Converse-Osborn: State Sovereign Immunity, Standing, and the Dog-Wagging Effect of Article III

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Carlos M. Vázquez*

“[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . .  [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].”[1]  Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: the federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact.[2]  In recent years, however, the axiom has sometimes operated in the opposite direction: if the federal courts lack the constitutional power to adjudicate cases based on certain types of substantive federal statutes, the legislature must lack the power to enact the statute in the first place.[3]  This converse operation of the Osborn axiom is reflected in the Court’s decisions on the Eleventh Amendment and state sovereign immunity over the past two decades, culminating in the recent decisions in Allen v. Cooper[4] and PennEast Pipeline Co. v. New Jersey.[5]  Recent standing decisions, including most recently TransUnion LLC v. Ramirez,[6]may reflect a similar doctrinal trajectory in the Court’s standing jurisprudence.

The Eleventh Amendment is, by its terms, a limitation of the jurisdiction of the federal courts.  Until the Court’s 1999 decision in Alden v. Maine,[7] it was widely believed that sovereign immunity did not protect states from being sued in state courts.  The Court’s precedents, in turn, established that Congress had the power to impose primary and remedial obligations on states.[8]  Although the Eleventh Amendment prevented enforcement of the states’ remedial obligations in federal court, the obligations were thought to be enforceable in state courts, subject to Supreme Court review.[9]  In Alden, the Court held that states also enjoy a constitutional immunity from being sued by private parties in their own courts without their consent.[10]  The Alden holding suggested that the immunity reflected in the Eleventh Amendment was not merely an immunity from the jurisdiction of the federal courts, but an immunity from being subjected to certain forms of liability.[11]  As I argue below, the Court’s post-Alden decisions, including its recent decisions in Allen v. Cooper and PennEast Pipeline Co. v. New Jersey, confirm that the states’ sovereign immunity is an immunity from congressionally imposed damage liability to private parties.[12]  Thus, a constitutional provision that purports to limit the jurisdiction of the federal courts has been read to reflect a constitutional limit on Congress’s substantive legislative power.

The Court’s recent decision in TransUnion LLC v. Ramirez may reflect a similar doctrinal trajectory in the context of Article III standing.[13]  Article III imposes outer limits on the power of federal courts to adjudicate cases at the behest of persons who have not suffered an “injury in fact.”[14]  TransUnion involved claims under the Federal Credit Reporting Act (FCRA), in which Congress had imposed on certain entities a damage liability towards certain individuals.[15]  The Court held that some of the plaintiffs lacked standing to seek such damages in federal court because they had not suffered a “concrete” enough injury.[16]  Justice Thomas’s dissent noted that the majority’s decision was a pyrrhic victory for the defendant because the plaintiffs could turn around and sue in state court, where Article III standing limits do not apply.[17]  It is true that standing limits based on Article III do not apply in the state courts.[18]  But this Article argues that the most plausible explanation for the Court’s holding is that Congress lacks the power to entitle persons to damage relief if they have not suffered an Article III injury in fact.  If Congress had validly given the plaintiffs a right to damages from the defendant, and that right could be enforced in state courts, then the plaintiffs’ failure to receive the damages they claimed the defendant owed them would itself have been a sufficient “injury in fact” to support their standing in federal court.  TransUnion can be reconciled with the well-established principle that a legal right to money is a sufficient interest to confer standing only if the decision is interpreted as holding that Congress lacks the power to create the right to damages it created in FCRA.  But that means standing doctrine is not merely jurisdictional.  If understood as holding that Congress in FCRA did not validly create the plaintiffs’ right to damages because their injuries were insufficiently concrete, TransUnion would stand as another example of ostensibly jurisdictional doctrines operating as a limit on Congress’s substantive legislative power.

Scholars have been almost unanimous in disapproving of the Court’s approach to both doctrines.  My previous work on state sovereign immunity falls in this category.[19]  This Article mostly seeks to understand the Court’s conceptualization of these two doctrines, not to defend or criticize it.  Nevertheless, my thesis adds to the existing critiques of the Court’s current approach to both doctrines.  The portion of this Article focusing on state sovereign immunity refines and updates my prior critiques of the Court’s decisions.  With respect to standing, this Article advances a new critique.  The Court in TransUnion did not expressly frame its holding as resting on Congress’s lack of power to create a damage remedy,[20] much less point to a constitutional provision other than Article III as the source of that limit.  The only remotely plausible source is Article II: creating a damage remedy would empower the courts to intervene at the behest of private plaintiffs seeking to enforce the liability, which would in turn impinge upon the Executive’s exclusive power to vindicate the public interest.  But this rationale seems inapplicable to the TransUnion situation.  More importantly, the Article II rationale deduces limits on Congress’s substantive power from concerns about the propriety of judicial intervention.  The jurisdictional tail thus wags a substantive dog.  (Indeed, all examples of the Converse-Osborn phenomenon share this dog wagging feature.)  The upside-down logic necessary to sustain the Court’s doctrine is itself suggestive that something is seriously amiss.

More broadly, this Article’s explication of the Converse-Osborn phenomenon as reflected in the state sovereign immunity and standing cases illustrates the centrifugal tendencies of doctrinal innovations in the jurisdictional field.  Because of the close and complex interrelationship between substance, remedy, and jurisdiction, innovations in one doctrinal area eventually require corresponding adjustments in the other areas, lest the original innovation become a pyrrhic victory (to borrow Justice Thomas’s term).  For some Justices and commentators, such broader effects may well have been anticipated and intended all along; for others, the tales told here should be taken as cautionary ones, evoking images of camels’ noses.

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© 2023 Carlos M. Vázquez.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

* Scott K. Ginsburg Professor of Law, Georgetown University Law Center.  I am grateful to William Buzbee, Richard Fallon, Vicki Jackson, Richard Re, and David Vladeck for helpful comments, and to Megan Bechtel, Gavin Landgraf, and Shaun Rogers for helpful research assistance.

[1]Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 818 (1824).

[2]See id. at 818–19.  Marshall was paraphrasing Alexander Hamilton, who wrote in The Federalist No. 80: “If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative may be ranked among the number.”  The Federalist No. 80, at 476 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[3]I refer to a “substantive” federal statute because, of course, Article III limits Congress’s power to confer jurisdiction on the federal courts.  This Article concerns how purportedly jurisdictional doctrines have been transformed into limits on Congress’s power to enact nonjurisdictional statutes.

[4]140 S. Ct. 994 (2020).

[5]141 S. Ct. 2244 (2021).

[6]141 S. Ct. 2190 (2021).

[7]527 U.S. 706 (1999).

[8]See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985).

[9]See generally Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 Yale L.J. 1683 (1997).

[10]527 U.S. at 754.

[11]See Carlos Manuel Vázquez, Sovereign Immunity, Due Process, and the Alden Trilogy, 109 Yale L.J. 1927, 1930 (2000).

[12]140 S. Ct. 994 (2020); 141 S. Ct. 2244 (2021).

[13]141 S. Ct. 2190 (2021).

[14]Id. at 2204.

[15]Id. at 2200.

[16]Id. at 2214.

[17]Id. at 2224 n.9 (Thomas, J., dissenting).

[18]See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).

[19]See articles cited supra notes 9, 11; infra notes 42, 205.

[20]But cf. infra text accompanying note 202 (noting TransUnion’s negative implication that its standing holding denies Congress the power to create certain “causes of action”).