The Eleventh Amendment and state sovereign immunity - Next Generation Bar Exam

1. Which Article I contexts are exceptions to the bar on abrogating state sovereign immunity?

   Bankruptcy, the federal war powers, and federal eminent domain. The states surrendered immunity in those areas in the plan of the Convention.

2. What is the status of a suit for damages against a state official in a personal capacity?

   It is not barred by state sovereign immunity. Damages would come from the official, not the state treasury, though qualified immunity may apply.

3. Under the Eleventh Amendment and Hans v. Louisiana, which suits against a state are barred in federal court?

   Private suits by citizens of another state, citizens of a foreign country, or the state's own citizens. Hans extended the immunity beyond the amendment's text to suits by a state's own citizens.

4. A plaintiff sues a state official in federal court to enjoin ongoing enforcement of a state law alleged to violate the First Amendment. On what basis may the suit proceed?

   Ex parte Young permits prospective relief against the official. The plaintiff seeks to stop an ongoing violation of federal law, not money from the state.

5. Which plaintiffs may sue a state in federal court despite state sovereign immunity?

   The United States and other states. The immunity bars private suits, not suits by other sovereigns within the federal system.

6. Under Edelman v. Jordan, what relief may not be obtained against state officials under Ex parte Young?

   Retroactive monetary relief paid from the state treasury. Ancillary costs of complying with prospective relief are permitted.

7. How may a state waive its sovereign immunity?

   By an unequivocal expression of consent to suit, including by removing a case to federal court. Lapides v. Board of Regents held that removal waives immunity in the federal forum.

8. Under Ex parte Young, what suits against state officials are permitted despite state sovereign immunity?

   Suits for prospective injunctive relief to stop ongoing violations of federal law. The official is treated as stripped of state authority when enforcing an unconstitutional law.

9. Under Pennhurst State School v. Halderman, what may a federal court not do under Ex parte Young?

   Enjoin state officials on the basis of state law. Ex parte Young vindicates federal law only.

10. Under which constitutional power may Congress abrogate state sovereign immunity?

    Section 5 of the Fourteenth Amendment, by unmistakably clear statutory language. Seminole Tribe v. Florida held that Congress generally may not abrogate under its Article I powers.

11. Under Alden v. Maine, what may Congress not do with its Article I powers regarding state courts?

    Subject nonconsenting states to private suits for damages in their own courts. State sovereign immunity extends beyond federal court.

12. Which governmental entities share a state's sovereign immunity?

    The state and its agencies acting as arms of the state, but not counties or municipalities. Local governments may be sued in federal court.

13. A former employee sues a state transportation department in federal court for backpay under the Fair Labor Standards Act, an Article I statute. What is the likely ruling?

    The suit is barred by state sovereign immunity. Congress could not abrogate the state's immunity through its Commerce Clause power.

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