The Eleventh Amendment Throws in the Towel

It looks like I’m not going to get any answers to my questions about the “11th Amendment” argument to “invalidate” Citizens United.

Last week, I discussed the Essential Information’s amicus brief, which was a complement to The Eleventh Amendment Movement’s (“TEAM”) amicus brief, both of which argued that the Eleventh Amendment deprived the Supreme Court of jurisdiction to review (and reverse) a Montana state court decision rejecting Citizens United. At the end of the day, my main observations were (1) that even if TEAM and Essential Information were 100% right about everything they said, the Montana law could still be reversed the moment Montana tried to actually enforce it, and (2) that even if the Supreme Court rejected Ex parte Young as a basis for jurisdiction in the district courts, it would be a huge break from precedent for the Supreme Court to decide that it did not have appellate jurisdiction over state court cases that (admittedly) could not be initially filed in federal court. (The TEAM brief did not address this second issue at all; the Essential Information addressed the issue, but tried to make it seem like prior cases favored their approach, which they did not.)

After my first post, TEAM said the Essential Information brief would answer all of my questions. The Essential Information brief did address (sort of) the issue of appellate vs. original jurisdiction, but it (understandably!) did not address the issue of a future enforcement action. In response to my analysis of the Essential Information brief, TEAM thanked me for the “considered analysis” (via Twitter) but added:

You’re not quite grasping fullness/impact of briefs. Will detail soon.

Well, that sounded good! If folks were devoted to somehow “overturning” Citizens United via the 11th Amendment, I hoped that the organizations behind that movement would have some answer for (1) what to do about the future enforcement action and (2) why the 11th Amendment should be extended to the Supreme Court’s appellate jurisdiction in such an unprecedented fashion? But never fear: “Will detail soon!” I specifically responded by telling the TEAM folks that I would be “on the lookout” for a responsive post regarding those two issues.

Sadly, it turns out there will be no details soon. I just got a message (also via Twitter) from TEAM, stating that the “11th Amendment briefs stand strong on their own” and that my proposed “[h]ypotheticals” (regarding the enforcement action?) are “moot.” According to TEAM, the burden is now on the Montana AG to argue these issues and that I should “Call him today!”

So I think that’s it. Unless and until I hear some good explanation for why this 11th Amendment argument is worth taking seriously in light of (a) the future enforcement action and (b) the Court’s appellate jurisdiction, I’m not going to be paying this issue much/any more attention. It was fun while it lasted!


7 thoughts on “The Eleventh Amendment Throws in the Towel

  1. Pingback: The [No Specific Day] Mash-up: June 1, 2012 | Ziff Blog

  2. If you check out this site
    your first analysis has been called fraudulent in recent comments due to its argument based on deleting the operative words form the quoted text of the 11th Amendment. The contention is you did this with less than scholarly probity as a basis for your following question begging statement of the law: “Even under the broadest reading of the 11th Amendment, the Amendment only divests federal courts of jurisdiction in suits initiated by a citizen against a state.”

    It is claimed that this statement is true enough of your doctored version of the 11th Amendment (initiated being a synonym for “commenced”), but that the original pre-Ziffed 1794 version of the Amendment also contains the words you deliberately omitted from the following phrase: ” “suit … commenced or prosecuted.” Guess which two words you must have thought had been written in invisible ink?

    Since the 11th Amendment term “prosecuted” has only two possible meanings, (inititating a State criminal prosecution or prosecuting an appeal or other subsequent procedure after commencement of a case by either party) both of which contradict your interpretation, how do you explain those meanings away instead of merely elipsis them away as you did.” Those meanings are clearly not synonymous with “intitiate.”

    When you undertake that explanation you might take into accoung the following two considerations: 1) The current Supreme Court has in its most recent decisions radically transforming 11th Amendment doctrine has been gradually restoring the literal meaning of its text, after having all but repealed it by ignoring that text; and 2) though an academic might enjoy litigating the hypothetical next case, no respectable litigator would ever do the same, nor should any public interest group seeking reform. It is sufficient to win one case at a time in the right direction even if academics who take no responsibility for the outcomes of their outdated theories are unhelpfully kibbutzing in the shadows.

    • Wow. “Fraudulent” and a “deliberate” omission. I would have just settled for “wrong.” Oh well.

      If you look at my series of posts on the subject, I started with a few possible reasons the 11th Amendment argument was not a good idea. One of them was the initiated/commenced/prosecuted point you’re discussing here. A separate question was whether (and to what extent) the 11th Amendment applies to the Supreme Court’s appellate jurisdiction. I note that question here: (in point #3). I then follow-up with additional research here: And then most thoroughly here, I discuss the lawyers’ arguments on the issue of appellate jurisdiction:

      Each of those links/posts thoroughly discusses your point about appellate jurisdiction. I didn’t make the distinction in the post the folks were discussing on that comment thread because it wasn’t relevant to my “who initiated what” point in the federal district court. But it was certainly relevant to the appellate point, and I directly addressed it there.

      For example, in the last post I linked above, I specifically state that your “reading of the 11th Amendment is certainly tenable, and maybe even better as a purely textual matter.” The problem, however, is that “it goes against hundreds of years of Supreme Court precedent.”

      And that’s the bottom line. The Supremacy Clause (and the Supreme Court’s unwillingness to cede its own jurisdiction) is not going to allow for an interpretation of the 11th Amendment that prevents most/all appeals from state supreme court decisions. Such a ruling would essentially shield all state court decisions from federal constitutional review.

      Lastly, my point was not that advocacy groups or actual litigators should not try to win the case at hand. I just thought that the folks at TEAM should be more direct about the obstacles they faced. Rather than painting a rosy picture of the 11th Amendment as a panacea, I think they should have been more forthright with their supporters that it was a long-shot. Maybe it was a long-shot worth taking! Maybe they wanted to lay the foundation for future cases! That’s fine. But I think their analysis on the issue was a bit thin, which I explain in my discussion of their brief here:

  3. Many thanks for your rejoinder. It seems worthwhile to settle this question that picked up in the other article I read.

    Other than not really explaining your doctoring of the 11th Amendment text to suit your argument as earlier discussed, after sampling your other references offered in defense, I see this is not the only alteration of text you have made in order to set up similar straw man arguments on this subject. Without have given more than a cursory reading, the following examples jumped out.

    You say that the ATP amicus briefs argued a principle that “prevents most/all appeals from state supreme court decisions.” But actually the briefs seemed to fairly clearly rely on Justice Kennedy and others to argue that the Montana case was fairly unique in satisfying the “significant sovereign interest” test. In fact a good portion of one brief was devoted to explaining just how the Montana case satisfies the test, and I could not find any text in the briefs arguing that “most/all appeals from state supreme court decisions” are precluded. The actual argument was that under the Court’s precedents, aside from the only possible meaning of the express text which you deleted in making your contrary argument (“or prosecuted”), the questions of whether or not a case is brought by way of appeal, or who originally commenced the suit simply makes no difference to the more modern textually-based analysis the Court has applied.

    That still leaves an overwhelming majority of cases that cannot satisfy the “significant sovereign interest” test, in addition to any cases that fall under the abrogation of the 11th Amendment by force of the Reconstruction Amendments, or sovereign suits such as in the cited Idaho case. These heads of jurisdiction fully discussed in the TEAM brief would permit a great number, if not almost all cases against states to be brought in federal court, just the opposite of your strawman.

    Another of your allegations that seems overstated is that “TEAM’s brief essentially asks the Supreme Court to overrule Ex parte Young” when it actually seemed to say something far more sophisticated than that, while also pointing out that the the Court may have actually already left it with no legs to stand on. The Brief first showed at length that the doctrinal bases for Ex parte Young have become extremely weak from the body blows delivered in recent decisions by Kennedy and Thomas and separate opinions by Roberts and Alito, and also since it has been generally demeaned by the Court as a “fiction.” Therefore what the TEAM brief “essentially asks the Supreme Court to” do is to strictly enforce the actual technical prerequisite of Young that a case be brought against an official in his individual capacity, which was not the case in the Montana suit. In other words, TEAM asked that Young be rigorously enforced rather than sloppily ignored, as the appellants had done. TEAM was clearly trying to win this one case on the narrowest possible grounds – and was not trying to make big counterproductive statements to attract attention from “supporters” that you amateurishly criticize them for not doing. TEAM’s argument was thus the opposite of your allegation above.

    Here is yet another oversight: “The rejection of Chisholm doesn’t say anything about the Supreme Court’s appellate jurisdiction,” suggesting that the constitution makes relevant distinction for appellate jurisdiction. But one of the briefs actually did forcefully argue just the opposite, that the 11th Amendment’s overruling of Chisolm says everything about appellate jurisdiction. The Brief pointed out that there is nothing in either the 11th Amendment or Article III that would support any distinction for these purposes between private suits against states under the Court’s original jurisdiction or its appellate jurisdiction. It notes that Article III could not support such a distinction because the appellate jurisdiction over any state appeal is not mentioned anywhere in Article III, and the 11th swept aside both appellate and original jurisdiction willy-nilly. The brief also throws in a kind of makeweight argument that since original jurisdiction is constitutionally based and its appellate jurisdiction is only statutorily base, the eradication of the first a fortiori includes the latter. Therefore any such distinction between the two is pulled out of thin air. You cite a case from the era when the Court specialized in such activity – the era of Lochner and Young. But Reese’s supremacy clause argument seems to have been swept aside, if not earlier, at leave by the time Kennedy reminding everyone that the 11th Amendment is also part of the Constitution and constitutes the text that is supreme under Article VI. As you know mere inventions from the Supreme Court are nowhere elevated as “supreme” in the text of the Constitution. The Brief also argues as a matter of statutory construction that the 11th Amendment came after the supremacy clause so if one alters the other, it would not be the earlier text doing the altering.
    The deeper I look into your writings on this subject the more holes and mischacterization I find. So it might be best to just stick to the original question than to continue peeling this onion, and simply request from you as the apparent sole source of confusion on the subject, a straightforward admission of at least the following: 1) that you expressly and clearly withdraw your textual argument premised on your Ziff-ized text of the 11th Amendment deleting the operative language, so that you do not mislead people who are not as familiar with the amendment or have as much time to decipher your actual position based on various cross-referenced somewhat opaque arguments in various separate blogs; 2) admit that your conclusions made in reliance on a 1900 case and a 1986 law review article, both dating from well before the recent reconstruction of 11th Amendment doctrine on the basis of its actual text as relied on by the Briefs, are too outdated to be of much use; and 3) in light of the above sampling, that you did not really read the amicus briefs with enough attention to be able to offer a considered critique, which would explain why your posts seem to suffer from a priori reasoning.

    • It seems we just disagree on the likelihood of the Supreme Court adopting the arguments you’re advancing. There’s a big difference between (a) not reading the amicus briefs closely and (b) reading them closely, but finding their arguments unpersuasive and unsupported. I’m not sure there’s much left to say on the matter.

      • I take that as a retreat without doing the right thing of confessing error on your way to the exit.

        We do not just disagree on the likelihood of the Supreme Court adopting anything. First, because the disagreement was not over ultimate conclusions but about your style of argument of routinely setting up straw men that misrepresented the text of the 11th Amendment, the Briefs, whatever.
        Second, this parting shot constitutes yet another misrepresentation of the argument that was actually made in the case. The argument here and elsewhere nowhere sought or contended, as far as I know, that the Supreme Court had to adopt its argument – that is just another straw man in which you seem to specialize. Four justices predictably did deny cert on the merits. The articles criticizing the Montana AG for making a serious litigation error discuss this strategy that the 11th Amendment argument was based on the likelihood that one justice of the 4-5 that subscribe to the premises argued by amici in the ATP case, not the “Supreme Court,” would adopt the 11th amendment argument that election integrity laws involve significant sovereign interests. This same strategy would seem to apply to the Courts restoration of a textually based interpretation of the 11th Amendment.

        Are you saying that you disagree with that proposition? Or just guessing on no articulated basis that all five of these justices would use situational jurisprudence to renounce their earlier opinions adopting the “significant sovereign interests” test and text-based readings?

        This does seem too important a question in the context of its possible relationship to a systemic corruption caused by the Court’s campaign finance decisions (the source of my own interest in the case) to have been subjected to your cavalier approach to ethical argumentation practice under the pretense of informed legal argument. You did mislead the Montana activist in the linked dialogue that occasioned this check-in with the source of error. Who knows how many others you have misled.
        Your unwillingness to either defend yourself or apologize for your gross errors displays the worst of that too common academic attitude that issues are interesting enough for occasional dilettante discussion, but not important enough to actually get right.

  4. Checking in after a year, to see if you have cleaned up your act and issued a formal retraction in light of another potential 11th Amendment case (the pending The Florida Bar case), I do find objectionable the line about “finding their arguments unpersuasive and unsupported.” What may be “unpersuasive” to someone who sets up the strawmen and doctored texts itemized above, and who completely misreads the Briefs as also demonstrated above is hardly a relevant argument.
    “Unsupported” however is a question of fact. The Briefs provide copious support for their arguments which you chose to ignore as described above. You did not make one single proof of any point in the brief being “unsupported.” Being a judicial supremacist ideologue who does not need relevant support for your ideology does not give you authority to change the facts about the well–supported arguments in the Briefs that the modern reading of the 11th Amendment could attract one of five conservative judges to have ruled in favor of Montana had the AG (now Governor Bullock not been an incompetent litigator.
    Still waiting for some expression of your own shame for any role your ignorant posts may have played in the Bullock fiasco.

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