Implied Wavier after Seminole Tribe

01 Jan 1998

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional impediments to the resurrection of the implied waiver doctrine, examining both the scope of Congress's authority under the Spending Clause and, more generally, the Tenth Amendment's protection of state sovereignty. The Article concludes that although Seminole Tribe prevents Congress from unilaterally abrogating the states' Eleventh Amendment immunity when it acts under Article I, nothing bars Congress from using its Article I powers to solicit state waivers of the Eleventh Amendment.