Sovereign Immunity: Supreme Court Near Decision

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.

The Court, prior to Seminole, had ruled only twice, once in the context of Section 5 of the Fourteenth Amendment and once under the Interstate Commerce Clause, that Congress had the power to abrogate state sovereign immunity to permit private suits in federal courts against a state to consider federal questions, consistent with the Eleventh Amendment. Among the rationales for the case reconciling the Fourteenth and Eleventh Amendments was that the Fourteenth Amendment was subsequent in time and intended to reduce state sovereignty. With respect to the decision under the Interstate Commerce Clause, Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), a plurality of the Court found that the states ceded their sovereign immunity when they gave Congress plenary power to regulate interstate commerce in Article I of the Constitution. The majority in Seminole acknowledged that the Indian Commerce Clause in Article I, if anything, gave even broader power to Congress in the area and if Union Gas was properly decided, its rationale would necessarily apply under the Indian Commerce Clause. As the Seminole majority believed Union Gas was inconsistent with Supreme Court precedents interpreting the Eleventh Amendment going back to 1890, they expressly overruled Union Gas.