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88 Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 283, 284, 285–86 (1973). 89 Edelman v. Jordan, 415 U.S. 651, 672 (1974). clear statement rule requiring that congressional intent to subject States to suit must be clearly expressed. 86 In the 1989 case of Pennsylvania v. Union Gas Co., 87 the Court—temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers may abrogate the Eleventh Amendment immunity of the states, so long as it does so with sufficient clarity. Twenty five years earlier the Court had stated that same principle, 88 but only as an alternative holding, and a later case had set forth a more restrictive rule. 89 The premises of Union Gas were that by consenting to ratification of the Constitution, with its Commerce Clause and other clauses empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the Eleventh Amendment was a restraint upon the courts and not similarly upon Congress, and that the exercises of Congress’ powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00016 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1641 90 517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory Act authorizing an Indian tribe to sue a State in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact). 91 517 U.S. at 63. 92 134 U.S. 1 (1890). 93 517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–98 (1984). 94 517 U.S. at 72-73. Justice Souter’s dissent undertook a lengthy refutation of the majority’s analysis, asserting that the Eleventh Amendment is best understood, in keeping with its express language, as barring only suits based on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state sovereign immunity that the Court mistakenly recognized in Hans v. Louisiana was a common law concept that ‘‘had no constitutional status and was subject to congressional abrogation.’’ 517 U.S. at 117. The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject to legislative alteration. This ‘‘imperative of legislative control grew directly out of the Framers’ revolutionary idea of popular sovereignty.’’ Id. at 160. 95 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (the Trademark Remedy Clarification Act, an amendment to the Lanham Act, did not validly abrogate state immunity); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (amendment to patent laws abrogating state immunity from infringement suits is invalid); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (abrogation of state immunity in the Age Discrimination in Employment Act is invalid). 96 427 U.S. 445 (1976). states to enforce congressional enactments. The dissenters denied each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, would have held that none existed under Article I. Pennsylvania v. Union Gas lasted less than seven years before the Court overruled it in Seminole Tribe of Florida v. Florida. 90 Chief Justice Rehnquist, writing for a 5–4 majority, concluded that there is ‘‘no principled distinction in favor of the States to be drawn between the Indian Commerce Clause [at issue in Seminole Tribe] and the Interstate Commerce Clause [relied upon in Union Gas].’’ 91 In the majority’s view, Union Gas had deviated from a line of cases tracing back to Hans v. Louisiana 92 that viewed the Eleventh Amendment as implementing the ‘‘fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.’’ 93 Because ‘‘the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.’’ 94 Subsequent cases have confirmed this interpretation. 95 Section 5 of the Fourteenth Amendment, of course, is another matter. Fitzpatrick v. Bitzer, 96 ‘‘based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00017 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1642 AMENDMENT 11—SUITS AGAINST STATES 97 517 U.S. at 65-66. 98 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis supplied). 99 See, particularly, Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (‘‘legislative history generally will be irrelevant’’), and Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 103-04 (1989). 100 Justice Kennedy for the Court in Dellmuth, 491 U.S. at 231, expressly noted that the statute before the Court did not demonstrate abrogation with unmistakably clarity because, inter alia, it ‘‘makes no reference whatsoever to either the Eleventh Amendment or the States’ sovereign immunity.’’ Justice Scalia, one of four concurring Justices, expressed an ‘‘understanding’’ that the Court’s reasoning would allow for clearly expressed abrogation of immunity ‘‘without explicit reference to state sovereign immunity or the Eleventh Amendment.’’ Id. at 233. 101 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). And see Dellmuth v. Muth, 491 U.S. 223 (1989). 102 Following Atascadero, in 1986 Congress provided that States were not to be immune under the Eleventh Amendment from suits under several laws barring discrimination by recipients of federal financial assistance. Pub. L. No. 99-506, § 1003, 100 Stat. 1845 (1986), 42 U.S.C. § 2000d-7. Following Dellmuth, Congress amended the statute to insert the explicit language. Pub. L. No. 101-476, § 103, 104 Stat. 1106 (1990), 20 U.S.C. § 1403. See also the Copyright Remedy Clarification Act, Pub. L. No. 101-553, § 2, 104 Stat. 2749 (1990), 17 U.S.C. § 511 (making States and state officials liable in damages for copyright violations). 103 Kimel v. Florida Board of Regents, 528 U.S. 62, 74-78 (2000). In Kimel, statutory language authorized age discrimination suits ‘‘against any employer (including a public agency),’’ and a ‘‘public agency’’ was defined to include ‘‘the government of a State or political subdivision thereof.’’ The Court found this language to be suffiachieved by Article III and the Eleventh Amendment,’’ remains good law. 97 At the same time as these developments, however, a different majority secured a victory in circumscribing the manner in which Congress could express its decision to abrogate state immunity. Henceforth, and even with respect to statutes that were enacted prior to promulgation of the judicial rule of construction, ‘‘Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute’’ itself. 98 This means that no legislative history will suffice at all. 99 Indeed, at one time a plurality of the Court was of the apparent view that only if Congress refers specifically to state sovereign immunity and the Eleventh Amendment will its language be unmistakably clear. 100 Thus, the Court held in Atascadero that general language subjecting to suit in federal court ‘‘any recipient of Federal assistance’’ under the Rehabilitation Act was deemed insufficient to satisfy this test, not because of any question about whether States are ‘‘recipients’’ within the meaning of the provision but because ‘‘given their constitutional role, the States are not like any other class of recipients of federal aid.’’ 101 As a result of these rulings, Congress began to utilize the ‘‘magic words’’ the Court appeared to insist on. 102 More recently, however, the Court has accepted less precise language. 103 VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00018 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1643 ciently clear evidence of intent to abrogate state sovereign immunity. The relevant portion of the opinion was written by Justice O’Connor, and joined by Chief Justice Rehnquist and Justices Stevens, Scalia, Souter, Ginsberg, Breyer and Stevens. But see Raygor v. Regents of the University of Minnesota, 122 S. Ct. 999 (2002) (federal supplemental jurisdiction statute which tolls limitations period for state claims during pendency of federal case not applicable to claim dismissed on the basis of 11th Amendment immunity) . 104 Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989). 105 Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 206 (1991) (interest in ‘‘symmetry’’ is outweighed by stare decisis, the FELA action being controlled by Parden v. Terminal Ry. 106 See, e.g., Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949), where the majority and dissenting opinions utilize both federal and Eleventh Amendment cases in a suit against a federal official. See also Tindal v. Wesley, 167 U.S. 204, 213 (1897), applying to the States the federal rule of United States v. Lee, 106 U.S. 196 (1882). 107 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 (4th ed. 1983). 108 209 U.S. 123 (1908). Although acknowledging that the Eleventh Amendment was not an issue because the § 1983 suit had been pursued in state court, nonetheless the Court applied its strict rule of construction, requiring ‘‘unmistakable clarity’’ by Congress in order to subject States to suit, in holding that States and state officials sued in their official capacity could not be made defendants in § 1983 actions in state courts. 104 While the Court is willing to recognize exceptions to the clear statement rule when the issue involves subjection of states to suit in state courts, the Court will normally opt for ‘‘symmetry’’ that treats the states’ liability or immunity the same in both state and federal courts. 105 Suits Against State Officials Mitigation of the wrongs possible when the State is immune from suit has been achieved under the doctrine that sovereign immunity, either of the States or of the Federal Government, does not ordinarily prevent a suit against an official to restrain him from commission of a wrong, even though the government is thereby restrained. 106 The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against the official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the State. 107 The doctrine preceded but is most noteworthily associated with the decision in Ex parte Young, 108 a case truly deserving the overworked adjective, seminal. Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiff railroad stockholders brought an action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00019 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1644 AMENDMENT 11—SUITS AGAINST STATES 109 In fact, the statute was eventually held to be constitutional. Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352 (1913). 110 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). 111 Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). 112 Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1875); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900). 113 United States v. Lee, 106 U.S. 196 (1882). See ‘‘Suits Against United States Officials’’ under Article III. The Court sustained the suit against the federal officers by only a 5-to-4 vote, the dissent presenting the arguments that were soon to inform Eleventh Amendment cases. they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt. If the Supreme Court had held that the injunction was not impermissible, because the suit was one against the State, there would have been no practicable way for the railroads to attack the statute without placing themselves in great danger. They could have disobeyed it and alleged its unconstitutionality in the enforcement proceedings, but if they were wrong about the statute’s validity the penalties would have been devastating. 109 In the modern context, the effectuation of federal constitutional rights against state action often depends upon the imposition of affirmative obligations through injunctions, and this relief would be impossible if such an injunction were in effect a suit against a State. In deciding Young, the Court was confronted with inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice Marshall had begun the process in Osborn by holding that suit was barred only when the State was formally named a party, 110 although he was presently required to modify that decision and preclude suit when an official, the governor of a State, was sued in his official capacity. 111 Relying on Osborn and reading Madrazo narrowly, the Court, seeming to treat the barrier to suit as common-law sovereign immunity, held in a series of cases that an official of a State could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the State or in response to a statutory obligation of the State does not make the suit one against the State. 112 Soon, however, the Court began developing a more expansive concept of the Eleventh Amendment and sovereign immunity, beginning with the first case in which the sovereign immunity of the United States was claimed and rejected 113 and the Hans v. Louisiana decision VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00020 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1645 114 134 U.S. 1 (1890). 115 See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889, 1968–2003 (1983); Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. ILL. L. REV. 423. 116 107 U.S. 711 (1882). 117 ‘‘The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done.’’ 107 U.S. at 721. See also Christian v. Atlantic & N.C. R.R., 133 U.S. 233 (1890). 118 123 U.S. 443 (1887). 119 123 U.S. at 500-01, 502. 120 Ayers was a suit by plaintiffs seeking to enjoin state officials from bringing suit under an allegedly unconstitutional statute purporting to overturn a contract between the State and the bondholders to receive the bond coupons for tax payments. The Court asserted that the State’s contracts impliedly contained the State’s immunity from suit, so that express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, inasmuch as any violation of the assumed contract was an act of the State, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505-06. The rationale had been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769, 783 (1882). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North reading broadly the effect of the adoption of the Eleventh Amendment. 114 The two leading cases, as were many cases of this period, were suits attempting to prevent Southern States from defaulting on bonds. 115 In Louisiana v. Jumel, 116 a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the State. 117 Then, In re Ayers 118 purported to supply a rationale for the cases permitting the issuance of mandamus or injunctive relief against state officers in a way that would have severely curtailed federal judicial power. Suit against a state officer was not barred when his action, aside from any official authority claimed as its justification, was a wrong simply as an individual act, such as a trespass, but if the act of the officer did not constitute an individual wrong and was something that only a State, through its officers, could do, the suit was in actuality a suit against the State and was barred. 119 That is, the unconstitutional nature of the state statute under which the officer acted stripped him of the State’s shield against suit, but it did not itself constitute a private cause of action. For that, one must be able to point to an independent violation of a common law right. 120 VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00021 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1646 AMENDMENT 11—SUITS AGAINST STATES Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900). 121 Ayers ‘‘would seem to be decisive of the Young litigation.’’ C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167 (1908). Similarly, in a later case, the Court continued to distinguish Ayers but on grounds that did not in fact distinguish it from the case before the Court, in which it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952). 122 Ex parte Young, 209 U.S. 123, 159–60 (1908). The opinion did not address the issue of how an officer ‘‘stripped of his official . . . character’’ could violate the Constitution, inasmuch as the Constitution restricts only ‘‘state action,’’ but the double fiction has been expounded numerous times since. Thus, for example, it is well settled that an action unauthorized by state law is state action for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913). The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), though eviscerated by Home Tel. & Tel. was not expressly disavowed until United States v. Raines, 362 U.S. 17, 25–26 (1960). 123 Ex parte Young, 209 U.S. 123, 173–74 (1908). In the process of limiting application of Young, a Court majority has recently referred to ‘‘the Young fiction.’’ Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997). 124 E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670, 685 (1982). Although Ayers was in all relevant points on all fours with Young, 121 the Young Court held that the injunction had properly issued against the state attorney general, even though the State was in effect restrained as well. ‘‘The act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of the complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official, in attempting by the use of the name of the state to enforce a legislative enactment which is void, because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subject in his person to the consequences of his individual conduct.’’ 122 Justice Harlan was the only dissenter, arguing that in law and fact the suit was one only against the State and that the suit against the individual was a mere ‘‘fiction.’’ 123 The ‘‘fiction’’ remains a mainstay of our jurisprudence. 124 It accounts for a great deal of the litigation brought by individuals to VerDate Apr<15>2004 13:52 Aug 18, 2004 Jkt 077500 PO 00000 Frm 00022 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1647 125 See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining state welfare officials from denying welfare benefits to otherwise qualified recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits); Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon State through order directed to governor and other officials). On injunctions against governors, see Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits under this doctrine are principles of judicial restraint, constitutional, statutory, and prudential, discussed under Article III. 126 E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). 127 E.g., Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332, 346–49 (1979). 128 E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1977); Louisville & Nashville R.R. v. Greene, 244 U.S. 522 (1917). Property held by state officials on behalf of the State under claimed state authority may be recovered in suits against the officials, although the court may not conclusively resolve the State’s claims against it in such a suit. South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices agreeing the Eleventh Amendment applied divided 4-to-4 over the proper interpretation. 129 E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933); Lee v. Bickell, 292 U.S. 415, 425 (1934). 130 Typically, the plaintiff would be in federal court under diversity jurisdiction, cf. Martin v. Lankford, 245 U.S. 547, 551 (1918), perhaps under admiralty jurisdiction, Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), or under federal question jurisdiction. Verizon Md. Inc. v. Public Serv. Comm’n of Md., 122 S. Ct. 1753 (2002). In the last instance, federal courts are obligated first to consider challenge the carrying out of state policies. Thus, suits against state officers alleging that they are acting pursuant to an unconstitutional statute are the standard device by which to test the validity of state legislation in federal courts prior to enforcement and thus interpretation in the state courts. 125 Similarly, suits to restrain state officials from taking certain actions in contravention of federal statutes 126 or to compel the undertaking of affirmative obligations imposed by the Constitution or federal laws 127 are common. For years, moreover, the accepted rule was that suits prosecuted against state officers in federal courts upon grounds that they are acting in excess of state statutory authority 128 or that they are not doing something required by state law 129 are not precluded by the Eleventh Amendment or its emanations of sovereign immunity, provided only that there are grounds to obtain federal jurisdiction. 130 VerDate Apr<15>2004 14:46 Jun

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