brann: Justice Breyer, I think...

Justice Breyer: Well, I mean, Congress can... we're assuming Congress could abrogate, say, any extra protection that... that was important to Massachusetts, so it wrote it into its constitution.

Congress could abrogate that if it goes beyond the Federal Constitution, otherwise legitimate exercise, couldn't it?

Mr. Brann: If I follow... if I follow...

Justice Breyer: I mean, an otherwise... all right.

So, I'm just... I'm just trying to point out there were a lot of things that are important, that under Article I Congress could abrogate a lot of things.

Now, I say I'm going to make you, Rufus King, foresee everything.

All right?

Now, I just wonder why... what would be more important to you.

You foresee this future.

You say is sovereign immunity so important to you that I'm going to insist, say, in an environmental area, that Congress set up a Federal bureaucracy to tell the States everything about what to do, than let's say to devise some incentive type system that depends upon private citizens bringing sludge control suits in State courts.

In other words, why is it more important to you in your... in your federalist philosophy, that in the future the right way to do it is to set up Federal bureaucracies, but the wrong way to do it is to have individual citizens sue, say, incentive based suits in State courts?

You see, I'm saying...

Mr. Brann: The dividing...

Justice Breyer: I'm going on the idea of the lesser includes the greater.

Why do you want big brother, the Federal Government, breathing down your neck?

Why... why, if you are the most extreme federalist at that Constitutional Convention, are you going to insist upon the principle of sovereign immunity trumping everything on this, what seems a minor issue of bringing suits in State court?

Mr. Brann: But it wasn't a minor issue in the Constitutional Convention.

The ability of a private individual to bring a damages action against a State was very much on the minds of those who wrote the Constitution.

Chief Justice Rehnquist: You... Mr. Brann, you don't challenge the authority of the Federal Government to provide that Federal laws can be... lawsuits can be brought in State courts against presumably a railroad that's operating in Maine or some polluter that's... you say it just can't be brought against the State itself.

Mr. Brann: Correct.

And the... and there's... and there are...

Justice O'Connor: And I suppose you also concede that a State can waive sovereign immunity.

Mr. Brann: Certainly.

Justice O'Connor: And I suppose you also concede that States often do waive sovereign immunity for suits in their own courts when Congress passes some kind of economic incentive for them to participate in the program and to waive sovereign immunity.

Mr. Brann: And indeed...

Justice Breyer: Well, I mean...

Mr. Brann: we waive it in numerous circumstances as well.

Justice Breyer: Let me be straightforward about what's bothering me.

It seems that if you prevail, we're going to get some kind of hodgepodge, that there will be lots of Federal statutes that there's no problem with enforcing, and then there will be some that there is a problem with enforcing.

And there will be no rhyme nor reason to that.

Rather, in many instances, it will lead to more Federal intervention as they build Federal bureaucracies; in some, it won't.

So, what I don't see is, is it clear in the framework of the Convention that the Founders would have wanted that odd hodgepodge of enforceability?

Mr. Brann: But there are other factors that can be brought to bear in the... in those circumstances in that... in that you have, in addition to... in dealing with the Federal Government, there are obviously various political aspects of it as well.

And in terms of how it can be enforced and the mechanisms, it can be done in a number of different ways, as you... as you mentioned, Justice Breyer, incentives and the like.

There are other... there are other ways in which we can approach this problem, but the one way which we can't do it is to do it in a way that would violate what was the original bargain, if you will, when the States went into the... into the Constitution, which was that we were... although we were giving up our rights, if you will, and our sovereignty to some degree with regard to the Federal Government passing Federal statutes, which are otherwise valid, that did not carry with it necessarily... and indeed, it did not.

There's no one who suggested it carried with it the ability to abrogate sovereign immunity certainly in a State's own court.

Justice Souter: But isn't that true because no one suggested at the time that statutes of this sort would ever be passed?

You... you mentioned a moment ago in... in the earlier part of your answer to Justice Breyer that at the Convention there was great concern about individual citizens suing States.

That concern, if I understand it correctly... and you correct me if I'm wrong... was a concern about bringing common law actions, e.g., actions of debt, suing on the revolutionary debt.

Unidentified Justice: There was... there was no... there was no advertence whatsoever, to the best of my knowledge, to a suit brought... that might be brought by a citizen in a State court suing under a Federal statute passed validly under Article I.

Justice Souter: That was absent from the discussion, if I understand it correctly.

Mr. Brann: And that is true.

But we think it's important to remember, is that in a... in a system of few and enumerated powers, the question is, did the power to regulate commerce among the States also include this abrogation?

Justice Souter: Did... you might just as well ask the question, did the power to regulate commerce among the States, including subjecting the States to the Fair Labor Standards Act?

And if you had asked that question at the time of the Convention, the answer would have been, of course not.

That's ridiculous.

It's not ridiculous today, and the question is, once the power to act under Article I substantively is conceded, there's nothing left but, in effect, a... a totally secondary question...

Mr. Brann: We think...

Justice Souter: about enforcement.

And to say that the one does not follow the other seems very strange.

And I... as Justice Breyer's question suggested, I can't imagine why anyone would have been concerned about the enforcement power who conceded the power in the first place to legislate substantively.

And we have to accept that latter concession.

Mr. Brann: But, Justice Souter, I think, though, taken... and we agree with the... the precise example that you're using, the Revolutionary War debts... is that there was no one who suggested that Congress could pass a statute that would then make it possible to collect those debts which were very... the fact that... and the fact that no one every suggested that...

Justice Stevens: Right, but to the extent that that...

Justice Scalia: What did Hans v. Louisiana say about this subject?

Mr. Brann: I'm sorry.

Justice Scalia: What did Hans v. Louisiana suggest about this subject?

Did... did Hans suggest that the sovereign immunity that existed in Federal courts was only sovereign immunity against... against causes of action not created by the Federal Government itself?

Mr. Brann: No.

I mean, Hans... you know, it has a much broader scope.

Justice Souter: Then you're... then it seems to me you're back with the original problem of coherence.

If your argument is going to depend upon an overarching theory of sovereign immunity that is enforceable in the absence of any constitutional text, then I don't see how you can concede that the National Government could sue in a Federal court because that would be as clearly an abrogation of that sovereign immunity as... as a suit by the National Government or a citizen in a State court.

You can't have it both ways.

Mr. Brann: Well, we don't think that we're having to have it both ways.

What we think is that we... we have agreed by ratifying the Constitution that the super sovereign, the United States, can file suits to enforce action...

Justice Breyer: Where did they think... where did they think... to start... to end with the beginning question, where did the people at that time think that if Congress were to pass a legitimate law that bound a State government to pay some money to some people... where would have a law like that have been enforced?

There were no Federal courts.

Did they just think you couldn't enforce it or that there couldn't be such a law?

Mr. Brann: I think it's significant that no one suggested that they could pass such a law is the...

Justice Breyer: You're saying they couldn't pass the law.

Justice Stevens: So...

Mr. Brann: Well, but that... or that no one suggested that one of the things that Congress could do, in order to address this issue of the Revolutionary War debts, was pass a law that would then be enforceable.

Justice Breyer: But if they thought they could pass the law, they would have said you can't enforce it.

Mr. Brann: It may very well be.

Because it's inconceivable to the Framers that a State could be sued without its consent, we don't find it... which this Court has noted in... in not only the Tenth Amendment but also in the Eleventh Amendment context.

It is not surprising that this debate did not occur at the time of the Convention.

But...

Justice Breyer: So, there is no evidence in the debate or is there?

Or what would happen?

Mr. Brann: No.

All of the evidence runs to the following, which is that as the Framers state in numerous circumstances, that it's inherent in the nature of sovereignty not to be amenable to suit.

Now, they were... and they were obviously premised based on the... on the historical existence of the States' courts, and they... and they were looking to if you can't be sued in State court... I mean... then when we create the Federal courts, the Article III courts, does that change the calculus?

Justice Breyer: So, if there is no evidence at all about what the Framers thought would happen to enforce a law that Congress passed to bind the States, how could we know now that given the later... the greater, they wouldn't have conceded the lesser?

Mr. Brann: Because the... the immunity of a State from suit without its consent from a private individual was a bedrock principle that the Framers took to the Convention.

And...

Justice Souter: Didn't the Framers, by the same token, assume that there would not be commerce power statutes binding and running against the State in its capacity as a State?

Isn't that equally true?

Mr. Brann: I see that my time is expired.

Chief Justice Rehnquist: You may give a brief answer.

Unidentified Justice: [Laughter]

Mr. Brann: I think so.

[Laughter]

Rebuttal of Laurence S. Gold

Chief Justice Rehnquist: Thank you, Mr. Brann.

Mr. Gold, you have a minute remaining.

Mr. Gold: Two points, if I can.

First of all, the State continues to talk about giving up its sovereign immunity and what it agreed to.

The sovereign immunity the State had was premised on some legal understanding.

It was sovereign immunity in its own courts on rights under its own law.

We have created a new situation in the Constitution in which the State courts have a dual function, one which is different from the one it had before and where the State courts are dealing with laws of another sovereign which are binding without regard to the interests or desires of a State and where...

Chief Justice Rehnquist: Thank you, Mr. Gold.

The case is submitted.