Allen v. Cooper is an excellent opinion for teaching Sovereign Immunity

Justice Kagan pithily summarized Boerne, Florida Prepaid, and Kimel


The "congruent and proportional" test is one of the toughest doctrines to teach in constitutional law. The interplay between Boerne v. FloresFlorida Prepaid, and Kimmel is complicated and gives students difficulties. I would highly recommend Allen v. Cooper as a good teaching case. Justice Kagan's majority opinion is tight, and pithily summarizes all of the leading doctrines.

Consider these paragraphs:

For an abrogation statute to be "appropriate" under Section 5, it must be tailored to "remedy or prevent" conduct infringing the Fourteenth Amendment's substantive prohibitions. City of Boerne v. Flores (1997). Congress can permit suits against States for actual violations of the rights guaranteed in Section 1. And to deter those violations, it can allow suits against States for "a somewhat broader swath of conduct," including acts constitutional in themselves. Kimel. But Congress cannot use its "power to enforce" the Fourteenth Amendment to alter what that Amendment bars. Kimel (prohibiting Congress from "substantively redefin[ing]" the Fourteenth Amendment's requirements). That means a congressional abrogation is valid under Section 5 only if it sufficiently connects to conduct courts have held Section 1 to proscribe.

To decide whether a law passes muster, this Court has framed a type of means-end test. For Congress's action to fall within its Section 5 authority, we have said, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Boerne. On the one hand, courts are to consider the constitutional problem Congress faced—both the nature and the extent of state conduct violating the Fourteenth Amendment. That assessment usually (though not inevitably) focuses on the legislative record, which shows the evidence Congress had before it of a constitutional wrong. See Florida Prepaid. On the other hand, courts are to examine the scope of the response Congress chose to address that injury. Here, a critical question is how far, and for what reasons, Congress has gone beyond redressing actual constitutional violations. Hard problems often require forceful responses and, as noted above, Section 5 allows Congress to "enact[] reasonably prophylactic legislation" to deter constitutional harm. Kimel; Boerne (Congress's conclusions on that score are "entitled to much deference"). But "[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Boerne. Always, what Congress has done must be in keeping with the Fourteenth Amendment rules it has the power to "enforce."


And, I commend Justice Kagan for resisting any pirate puns, until the penultimate page of the majority. And it was a gem:

Congress acted before this Court created the "congruence and proportionality" test. For that reason, Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.

Alas, Justice Breyer's pirate reference falls flat.

One might therefore expect that someone injured by a State's violation of that duty could "resort to the laws of his country for a remedy," ibid., especially where, as here, Congress has sought to provide one. Or more concretely, one might think that Walt Disney Pictures could sue a State (or anyone else) for hosting an unlicensed screening of the studio's 2003 blockbuster film, Pirates of the Caribbean (or any one of its many sequels).


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  1. The most interesting thing is the two concurrances. Thomas says if Florida Prepaid was in error they should go back and fix it regardless of stare decisis, but they didn’t get it wrong so he concurs.

    Breyer said they got Florida Prepaid, and Florida Seminole Tribe v Florida wrong, and hints they should be revisited, but stare decisis controls this case so he concurs too.

    1. Thomas also said something that warms my heart. That IP isn’t actual “property”. It isn’t. It shares some characteristics with property, but it is subject to all sorts of regulation that wouldn’t be acceptable with tangible property.

      On the other hand, Thomas’ view of stare decisis is garbage and completely contrary to the understanding of the Framers he always promotes.

      Having said that, I agree with OP that the majority opinion is quite good.

      Also it is a nice rebuke to the sort of hipster legal realism that says SCOTUS justices care about nothing but outcomes. The Court has stuck to state sovereignty (a doctrine I don’t particularly care for) even when it screws over big business interests. I.e., they are doing actual law, not their policy preferences.

      1. “On the other hand, Thomas’ view of stare decisis is garbage and completely contrary to the understanding of the Framers he always promotes.”

        Would you care to elaborate?

        1. Thomas would more readily overturn precedent if it—in his view at least—cuts against original meaning. I am more conservative and sympathetic to originalism than Dilian Esper likely is but I am uneasy about J. Thomas more iconoclastic jurisprudence. I prefer Alito/Kavanaugh

          1. Its not so much error devining “original meaning” of statutes that is objectionable, but error devining original meaning of the Constitution.

            For instance if SCOTUS gets the WOTUS rule wrong, then congress can revise the statute and get the Supreme Court back on track, so I support complete deference to stare decisis there. But when interpreting constitutional provisions, like say Dred Scott, well then in that case it took a war to overturn an obvious error. The Supreme Court has a lot of doctrines giving special status to constitutional rights, strict scrutiny for instance, that are not applicable to purely statutory questions. There should be strict scrutiny applied to erroneous decisions that implicate the Constitution as well.

            1. In either case, there are substantial prudential and historical reasons for a rule of stare decisis. Thomas simply rejects his actual job, which is to find consensus and promulgate doctrines that lower courts, lawyers, and clients can rely on. And that basically makes him an irrelevant Justice in a lot of cases.

  2. The 11th amendment does not bar a suit by a citizen of a state against the state. Therefore, Allen had a right to sue North Carolina.

    There is also no exception for judicial concoction of, and subservience to, doctrines abrogating the same.

    Moreover, policy wise, it is far better to have redress for injuries done by states than to genuflect at the altar of their sovereignty.

    1. The Opinion of the Court was not based solely on the 11th Amendment; it was also based on the 10th Amendment. The Federalist Papers guaranteed to the States that they would retain their sovereign immunity when it came to the federal courts.

      The Supreme Court rejected this guarantee in Chisolm v. Georgia (1793) when it came to the Diversity Clauses in Article III. The 11th Amendment overruled Chisolm and was meant to supplement the 10th Amendment regarding the federal courts, but was not intended to limit each State’s sovereign immunity.

    2. The 11th Amendment is an interestingly worded amendment because it doesn’t purport to change the original Constitution by adding Sovereign Immunity. Instead, it directs Judges not to interpret the Constitution in a particular way (“The Judicial Power shall not be construed…”). In other words, to the extent Sovereign Immunity exists, it exists independent of the 11th Amendment but the 11th Amendment directs that it isn’t abrogated in diversity suits against States.

      I personally think there’s a strong argument that Sovereign Immunity was abrogated for arising under jurisdiction just like it has been under the 14th Amendment. States still retain sovereign immunity in their own courts and for lawsuits under state law (for example, diversity jurisdiction cases) but not for lawsuits concerning Federal law because states ceded their sovereignty to the extent necessary to empower the Federal government with enumerated powers.

      1. What you “personally think” matches what Chief Justice John Jay and Justice James Wilson said in Chisholm v. Georgia. They said that the States had no sovereign immunity after the Constitution’s adoption, which included arising under jurisdiction. Of course, the 11th Amendment was adopted to repudiate all the Chisholm majority said.

        1. Except I don’t think they have no sovereign immunity. I think there’s every reason to believe they retain their own sovereign immunity with respect to their own citizens, with respect to other states, and (consistent with the 11th Amendment) with respect to citizens of other states for claims under state law. But I do think they gave up sovereign immunity when it comes to Constitutional prohibitions to the states and for any other power ceded to the Federal government under the Constitution.

  3. Re: “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”-

    I think I know what the Court meant by “proportionality” (namely, that strong means must be justified by large injuries). Does “congruence” add anything, and if so, what?

    1. arch1, iirc, it has to be related to the problem their addressing.

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