Supreme Court

Hyatt, the Constitution, and the Common Law

A new decision on sovereign immunity, and what it means for originalists.

|The Volokh Conspiracy |

Today the Court decided FTB v. Hyatt, overruling Nevada v. Hall and declaring that states have sovereign immunity in other states' courts. The majority opinion has gotten some rather pointed criticism—largely because it didn't rely on any particular clause of the Constitution, but rather on general structural concerns.

In my view, Hyatt is an unfortunate opinion—not just because some of its reasoning might be questioned, but because it makes the job of defending originalist doctrine harder. At the same time, though, it may have a silver lining: encouraging a slow, possibly generational shift in legal conservatives' position on the common law.

A fair amount of what the Court says about the history seems correct. On the Court's view, states enjoyed sovereign immunity at the Founding; at common law and under the law of nations, they weren't amenable to judicial process without their consent. While the Constitution abrogated some of that that immunity in federal court (eg, original-jurisdiction suits between states), it didn't abrogate it entirely (which Chisholm misunderstood, and which the Eleventh Amendment reconfirmed). State sovereign immunity largely survived Article III.

So far, so good. But note that none of this addresses whether another state, like Nevada, can abrogate California's immunity in its courts, just as it might abrogate any other rule of common law. As Will Baude and I argued in our brief, if the immunity really is a rule of common law and the law of nations—left intact by Article III, and maybe even beyond the limited powers of Congress to alter—a Nevada court would still have to obey a Nevada statute.

That said, though the Constitution lacked any substantive rule on this point, it did offer a powerful procedural protection: the forum state's inability to get its judgments enforced in other courts. For the first hundred years of the Republic, federal and state courts routinely enforced the common-law and law-of-nations limits on personal jurisdiction and amenability to suit—not by inventing some affirmative constitutional bar, but simply by disregarding judgments that broke the rules (as the Full Faith and Credit Clause permits).

The Hyatt Court didn't see it that way. Instead, it held that "the Constitution affirmatively altered the relationships between the States." Because each state retains its "equal dignity and sovereignty," the Constitution "embeds interstate sovereign immunity within the constitutional design." The Court also cited a grab-bag of obligations imposed on the states (privileges and immunities, full faith and credit, the denial of war powers or embargoes, etc.), "confirming that [the states] are no longer fully independent nations." But none of this speaks to the specific question at hand, which is about whether they can abrogate the immunity of other states along with their own. Indeed, it may be less reminiscent of the Court's recent moves toward textualism, and more reminiscient of earlier efforts to locate constitutional rules in any of a number of clauses at once.

I happen to disagree with the Court's analysis in Hyatt on the merits, but that isn't really the point. (The line between 'Nevada may not hale California into its courts' and 'Nevada can go ahead and try, but everyone will just ignore their judgment at the enforcement stage, and also federal courts might be able to enjoin enforcement in appropriate circumstances' is pretty thin, and courts have mishandled more obvious and consequential distinctions before.) My worry is that a decision like this one, which attributes implicit rules to the Constitution that no one at the Founding seems to have found there, does more to bring careful methodology into disrepute than a variety of less serious errors that courts might make.

Sovereign immunity is really hard; it involves plenty of precise distinctions between what was settled by the text and what was left up to preexisting rules. And because it involves so many preexisting rules, it's easy to caricature the doctrine as "conservatives making things up outside the text."  As someone who thinks the Court ought to pay a lot of attention to text, but also that they've mostly been right about sovereign immunity doctrine thus far—a "rara avis," like David Currie or Will Baude—taking care with these distinctions is especially important.

So why were the right-leaning members of the Court willing to write (or sign off on) a relatively un-textualist opinion? I don't think it's as reductionist or conspiratorial as "conservatives like sovereign immunity and liberals don't." I think the Justices in the majority joined the opinion because they believe it to be correct. Consider an extended passage toward the end of the opinion, which described the many interstate cases in which no state has power to conclude the claims of another (border disputes, water rights, etc.). Surely something provides that states can't declare by statute that they own New Jersey, or have better water rights than their neighbors, and so on. Why wouldn't that same something prevent Nevada from concluding California's claims here? If structural inferences are ever justified—and sometimes they are—why would they be unjustified when it comes to doctrines of sovereign immunity, in which the Founders also believed?

Of old, the mysterious "something" in all this would have been doctrines of general law—rules of common law, equity, the law of nations, conflict of laws, and so on, which governed matters as to which federal law was absent and no state was competent to legislate. These included, among other things, the rules of personal jurisdiction and judgment recognition that would have kept the states safe from each others' courts. (See also Eugene's point, about the Court's reliance on "established law and practice" respecting such topics as judicial review, executive removal, etc.)

As it happens, we've had 80 years of Erie trying to persuade us that general law can't exist, and that unwritten law generally is the preserve of willful judges—whether as a matter of "federal common law" invented by federal judges, or of state common law invented by state judges, for "there can be no other law." So it's not surprising that, faced with a problem to which the Founders obviously had some answer, and deprived of the relatively straightforward and intuitive vocabulary in which that answer might originally have been framed, we get structural reasoning instead.

The silver lining in all this, though, is that this view may be starting to recede. The scholarly consensus against Erie seems to be building. The younger generation of originalists, textualists, etc., seems increasingly comfortable with our historical reliance on general law, and increasingly attentive to the role that this law plays in a divided system of federal and state courts. Decisions like Hyatt might, in the end, be some of the last of their kind: if the alternative is an unwritten "equal dignity" clause, general law starts to look pretty good. 

NEXT: Kavanaugh v. Gorsuch

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “because it makes the job of defending originalist doctrine harder”

    Also making the defense of originalism more difficult:

    (1) The hypocrisy of originalism’s heroes becomes evident when a point of right-wing importance is at stake.

    (2) Originalism’s fans tend to be the losers of America’s culture war.

    (3) The American electorate is becoming steadily less rural, less white, less backward, less religious, and less bigoted. Bright flight is emptying and crippling the communities on which originalism’s proponents depend for an electoral coalition.

    (4) Most educated, informed Americans won’t take a legal concept seriously if it is younger than Kim Kardashian and less popular than any Kardashian.

    I’m sure it’s a big hit at Liberty, Hillsdale, Ave Maria, Grove City, and Regent, though. Jerry Falwell Jr. must be a huge originalist.

    1. You better go a bit slower, Rev., with your drooling rants. If you keep turning the idiot meter up to 11 now, you won’t have anywhere to go when Trump wins reelection in 2020.

      1. Be careful with insults, lest the Volokh Conspiracy Board of Censorship object to your lack of civility.

        Unless you figure your right-wing credentials protect you from the threat of censorship by the Volokh Conspiracy.

        1. “Be careful with insults, lest the Volokh Conspiracy Board of Censorship object to your lack of civility.”

          If that was the case, you would have been the first to be banned. You very seldom post anything other than ad hominem attacks and insults.

          1. Be charitable, Matthew. The Rev.’s inane rants are the funniest thing on this site. We wouldn’t want to lose the comic relief.

            1. Sorry, I don’t find him the least bit amusing.

              1. Why do you read what he writes?

    2. I am having a hard time understanding why a more simple structure could not have been followed had the decision to decide on initial meaning(or thereabouts) over precedent had already been concluded worthwhile.

      It seems to me that Article III.2 of the constitutions clearly places into federal court the jurisdiction for certain named “cases and controversies” between a short list of situations and parties.

      When those cases and controversies are named to be under the power of federal courts, does it really require a “penumbra” and “spirit of the document” reading to conclude that it is a ~move~ not an “also” ? Isn’t the language of artricle III.2 enough for an Occams Razor and a “what else could this language have meant because if they meant more they would have said more” logic to say “all disputes about admiralty or between states etc were made transfered to the ~exclusive~ authority of federal courts?

      This wasn’t about “sovereign immunity” at large, but specific exceptions to sovereign immunity where the federal goverment gained authority.

      Section 2
      1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

      —to all Cases affecting Ambassadors, other public Ministers and Consuls;
      —to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;
      —to Controversies between two or more States;
      —between a State and Citizens of another State;1
      —between Citizens of different States,
      —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

      OK, now, after the constitution seems to clearly move all disputes in those matters, out of the state courts and into federal courts, the 11th amendment comes along.

      The constitution in article III.2 has already Banned citizens from suing in state courts by instead forcing them to sue in Federal courts

      The 11th amendment Then bans those suits in Federal courts too, providing no direct redress for citizens vs the various states.

      The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

      How can we read the 11th amendment as transfering back to states that which was moved to the federal courts? That plain language does not move anything to state courts – it merely bans the federal courts.

      Between the two it disallows citizens to bring suits against other states.

      That is not necessarily a flaw or an omission at all but an affirmative rule to require citizens to petition their own state to take action against another state in federal courts on a peer to peer basis.

      Whether or not employees of one state acting within the boundaries of another state should be treated as individuals independent of their employer or not does seem worthy of some dispute – a judgment against the state of California employees doing the wrongs could be enforced perhaps – but only enforced if the state of Nevada took action against the state of California directly to seek redress in federal court … not a citizen to state action.

      Anyway. The plain language seems far more clear to me.
      1) some cases and controversies were made the domain of Federal courts only by III.2
      2) Amendment 11 in turn banned one type of those that were moved to even being heard at that federal level.

      Forget sovereign immunity – whether that was the reasoning behind the rules prior to the constitution the constitution itself clearly clarifies and amends that common law in the named situations above ?

      (sorry this got posted in the wrong thread before, it belongs here)

      1. It seems to me that Article III.2 of the constitutions clearly places into federal court the jurisdiction for certain named “cases and controversies” between a short list of situations and parties.

        “Jurisdiction” != “exclusive jurisdiction”

  2. The connection to Erie seems awfully attenuated. And wrong. This post was very difficult to follow, and I chased several of the links. And the conclusion so weakly worded that it fades. Maybe some generational change? Sure. That will happen.

  3. “The younger generation of originalists, textualists, etc., seems increasingly comfortable with our historical reliance on general law”

    Entropy does always win in the end, after all. But that’s no reason to celebrate the decay.

    1. Entropy’s win can be held off as long as the decision is reversible.

    2. “But that’s no reason to celebrate the decay.”

      They are more comfortable with it because they want to get rid of liberal errors and now have the power to do so, or so they think, with a supposedly solid conservative majority on the S/C and large numbers of conservatives in the lower courts.

      I hope they are right but fear they are not.

  4. One fun thing about all of this sovereign immunity stuff is that the British common law could not determine one nagging elephant in the [or at least my] room, and that is the conundrum of popular sovereignty. Sovereignty for British common law lay in the King, or the King in Parliament [which does not apply here], but here it lies in the people. So, if a state can assert freedom from attack by another state on “sovereignty” grounds [dubious], then individuals should be able to rebuff attacks by their/our government/states because we, not they, are sovereign. The mind reels.

    1. On the off chance that you’re both one of those sovereign citizen weirdos and amenable to reason:

      Just because sovereignty lies with the people (collectively!), doesn’t mean that “individuals should be able to” anything.

    2. Sovereignty of the people refers to the root of authority of governments stemming from the collective consent of the governed. Extrapolating that first into sovereignty of individuals, and then to sovereign immunity of individuals, is the pastime of people who find significance in unusual capitalization and fascination in the fringes on flags.

  5. The big issue which was never discussed in Hyatt concerns the fact that some of the torts allegedly committed by the Franchise Tax Board occurred in Nevada, not in California. The FTB sent its agents into Nevada to investigate Hyatt, and in the course of that investigation those agents rummaged through his trash, harassed his family and neighbors, and otherwise acted like jackasses. It’s one thing to grant California sovereign immunity for its conduct or the conduct of its agents within its own borders; it’s quite another thing to argue that California, acting through those agents, should have sovereign immunity for tortious acts in other states. When California sends its agents into another state, it strikes me as entirely appropriate to allow that state, Nevada in this case, to hold California’s agents liable for tortious acts within that state. Anything less really diminishes the sovereign authority of Nevada.

    1. It wasn’t discussed in this case because it was the subject of previous Supreme Court rulings between Hyatt and the FTB. Also, the question in this trip to the Supreme Court was simply whether Hall v. Nevada should be overruled.

      1. Yes, and in those cases Hyatt’s ability to sue the FTB in Nevada for its Nevada torts was upheld. Now that ability, AND Nevada’s authority to protect its own citizens from the tortious conduct of another state which occurs within Nevada’s own borders, has been erased.

  6. The court says only of these types of cases have been decided since Hall v. Nevada, but what about public colleges and universities? Aren’t they public agencies subject to state sovereign immunity that routinely engage in conduct outside/across state lines? Don’t some public universities have hundreds of millions or even billions of dollars worth of patent portfolios? There’s been a lot of controversy about state sovereign immunity and copyright enforcement/violations. Seems like SCOTUS just gave public universities a blank check to engage in bad faith conduct outside their borders when licensing or infringing patents and copyrights.

    1. That ship sailed a long time ago. You cannot sue a state university for patent or copyright infringement in federal court.

      1. But your state can sue that University for you I believe.

        If you petition your state attorney general to sue the other state on your behalf, I think that would work.

        That would require you, as a citizen of your state, to elect an attorney general and legislatures to make laws permitting the AG to act upon your states citizens grievances in federal court on a peer to peer basis. There is good public policy to that too IMO, as states would negotiate rules between each other rather than being at the whim or taking the expense of protecting their citizens in federal court.

        1. Strikes me that that would be a nightmare, both for those with legitimate cases and for the AG’s, who would spend their time refusing requests from crackpots.

          I’ll add that, as a non-lawyer, I don’t get the justification for sovereign immunity. Doesn’t it derive ultimately from a privilege enjoyed by the monarch?

          But our sovereign is not a monarch, so why carry it over?

  7. For the first hundred years of the Republic, federal and state courts routinely enforced the common-law and law-of-nations limits on personal jurisdiction and amenability to suit—not by inventing some affirmative constitutional bar, but simply by disregarding judgments that broke the rules (as the Full Faith and Credit Clause permits).

    I am trying to understand how this works. It is one thing to refuse to recognize a judgment where the other forum lacked personal jurisdiciton (which today is a Due Process issue) or where the judgment itself violates the local state’s public policy.

    But here the issue is whether one state (CA) is subject to the jurisdiction of another state (NV) or whether that is barred by sovereign immunity. So if the answer is the Constitution permits such an exercise, I don’t see how the Full Faith and Credit Clause allows one state to refuse to recognize the judgment of the other. If there is no sovereign immunity, then what invalidates the judgment?

    1. By making an exception to sovereign immunity you don’t eliminate sovereign immunity!

      I don’t mean to be ad-homin here and I am willing to be corrected, but a conclusion that is formed that way seems fallacious logic to me.

      The Constituion in III.2.1 moves authority of disputes from state court to federal court without necessarily eliminating or confirming the broader concept of immunity. The hasty adoption of the 11th Amendment then eliminates a loophole that would have weakened immunity by allowing citizen suits against states – the amendment eliminates that right for citizens to sue in federal court too (restoring any doubt of sovereign immunity from direct citizens)

      Yes, by making the federal government the arbiter between states, it partially reduces sweeping immunity to some degree or another, but that transfer of authority does not mean that the federal courts MUST do away with immunity entirely – perhaps the courts will only intervene where such matters are regarded as US government priorities and leave immunity and disputes that do not affect the nation at large unsettled by protecting immunity except where pressing national policy requires it ?

      Exceptions do not negate a general rule.

      When you make an exception you actually confirm the rule because otherwise you would merely get rid of the rule in a sweeping way if that were your intent.

      1. “The hasty adoption of the 11th Amendment then eliminates a loophole that would have weakened immunity by allowing citizen suits against states ”

        11A does not forbid all citizen suits against state government in federal court.

        What it forbids the federal courts from considering is suits against state A by citizens of state B. The federal courts can still hear cases brought by citizens of state A against the government of state A.

  8. Oh no you don’t — here’s how we get a return to the text: Let’s shove a little conservative judicial lawmaking down their throats!

    A right to taxpayer-funded gun clubs, guns and ammunition — it’s there! Penumbras and all!

    A right to life for a fetus — right their in the 14th Amendment! I see it clearly.

    1. FWIW, I don’t think any federal court has ~outlawed~ abortion based upon declaring a fetus as a citizen due the full protection of the law or any other federal court derived ban on abortion.

      Some state courts may have upheld their own state laws defining life that way and some US courts may have upheld state laws restricting abortion but none of that is finding a right or a wrong to abortion in the US constitution.

      The constitution leaves things like murder up to the states. While I am all for leaving questions of life and death of children up to their parents, beyond even the definition of life of a fetus or not, it does seem to be a matter of state law to define specifics. Rights to life and liberty only are limitations on the government action – whether or not a state sanctions self defense or calls a killing an accident etc is up to the states.

      1. You miss my point. I believe the only way to stop progressives is to use their own weapons against them.

        Democrats were fine and dandy with “independent” prosecutors (unconstitutional I believe) until they were used against Bill Clinton.

        As distasteful as it is, I see very little choice.

        1. Yes, using 14A to protect the unborn child is the only way to stop the death merchants in states like NY which has abortion on demand until the actual birth.

          1. I find it ironic modern Democrats “un-personing” anyone who supported slavery … if we hadn’t killed 300,000 of them in the war and disenfranchised most of the rest, the 13th, 14th and 15th would have NEVER passed.

            The more things change …

          2. New York does not have “abortion on demand until the actual birth.”

              1. Bullshit to you.

        2. “I believe the only way to stop progressives is to use their own weapons against them.”

          The only chance to stop progressives in America would involve conservatives perfecting a machine that mass-produces poorly educated, religious, unskilled, broadly intolerant, easily frightened, backward, southern, rural, white, elderly males. If Republican lawyers were then to figure a way to register the newly minted conservatives to vote, the liberal-libertarian mainstream could have quite a problem on its hands.

          Otherwise, the continuing improvement of the American electorate indicates that America will continue to progress against the preferences and efforts of conservatives.

          1. Did somebody fart?

            *sniffs … wrinkles nose.*

      2. “I don’t think any federal court has ~outlawed~ abortion based upon declaring a fetus as a citizen due the full protection of the law or any other federal court derived ban on abortion.”

        Courts have declared that a fetus is due the full protection of the courts. What they haven’t done is decided that that protection supersedes all other considerations. Way back in 73 they balanced the two rights… the mother’s right to decide what (if any) medical procedures were performed on her body, against the right of the fetus to live. All rights have limits, and those limits exist where the rights of one individual interact with the rights of another.

  9. […] the court had adduced the provisions to fill a gap in its historical argument. Commentators have noted that Hyatt’s loose structural reasoning seems at odds with originalism and even resembles the […]

  10. […] the court had adduced the provisions to fill a gap in its historical argument. Commentators have noted that Hyatt‘s loose structural reasoning seems at odds with originalism and even resembles the […]

  11. I have a question about why this case was even decided. In Hyatt II, the Supreme Court split on the question of whether to overrule Hall and hence the decision was affirmed by an equally divided court.

    While this doesn’t create a precedent for future cases, why doesn’t it create law of the case for the same parties and dispute? If a case gets to the Supreme Court multiple times, can the same parties keep going back whenever a Justice changes in between in the hopes that this bite of the apple, the outcome might be different? Isn’t that what law of the case is supposed to prevent?

    Or is affirmance by an equally divided court treated as if the Supreme Court had done nothing, as if it had dismissed the appeal and never heard it? If that’s the case, why have the category of affirmative by an equally divided court at all?

    1. While this doesn’t create a precedent for future cases, why doesn’t it create law of the case for the same parties and dispute? If a case gets to the Supreme Court multiple times, can the same parties keep going back whenever a Justice changes in between in the hopes that this bite of the apple, the outcome might be different? Isn’t that what law of the case is supposed to prevent?

      Addressed in the opinion: Hyatt waived that argument by failing to raise it in his BIO.

  12. can the same parties keep going back whenever a Justice changes in between in the hopes that this bite of the apple, the outcome might be different?

    My wife’s ex kept going back to different judges until he found a judge that would allow visitation despite credible accusations of molestation — lawyers (and judges) are evil.

    Shakespeare was right …

    1. “Shakespeare was right …”

      He was, but he didn’t say what you think he did.

  13. […] the court had adduced the provisions to fill a gap in its historical argument. Commentators have notedthat Hyatt’s loose structural reasoning seems at odds withoriginalism and even resemblesthe […]

  14. […] Roe[v. Wade], particularly as states enact draconian restrictions on abortion.” At Reason’s Volokh Conspiracy blog, Stephen Sachs suggests that although “Hyatt is an unfortunate opinion—not just because […]

  15. Not as egregiously bad or significant as Reynolds v. Sims (1964), but they best be careful with applying general principles that sound good in such blunt fashion.

  16. If memory (and a quick Google to confirm) serves, customary international law is one of the few permitted enclaves of federal common law, so the logic isn’t as unheimlich as the name “structural” might imply.

    The distinction the distinction between common law and constitutional law is a bit hard to see sometimes. Like comparing apples to fruits.

Please to post comments

Comments are closed.