Since I published last night’s post about The Eleventh Amendment Movement (“TEAM”) and Citizens United, TEAM has posted (and presumably filed!) its amicus brief. It’s available here (via Scribd). Before filing the brief, TEAM let me know via Twitter that my “current analysis is incomplete” — since I had not read the (at that time unavailable) brief — and that TEAM welcomed further discussion after I’d read the brief.
Well, I’ve read the brief, and here is my further discussion. [See update below…]
Not surprisingly, the TEAM brief does not address my “procedural posture” argument — that even if the 11th Amendment does bar the Supreme Court’s review of this case, the Montana law could still be struck down following the appeal of an enforcement action. The decision not to address that argument is not an oversight or a mistake by TEAM; it is entirely proper. The hypothetical enforcement appeal is not before the Supreme Court and it would therefore be silly to spend time in the brief talking about some imagined potential case.
But while the Supreme Court may not care about the potential for a future enforcement appeal, folks supporting TEAM or its efforts should care. Since TEAM’s overall plan is to effectively overrule Citizens United, I’d be interested in hearing how it plans to deal with a future enforcement appeal if the Supreme Court does indeed decline to hear the Bullock appeal.
On the merits, TEAM’s brief essentially asks the Supreme Court to overrule Ex parte Young. And that’s fine. There are good arguments for overruling that case and perhaps some Justices would be willing to sign on.
However, the brief does not directly address (unless I just missed it) the question I posed regarding how the 11th Amendment applies to the Supreme Court’s appellate jurisdiction. TEAM discusses Chisholm and its subsequent overruling by the enactment of 11th Amendment as expressing the proposition that the Constitution does “not allow the Supreme Court to entertain a suit by a private citizen against a sovereign state without its consent.” But Chisholm was a case filed in the Supreme Court under its original jurisdiction waaaaaay back in the day when there was such a thing. The rejection of Chisholm doesn’t say anything about the Supreme Court’s appellate jurisdiction.
Well, since the TEAM brief did not address the question, I figured I’d poke around a bit to see if I could find the answer myself. And I think I did, in a Note by Anthony J. Harwood in the Fordham Law Review entitled A Narrow Eleventh Amendment Immunity for Political Subdivisions: Reconciling the Arm of the State Doctrine with Federalism Principles. I’m not going to tell you I read the whole thing, but I did read a section regarding the history of 11th Amendment jurisprudence, and it contains this discussion:
In Smith v. Reeves, [178 U.S. 436 (1900),] the Court again addressed the question of whether a suit by a citizen against his state was within the appellate jurisdiction of the Supreme Court. . . . The Court stated that the state’s eleventh amendment immunity was:
subject always to the condition, arising out of the supremacy of the Constitution of the United States and the laws made in pursuance thereof, that the final judgment of the highest court of the State in any action brought against it with its consent may be reviewed or reexamined, as prescribed by the act of Congress, if it denies to the plaintiff any right, title, privilege or immunity secured to him and specially claimed under the Constitution or laws of the United States. [Quoting Smith]
. . . . Therefore, Smith represents a clear statement of the rule that the eleventh amendment does not restrict the Supreme Court’s appellate jurisdiction over suits against the state. Since Smith, the Supreme Court has exercised appellate jurisdiction over numerous suits by persons seeking to enforce federally protected rights against states.
That sounds to me like whatever restrictions the 11th Amendment places on federal courts’ original jurisdiction, and even if the Supreme Court overrules Ex parte Young, nothing would prevent the Supreme Court from reviewing the Montana Supreme Court’s decision regarding the application of a federal constitutional right. Right?
I would be interested in hearing TEAM’s thoughts on whether/why that’s not right, or what I’m missing.
[UPDATE at 2:25pm: I got a message from TEAM informing me that (a) they are filing a second “companion” brief tomorrow and (b) the companion brief will answer all of my questions. So I’ll be on the lookout for that! Until then, knowing there is more coming, I’ll stay quiet to await TEAM’s responses.]