From Chemerinski, Fed Jurisdiction, 5th Ed. pp.431-478
Ways around Eleventh Amendment suits Against State Officers
1. No bar to suits against state officers to enjoin violation of fed law. No authority to violate fed law from the states, so illegal acts are stripped of state authority. State official violating fed law or con is stripped of state official or representative character. (Ex parte Young, 1908)
2. State officials may be sued for money from their own pockets, suit against officer "in individual capacity." State may indemnify officer without changing that analysis because it does so voluntarily.
3. Fed court may grant prospective relief even if costly in the future (welfare recipients from other state get benefits upon arrival in the new state.) Payment for past injury by state prohibited.
4. Ancillary relief in form of attorney fees OK under Section 1988. Ancillary to prospective relief in the injunction.
5. Hafer v Melo. Officer acting in scope of duty is not enough to bar a suit. His was in official capacity when sued, but in individual capacity when inflicted the injury. Pennhurst: suit OK if suit involves liberty or property interest protected by due process of Fourteenth Amendment.
6. Seminole Tribe. No suit against state if law has its own enforcement mechanism. Rejected federal law allowing violation of Eleventh Amendment. Fed law called for negotiation and submission of dispute to mediator. DOT reg has no such mechanism.
7. Idaho v Coeur D'Alene Tribe. May sue in fed court 1) if no state forum to vindicate federal interest; 2) need fed court to enforce or interpret federal law. In the complaint, PA is not enforcing the fed reg requiring confidentiality of substance abuse. Verizon of MD v PSC of MD. no bar to suit against officers when they violate fed law.
8. Constructive waivers will almost never work.
9. Eleventh limits judiciary, not Congress. Congress may override immunity in statutes adopted under Section 5 of the Fourteenth Amendment, "Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Hutto v Finney. Attorneys fees under Section 1988.
10. Statutes validly enacted under Section 5 of Fourteenth Amendment. City of Boerne v Flores. If government is to burden the free exercise of religion (peyote), government must show compelling government purpose and that it used the least restrictive method to do so. Congress is limited to prevent or remedy rights recognized by the Supreme Court stemming from the Fourteenth Amendment. This was done to preserve the role of the Supreme Court as the interpreter of the Constitution. A state may be sued for violation of a federal law only after meeting the stringent test in Flores. They struck down lawsuits based on federal law in 6 decisions reached 5-4. Rejected suits against states as not fitting into a Section 5 violation: 1) patent infringement suit against a state (state may infringe with impunity); 2) librarians suing for age discrimination (Kimel) barred because only rational basis used for age discrimination - all person will age. Age discrimination by states not widespread anyway; old state workers should sue in state court; 3) same logic used to bar fed discrimination claim based on disability (nurse supervisor lost job after time off for breast cancer), federal government could still sue the state, but no damages could be collected.
Permissible federal suits against states because within the scope of Section 5 of Fourteenth Amendment:
1) Hibbs. May sue state employer for violation of Family Leave Act. Gender triggers intermediate scrutiny, age in Kimel only rational basis.
2) Lane. A paralyzed criminal defendant crawled up the steps of the courthouse due to lack of access required by Title II of the ADA, that prohibits governments from discriminating against the disabled. Access to court is a fundamental right.
3) US v Georgia. Paralyzed inmate could not reach toilet in cell. Degrading conditions cruel and unusual punishment.
One may sue a state for discrimination that receives heightened scrutiny, that involves a fundamental right, or if state discrimination is pervasive.
Criticism: Sovereign immunity is not authorized by the Constitution. The above cases striking down suits against suits are conservative judicial activism.
I would add, sovereign immunity was justified by Henry of Bratton by the sovereign's speaking with the voice of God. This is a psychotic delusional justification. It violates the Establishment Clause. At the policy level, if torts are designed to improve a service and to prevent violence, there is no reason state government should be deprived of the benefits of torts.